TMI Blog2016 (9) TMI 1081X X X X Extracts X X X X X X X X Extracts X X X X ..... the State Government, therefore, it is not a fit case where this Court should exercise its judicial discretion to proceed further in the company petition to direct publication or to appoint the provisional liquidator. As a sequel, the instant winding up petition (company petition) is liable to be and is hereby dismissed. - COMP No. 11 of 2015 - - - Dated:- 8-8-2016 - Hon'ble Shri Justice Prashant Kumar Mishra, J. For Petitioner Shri Siddharth Dubey, Advocate For Union of India Shri N.K. Vyas, Asstt. Solicitor General For State of CG Shri P.K. Bhaduri, Govt. Advocate ORDER 1. This petition for winding up has been preferred by the company itself without referring to the relevant clause of Section 433 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pearing for the petitioner company would submit that in view of demand of huge amount of tax, which is a debt, which the petitioner company is unable to pay, therefore, it has become commercially insolvent, therefore, the company is needed to be wound up. 5. On 18-11-2015 the petitioner has also filed two separate applications for stay of recovery of tax for the assessment period 2011-12 2012-13. In the first application it is averred that out of total demand of ₹ 1,68,06,577/- for the said periods the petitioner has already paid an amount of ₹ 75,65,998/-. Similar statement is made in the second application also. 6. Per contra, learned counsel appearing for the State of Chhattisgarh would submit that the petitioner is a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... incorporation, or suspends its business for a whole year; d) if the number of members is reduced, in the case of a public company, below seven, and in the case of a private company, below two; e) if the company is unable to pay its debts; 9. Even if any of the above stated 5 contingencies has arisen in a given case, it is still the discretion of the Court to direct or refuse winding up in view of language of Section 433 which says the company may be wound up by the Court, if the Court is of opinion that it is just and equitable that the company should be wound up. 10. In Dundappa Shivalingappa Adi v. S.G. Motor Transport Co. P. Ltd. and Others (1966) 36 Com Cases 606 (Mysore) (DB), it is held that the provision does not confer o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s to what are the assets and liabilities of the petitioner company in addition to the liability in form of tax dues payable to the State Government under the VAT Act. The petition is silent about the assets of the company. It is equally silent about its balance sheet and the accounts for the last few years to demonstrate that the company has no income and is not carrying any business activities. Merely on bald allegation that the company is unable to pay the tax amount raised by the State Government would not be sufficient enough to proceed further to admit a petition for its publication in the official gazette or to direct appointment of provisional liquidator. If the petition of this nature is allowed, every defaulter who owes huge sum to ..... X X X X Extracts X X X X X X X X Extracts X X X X
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