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Case Laws
Showing 301 to 320 of 659 Records
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2007 (11) TMI 407
Winding up - Circumstances in which a company may be wound up - Held that:- The learned Company Judge should have either accepted the compromise making it as a part of the final order (decree) or could have refused to accept the said compromise with a reasonable ground for not accepting the same and in such case only he could have proceeded on merits to decide whether winding up was necessary or not. In this connection we may state that this court has noted the oral submissions made by the parties that number of winding up proceedings have been preferred against the company and in many of them such compromise petitions have been filed. For the said reason we are not deliberated on the question whether the winding up is necessary or not, which required determination by the learned Company Judge.
In fine, the appeal is allowed and the matter is remanded to the learned Single Judge for fresh determination taking into consideration the compromise petition filed by the parties and then to dispose of the matter in accordance with law.
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2007 (11) TMI 406
Winding up of the sick industrial company, under section 20(2) of the SICA - Whether the company judge exercising powers under section 20(2) of the Sick Industrial Companies (Special Provisions) Act, 1985, is bound by the recommendations/opinion of the Board for Industrial and Financial Reconstruction ("the BIFR") under section 20(1) of the SICA recommending winding up of the company ?
Held that:- Order of the learned single judge ordering winding up of the company solely on the basis of the opinion of the Board cannot be sustained. The learned judge did not form his own opinion in the matter. As held above, the company judge should have formed his own opinion and thereafter was bound to follow the Companies (Court) Rules, 1959, from the stage of advertisement of the petition of winding up onwards.
In view of the above discussion the impugned order is set aside and the matter is remanded to the learned single judge who shall consider the opinion of the Board in the light of the law as mentioned hereinabove pass such orders on the petition as he deems fit.
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2007 (11) TMI 405
Demerger - Compromise and arrangement - Held that:- Find force in the submissions of learned counsel for the petitioners as objections of of the Regional Director could not be put against the petitioners at the time of considering the sanctioning of the scheme of arrangement. Further, as rightly contended by learned counsel for the petitioners, the petitions filed under sections 391 to 394 of the Companies Act are like a single window system and the petitioners could not be burdened with taking out various applications which are cumbersome in nature. Further, learned counsel for the petitioners, has rightly pointed out that, if necessary, the petitioners could always go before the Registrar of Companies for obtaining the necessary approval even after the scheme of arrangement is sanctioned by this Court. Proposed scheme of arrangement allowed.
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2007 (11) TMI 404
Winding up - Liability for fraudulent conduct of business - Held that:- In the light of the settled legal principles, if the report of the official liquidator dated 5-4-2005, filed in support of the application is considered, it will reveal that the alleged misfeasance and non-feasance are general in nature without pinpointing a specific act of dishonesty and misappropriation on the part of the individual ex-directors. Therefore, on the basis of such general and sweeping allegations, this Court cannot proceed against the respondents under sections 542 and 543 of the Companies Act. As the report of the official liquidator is found wanting with regard to material particulars and specific acts of commissions and omissions, which are a must to proceed against the ex-directors under sections 542 and 543 of the Act, have no hesitation in rejecting this application.
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2007 (11) TMI 403
Issues involved: Approval of scheme of arrangement between transferor and transferee-companies, objections raised by Regional Director, compliance with Companies Act
Approval of scheme of arrangement:
The petition sought confirmation of the scheme of arrangement between the transferor and transferee-companies, focusing on demerging the Jindal Invest Division. A previous order had dispensed with the need for shareholder and creditor meetings, with only the creditors of the transferor-company required to convene a meeting. The creditors voted overwhelmingly in favor of the scheme, with no objections raised during the process. The date of the hearing was duly advertised in newspapers to ensure transparency and compliance with legal requirements.
