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income-tax Officer Vs. Official Liquidator of Golcha Properties P. Ltd. (In Liquidation) - Court Judgment

LegalCrystal Citation
SubjectCompany
CourtRajasthan High Court
Decided On
Case NumberS.B. Company Petition No. 5 of 1977
Judge
Reported in[1979]49CompCas251(Raj); [1979]117ITR377(Raj); 1977()WLN701
ActsIncome-tax Act, 1961 - Sections 178 and 210; Companies Act, 1956 - Sections 446(1), 476 and 520
Appellantincome-tax Officer
RespondentOfficial Liquidator of Golcha Properties P. Ltd. (In Liquidation)
Appellant Advocate S.M. Mehta, Adv.
Respondent Advocate J.W. Kaul, Adv.
Cases ReferredOfficial Liquidator v. Deshpande
Excerpt:
companies act, 1956 - section 446(1) and income tax act, 1961--section 210 advance tax company in liquidation leave granted to petitioner to issue notice in connection with advance tax court to pass orders to safe guard interest of company & its creditors. - .....(accounting year 1977-78) and to issue requisite notices for the purpose.3. on behalf of the official liquidator, it is contended that no leave should be granted to the petitioner for the payment of advance tax as the income-tax of the company in liquidation is not liable to be taxed. it was further contended that notice of this application be issued to all the parties in d.b. special appeal no. 4 of 1976, in view of the fact that the official liquidator is estopped from making any payment to the income-tax department or to the creditors of the company in liquidation by the order of the court.4. on behalf of the petitioner, reliance has been placed on m.r. agarwal, ito v. official liquidator, gotcha properties p. ltd. , wherein it has been held as under (head note):' where the.....
Judgment:

P.D. Kudal, J.

1. A petition under Section 446(1) of the Companies Act, 1956, has been moved on behalf of the ITO, Central Circle-IV, Jaipur.

2. On behalf of the petitioner, it has been prayed that leave may be granted to the petitioner to make order or orders under Section 210 of the I.T. Act, 1961, requiring the company (in liquidation) to pay to the credit of the Central Government advance tax as contemplated by that section in respect of the assessment year 1978-79 (accounting year 1977-78) and to issue requisite notices for the purpose.

3. On behalf of the official liquidator, it is contended that no leave should be granted to the petitioner for the payment of advance tax as the income-tax of the company in liquidation is not liable to be taxed. It was further contended that notice of this application be issued to all the parties in D.B. Special Appeal No. 4 of 1976, in view of the fact that the official liquidator is estopped from making any payment to the income-tax department or to the creditors of the company in liquidation by the order of the court.

4. On behalf of the petitioner, reliance has been placed on M.R. Agarwal, ITO v. Official Liquidator, Gotcha Properties P. Ltd. , wherein it has been held as under (head note):

' Where the business of a company which is in liquidation is carried on under Section 457(1)(b) of the Companies Act' for the beneficial winding up of the company ' the payment of income-tax would be a part of the ' costs and expenses of winding up within the meaning of Section 530(6) of the Companies Act. Section 4 of the Income-tax Act, which is the charging section, provides, inter alia, for the payment of income-tax in advance where it is so payable under any provisions of that Act. Sections 207 to 219 of the Income-tax Act deal with advance payment of income-tax and that payment is really a mode of paying income-tax in a case falling within the purview of those sections. Hence, where liability to pay advance tax arises in the case of a business run by a company which is being wound up, the official liquidator can be required to retain the amount payable therefor under Section 530(b) of the Companies Act as part of the expenses of winding up to the exclusion of the claims for the discharge of preferential debts.'

5. Reliance was placed on Kondaskar, Official Liquidator v. Deshpande [1972] 83 ITR 655, wherein it has been held as under (head note):

' The Income-tax Officer is entitled to commence or continue assessment or reassessment proceedings in respect of a company ordered to be wound up by the court, without obtaining leave of the court under Section 446(1) of the Companies Act, 1956.

Held, that the Income-tax Officer had jurisdiction to issue reassessment notices under Section 148 of the Income-tax Act, 1961, to reopen the assessments for the assessment years 1950-51 to 1955-56 of a company ordered to be wound up by the High Court in 1959, without obtaining leave of the High Court under Section 446(1) of the Companies Act, 1956.

The expression 'other legal proceeding' in Sub-section (1) and the expression ' legal proceeding ' in Sub-section (2) of Section 446 of the Companies Act, 1956, convey the same sense and the proceedings contemplated by both the sub-sections must be such as can appropriately be dealt with by the winding-up court. The liquidation court cannot perform the functions of the Income-tax Officer while assessing the amount of tax payable by the assessee, even if the assessee be a company which is being wound up by the court. There is no principle on which the liquidation court should be vested with the power to stop assessment proceedings for determining the amount of tax payable by the company which is being wound up. The liquidation court would have full power to scrutinise the claim of the revenue after income-tax has been determined and its payment demanded from the liquidator. It would be open to the liquidation court then to decide how far, under the law, the amount of income-tax determined by the department should be accepted as a lawful liability on the funds of the company in liquidation. At that stage, the winding-up court can fully safeguard the interests of the company and its creditors.'

