Whether Corporate Debtor can bar the NCLT to accept the petition of Operational Creditor by raising a dispute on the Demand Notice
Whether Creditor can file application against Corporate Guarantor in case of default by Principle Debtor and petition against principle debtor has already been admitted under the Insolvency & Bankruptcy Code, 2016.
The National Company Law Appellate Tribunal [NCLAT] Judgment dated Sept. 20, 2017 wherein it has been held that a Power of Attorney [POA] Holder is not authorised to file proceedings under IBC and only an ‘Authorised Representative’ by the Board of Directors can file the same.
A partnership firm can participate in a scheme of amalgamation only after converting itself into a company under section 366 of the Act. Since the vesting of properties and liabilities of such partnership firm to the company is by operation of law [Section 368 of the Act], the succession is exempt from capital gains tax pursuant to the provisions of section 47(xiii) of the Income Tax Act, 1961
NCLT held that the principle of imposition of minimum penalty is non-mandatory in compounding of offenses cases, it is necessary to define and understand offense. The term offence has been defined by s 3(38) of General Clauses Act, as any act or omission made punishable by any law for the time being in force.
NCLT has cleared that once a petition is admitted by the NCLT under IBC, both the parties have no right to withdraw the petition. As it can say IBC is not a Recovery Law it is Revival Law.
After admission of Petition under IBC 2016, the nature of petition changes to representative suit and the lis does not remain only between Operational Creditor and Operational Debtor. Therefore, Operational Creditor and Operational Debtor alone have no right to withdraw the Petition after admission.
the issue to be decided in the present case is whether the National Company Law Tribunal is having power to allow the applicants to compound the offence in question, especially when prosecution was already initiated and the same is in advance stage.
Spirit of the Code is first and then comes the other things. The rejection of the Resolution Plan by the CoC even without opening the envelope containing the Resolution Plan on the ground that the same is submitted after the expiry of the stipulated time fixed by the CoC, is certainly against the law/Code.