Objections raised by Regional Director:
The Regional Director raised two objections against the scheme. Firstly, it was claimed that the individual assets and liabilities of the Jindalinvest Division were not adequately detailed in the scheme. However, an affidavit was filed to address this concern, ensuring compliance with Form 42 if the scheme was approved. Secondly, the Regional Director objected to a specific clause in the scheme regarding the allotment of shares, arguing it contradicted the valuation report. The scheme indicated shares would be allotted to the transferor-company, while the valuation report suggested shares should go to the shareholders. The court deemed both objections as untenable and rejected them, emphasizing the correct interpretation of the scheme's provisions.
Compliance with Companies Act:
Apart from the objections raised by the Regional Director, no other objections were received against the proposed scheme of arrangement. Consequently, the court allowed the petition and approved the scheme of arrangement, directing the filing of a certified copy of the order with the Registrar of Companies within 30 days. The court's decision sanctioned the scheme, ensuring compliance with the Companies Act and signaling the formal approval of the arrangement between the involved companies.
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2007 (11) TMI 402
Whether a suit against a guarantor would be covered by the protection provided under section 22(1) of SICA?
Held that:- It will be fit and proper that the matter should be referred to a larger Bench to resolve the existing anomaly resulting from the different views expressed in the two referred cases.
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2007 (11) TMI 401
Whether Accounting Standard 22 (AS 22) entitled "accounting for taxes on income" insofar as it relates to deferred taxation is inconsistent with and ultra vires the provisions of the Companies Act, 1956 (‘the Companies Act’), the Income-tax Act, 1961 (‘Income-tax Act’) and the Constitution of India?
Held that:- Appeal dismissed. Before the Calcutta High Court, the impugned Notification adopting AS 22 was also challenged on the ground that the provisions of AS 22 insofar as it relate to ‘deferred taxation’ is violative of articles 14 and 19(1)(g) of the Constitution of India. In this connection, it was pleaded that by making AS 22 mandatory, the appellants ‘companies will suffer erosion of its net worth. That, as a result, the debt equity ratio will also increase and that the lenders may recall the loans and thereby the appellants’ rights to carry on business in future would be violated. Although, the aforestated challenge was pleaded in the writ petition, when the matter came for hearing before the High Court, it appears that the said grounds were not argued. According to the appellants, implementation of AS 22 would result in reduction of profits and reserves. In the circumstances, we do not wish to express any opinion on the constitutional validity of the said AS 22. Whether the said Standard constitutes a restriction on the rights of the appellants to carry on business under article 19(1)(g) or whether the said Standard is violative of article 14 are questions on which we express no opinion. We keep those questions open. Suffice it to state that, in the present case, we are of the view that the said AS 22 is neither ultra vires nor inconsistent with the provisions of the Companies Act, including Schedule VI.
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2007 (11) TMI 400
Whether the surcharge is included in the interest and damage as appearing in clause 5.04 of the approved scheme?
Whether delayed payment surcharge is included in interest or the damages in view of the conceded position that no interest was levied?
Held that:- The High Court has not referred to various stands taken and urged before it. Specific reference was made to Board’s letter dated 18-6-2003 to Lord Krishna Textile Mills, and another letter dated 20-6-2003 in the context of waiver of delayed payment surcharge. Reference was also made to letter dated 7-9-2005 of the Corporation to the NTC that it has been decided to act as per decision taken in Lord Krishna Textile Mills. Reference was also made to letter dated 3-3-2003 of the Special Secretary, Government of Uttar Pradesh addressed to BIFR.
In the circumstances, the matter is remitted to the High Court with the following directions that the BIFR shall be moved by the parties to clarify whether delayed payment surcharge is included in interest or the damages in view of the conceded position that no interest was levied. The order of the BIFR shall be placed on record before the High Court. The parties shall move the BIFR within one month and BIFR is requested to pass necessary orders within two months thereafter.The effect of waiver in case of Lord Krishna Mills case shall be duly considered.
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2007 (11) TMI 399
Failure on the part of the appellant to serve a proper notice strictly in terms of proviso appended to section 138 of the Negotiable Instruments Act whether would lead to quashing of a criminal proceedings initiated by II Additional Sessions Judge
Held that:- Appeal dismissed. As no demand was made for payment of the cheque amount, the opinion that the impugned judgment cannot be faulted.