6. Reliance was also placed on ITO, Ernakulam v. Offl, Liq., Swaraj Motors (P.) Ltd. : [1978]111ITR77(Ker) , wherein it has been held as under:

'The expression 'costs, charges and expenses' referred to in Sections 520 and 476 are very general. In this will come the cost of repairs, payment of rent and tax, cost of preservation of any property, cost of realisation including costs of litigation and all expenses incurred with the leave of the court in the winding up. Income-tax payable at the winding up also is an expense in the winding up. Income-tax is a necessary consequence of the acts performed by the liquidator in the course of the liquidation for the purpose of realising the assets of the company.

Consequently, before the assets are distributed among the creditors, tax is payable as provided for in Section 520 read with Section 476 and in the case of an insolvent company the power under the above sections can be invoked by the court and the court can direct the liquidator to pay the tax demand of the Income-tax Officer, before distributing the dividend.'

7. The contention of the learned counsel for the petitioner is that the ITO functions under the statutory provisions of the I.T. Act, 1961 and, it is not necessary to obtain any leave from the court for issuing notice for payment of advance tax. It was also contended that in view of the provisions of Sections 476 and 520 of the Companies Act, 1956, income-tax is a necessary consequence of the acts performed by the liquidator in the course of liquidation for the purpose of realising the assets of the company. Reliance was placed on Section 530{l)(a) of the Companies Act, 1956.

8. On behalf of the official liquidator, it was contended that the ITO must take leave of the court before issuing notice under Section 178 of the I.T. Act, 1961. Reliance was placed on Offl Liq., Golcha Properties Pvt. Ltd. v. ITO . Reliance was also placed on CIT v. Official Liquidator, Golcha Properties (Pvt.) Ltd. , wherein it has been held that though the ITO may quantify the tax and notify the same to the liquidator he cannot further direct for freezing of any amount. Tax debt being an unsecured debt is to be treated pari passu with other unsecured debts. The liquidator has to act under the directions of the company judge and is not bound by directions of income-tax authorities.

9. Reliance was placed on In re Garner Motors Ltd. [1937] 1 Ch. 594 (Ch D), wherein it has been held that the scheme has a statutory operation and is quite different from an agreement signed by the parties, and it is not -necessary for the scheme to reserve the rights of those debtors.

10. On behalf of the official liquidator, it was contended that advance tax has been paid in the last two years to the income-tax department on an undertaking given by the CIT. It was contended that this year the CIT has not given any such undertaking. It was further contended that the income-tax department is bound by the scheme drawn up in accordance with the order of this court dated December 15, 1975, inasmuch as the income-tax authorities are a party to the scheme and, now, they cannot resile from the same. It was also contended that income of the company in liquidation has, in fact; not come within the taxable limits. The profit appears to have accrued only because the 4% interest which was payable to the creditors has not been paid. In such circumstances, it was requested on behalf of the official liquidator that leave to issue notice to the official liquidator under the I.T. Act should be refused.

11. On behalf of the petitioner, it was contended that the scheme contained in the order dated December 15, 1975, has not yet become operative and, as such, it has no binding effect.

12. The respective contentions of the learned counsel for the parties have been considered and the record of the case carefully perused. It has been stated at the Bar that an appeal has been filed against the order of the court dated December 15, 1975, and that appeal is still pending against the order of this court dated April II, 1973, in Misc. Application No. 51 of 1977 in Company Petition No. 9 of 1966 in the matter of M/s. Golcha Properties Pvt. Ltd. (in liquidation). An application was moved by the income-tax department praying that the 4th dividend may not be paid to the creditors. This application was rejected on July 27, 1977. Against this order, the income-tax department has filed D. B. Civil Misc. Company Petition No. 6 of 1977, which is still pending. The order dated July 27, 1977, is stated to have been stayed.

13. As the order dated December 15,4975, and the order dated July 27, 1977, are sub judice before the Division Bench, it is neither expedient nor proper, under these circumstances, to express any opinion regarding the points which have been alleged by the parties, touching the subject-matter contained in these two appeals. In Kondaskar, Official Liquidator v. Deshpande, ITO : [1972]83ITR685(SC) , it was held by the Supreme Court that the ITO is entitled to commence or continue assessment or reassessment proceedings in respect of a company ordered to be wound up by the court, without obtaining leave of the court under Section 446(1) of the Companies Act, 1956. It has been further held that it would be open to the liquidation court then to decide how far, under the law, the amount of income-tax determined by the department should be accepted as a lawful liability on the funds of the company in liquidation. At that stage, the winding-up court can fully safeguard the interests of the company and its creditors.

14. In Golcha Properties Pvt. Ltd. v. ITO , it was held that the ITO must take leave of the court before issuing notice under Section 178 of the I.T. Act.

15. Taking into consideration the ratio decidendi laid down in the above referred rulings, leave is hereby granted to the petitioner to issue notice in connection with the advance tax pertaining to the year 1978-79 (accounting year 1977-78). It would, however, be open to the court, after the tax liability has been quantified, to pass such orders as are deemed fit and proper to safeguard the interests of the company and its creditors.


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