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2007 (11) TMI 398
Whether entertainment tax was payable by the appellant in respect of a fashion show held at Gorakhpur in Uttar Pradesh on July 9, 2000 at St. Andrews Inter College for the selection of "Mr. Gorakhpur" and "Miss Gorakhpur"?
Held that:- Appeal dismissed. We are inclined to agree with Mr. Dwivedi that the fashion show was held with full knowledge that entertainment tax was payable in respect thereof and that though tickets may not have been issued in respect of the programme and only invitation cards had been issued, the same was merely a subterfuge for the purpose of evading and/ or avoiding payment of entertainment tax. It is difficult to believe that the fashion show was held with the object of educating prospective students who would be interested in joining the Institute of Art, Fashion Designing and Modelling and was, therefore, exempt under section 11(3) of the 1979 Act, as the advertisement referred to above indicates the object of the show was to invite people to come and watch the new world of glamour and modelling and to see the world of exotic fashion in Gorakhpur itself.
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2007 (11) TMI 397
Whether turnover of the base production in accordance with clause (6) of the Notification No. 1093 dated July 27, 1991 has to be taken up for the whole of the assessment year?
Held that:- Appeal dismissed.Intention of the Legislature is clear and unambiguous. Exemption is to be given on the turnover of sale of goods in an assessment year in excess of the base production. We do not find any substance in the submission advanced on behalf of the appellants
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2007 (11) TMI 396
Whether the sale was within the State or the sale was inter- State?
Held that:- Appeal dismissed. The goods which were triggered from Rourkela and sold to the subsidiaries of the CIL through the appellant's consignment agents were essentially meant to be sold to the subsidiaries of the CIL and the movements of goods primarily triggered from Rourkela and were sent to the subsidiaries of the CIL amounted to inter-State sale and the view taken by the Division Bench of the Orissa High Court is correct.
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2007 (11) TMI 395
Penalty levy - Held that:- Appeal allowed. It is irrational that as against a tax liability of Rs. 3,006, penalty of Rs. 4,39,000 was to be imposed. Though in all cases quantum would not be a relevant factor, but on analysing the scheme of the statute it is clear that the stress is on the contravention. The contravention essentially is of admitting persons without valid ticket and at the relevant point of time, had no nexus with the number of persons. To make the provision stringent the shift has been made to per person. But the amendment has no retrospective effect and is not clarificatory.
As noted the amendment does not appear to be clarificatory in nature as contended by learned counsel for the respondent-State. The view of the High Court, therefore, is not correct. The conclusion of the Taxation Board was the correct view.
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2007 (11) TMI 394
Whether the small-scale industry which was engaged in bottling of anhydrous ammonia could be said to be entitled to the exemption from payment of sales tax on the ground that it was manufacturing such goods since there was a general exemption offered by the Andhra Pradesh Government by G.O. Ms. No. 117 dated March 17, 1993 to the small-scale industry?
Held that:- Appeal allowed. Accepting the contention of the appellant that a liberal view of G.O. Ms. No. 15/74 dated June 25, 1974 would have to be taken.
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2007 (11) TMI 374
Capital or Revenue Expenditure- The assessee paid Rs. 24,22,063 to a co-operative society on account of contribution for common effluent treatment plant and claimed deduction thereof. The Assessing Officer disallowed the amount. The Commissioner (Appeals) and Tribunal held that the assessee had made only a contribution for lying down the pipeline for the purpose of carrying effluent discharge to protecting business as on going entity. Held that- there was no merit in the appeal, dismiss the appeal.
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2007 (11) TMI 373
Business expenditure- The assessee claimed deduction under section 43B of the Income Act of the amount contributed towards the provident fund and the employee’ state insurance. The Assessing Officer disallowed the claims on the ground that the amount was paid subsequent to the due date as specified in the second proviso to section 43B read with the Explanation to clause (va) of section 36(1) of the Act. The Commissioner (Appeals) set aside the order passed by the Assessing Office. Tribunal set aside the order of the Commissioner (Appeals) and restored order passed by Assessing Officer. Held that- non compliance with the second proviso to section 43B of the Act would result in disallowance so far as these payments were concerned. Since admittedly the assessee had failed to ensure compliance by the depositing the amount before the due date, the benefit of section 43B was rightly denied by the Assessing Officer and Tribunal.
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2007 (11) TMI 372
Banking and other Financial Services - Hire Purchase - service tax during the period from 16.7.2001 to 31.12.2003 - Held that: - the appellants are simply lending money as per the records available and receiving interest. The lending during the relevant period was not a taxable service. Even if is held that the appellant is giving money under the "Hire purchase Scheme" it is clearly seen that the Mumbai Bench "Hire purchase Scheme", it is clearly seen that the Mumbai Bench of the CESTAT in the case of Bajaj Auto Finance-[ 2007 -TMI - 1546 - CESTAT,MUMBAI] has clearly drawn a distinction between Hire purchase Service which is Taxable and Hire purchase Finance Service which is not a taxable service. In any case, it is very clear that the appellants have not rendered the services of Hire purchase
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2007 (11) TMI 370
Voluntary Retirement Scheme under section 10(10C) and 89 – Exemption – In this case Rajasthan High Court on the basis of the findings of the Tribunal held that assessee is entitled to relief under section 89, as relief under section 89 is entirely different exemption under section 10(10C). The appeal is dismissed. – Decision in favor of assessee – against the revenue
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2007 (11) TMI 366
Refund of amount deposited by the assessee during the course of investigations – Non challenge to appropriation order - Deputy Commissioner passed an order to appropriate the said amount alleging undervaluation of excisable goods sold through depots - This order was not questioned by the assessee. The assessee has also paid a sum of Rs. 1,000/- which was imposed as penalty. In other words, the order of Deputy Commissioner, Central Excise, Bellary, has become final and conclusive. – Refund application for said amount filed on ground of adjudication of duty payable - Even if we accept the contention raised by the learned Counsel for the assessee that there was no adjudication of the duty payable by the original authority, when the original authority has passed an order to appropriate the amount of Rs. 9,70,524/- and imposed a penalty of Rs. 1,000/-, it was for the assessee to challenge the order of appropriation. - Revenue is justified in contending that the refund claim of the assessee was not maintainable. Therefore, we are of the opinion that the Tribunal was not justified in allowing the appeal of the assessee in directing the Revenue to refund the amount which was already appropriated in the original proceedings.
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2007 (11) TMI 363
Whether the Appellate Tribunal and the Commissioner (Appeals) were justified in dismissing the Cross Objections filed by the assessee without considering the appeal filed by the Revenue before the Commissioner of Customs & Central Excise (Appeals) was under sub-section (4) of Section 35E of the Central Excise Act 1944? - It is also not in dispute that the assessee did not file any appeal as required under Section 35E of the Central Excise Act, 1944. However the Revenue filed an appeal before the Commissioner of Customs & Central Excise (Appeals) on the ground that classification of certain items by the Adjudicating Authority was erroneous under Section 35B(2) of the Central Excise Act, 1944. Pursuant to the appeal filed by the Revenue, the Commissioner of Customs, Central Excise (Appeals) by his notice dated 20-2-2001 called upon the assessee herein to file Cross-objections – Cross objections held as not maintainable by tribunal – Held that Section 35E(4) could not have been invoked by the assessee to file cross objections if suo motu power was exercised by the Commissioner of Appeals - When such cross objections were filed, it is most unfortunate that Commissioner of Appeals as well as the Tribunal without considering the fact that cross objections were filed pursuant to an appeal filed by the Revenue under Section 35E(2) of the Act have dismissed cross-objections erroneously. – we have to answer the question of law in favour of the assessee and the order of the Commissioner of Appeals as well as that of the Tribunal are required to be set aside and the matter is required to be remanded to the Commissioner of Appeals only to consider cross-objections filed by the assessee after hearing both the parties
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