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TMI Blog2017 (5) TMI 374X X X X Extracts X X X X X X X X Extracts X X X X ..... uty Commissioner of Income Tax, Circle-10(1), C.R. Building, New Delhi has been filed on 17.03.2017, in terms of the directions issued by this Court by way of order dated 08.03.2017. However, the same is not on record. 2. Counsel appearing on behalf of the Income Tax Department has handed over copies of the said affidavit dated 17.03.2017, in Court today. 3. Counsel appearing for the other parties pray for time to file a response thereto. 4. Let the response be filed within a period of four weeks from today with an advance copy to counsel appearing on behalf of the Income Tax Department, who may file rejoinder thereto, if any, before the next date of hearing. 5. The present petition has had a chequered history as would be evident from the following recital of the procedural facts. 6. A perusal of the decision of the Division Bench, dated 22.08.2013, in CO.APPL.26/2011, CO.APPL.7989/2011, titled as "M/s Taneja Developers and Infrastructure Ltd. & Anr. vs. The Official Liquidator and Ors.", and in CO.APPL.27-29/2011, 8728/2012, 8729/2012, 8730/2012 and 8731/2012, titled as "The Delhi Automobiles Ltd. vs. The Official Liquidator and Anr.", would bring to light the following facts ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . G.S. Suri sought to withdraw the statement he had previously made on 02.02.1998, on the ground that he had made the same without requisite authority from the Board of Directors of DAL, the company which owned the subject property. However, this Court vide order dated 03.02.1998, was pleased to hold that the request to withdraw the statement made by Mr. G.S. Suri, as recorded in the said order dated 02.02.1998 and in particular, the part pertaining to attachment of the subject property, would be considered only if a review of the said order dated 02.02.1998 was sought. d) On 20.02.1998, this Court modified its previous order dated 02.02.1998, directing that the said order dated 02.02.1998 would have no effect till the next date of hearing i.e. 22.05.1998, by which date GAL was directed to make all efforts to repay its creditors, failing which it shall be deemed to be wound up. e) On the next date of hearing i.e. 22.05.1998, no reference was made in the order of the even date qua the subject property, except for a direction to the effect that "....the order dated 20th February, 1998 needs no variation". The said order directed that in view of the statement made by counsel appeari ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be sold; as recorded in sub-paragraph (h) hereinabove) was carried in appeal by both, Taneja and DAL before the Division Bench and came to be decided by the abovementioned order dated 22.08.2013. 7. A further perusal of the said order dated 22.08.2013 reveals that the principal submission made on behalf of DAL before the Division Bench, was to the effect that the so-called deemed attachment of the subject property, directed by way of order dated 02.02.1998, was stayed by the Court on 20.02.1998 till the next date of hearing, and on the next date i.e. 22.05.1998, the Court directed that "...the order dated February 20, 1998 needs no variation.". This submission, as urged on behalf of DAL, was founded on a reading of the following orders of this Court: i. Order dated 02.02.1998 (relevant portion of which has been extracted in sub-paragraph (b) of paragrah (6) hereinabove); ii. Order dated 03.02.1998 (whereby the request to withdraw the statement made by Mr. G.S. Suri, as recorded in the order dated 02.02.1998, was directed to be considered only if a review of the said order dated 02.02.1998 was sought); and iii. Order dated 20.02.1998 (whereby it was directed that the order dated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... previous orders, especially the order of winding up in a pre-emptory manner, (which was part of the composite order rendered on 22.05.1998) has not been disputed. Equally, the order sheet in the company's winding up proceedings reveals that the attachment of the suit property was never vacated or modified. (g) The review petition and a subsequent application for amendment thereof, made by DAL were rejected. The effort to revive those applications was also unsuccessful. DAL had earlier appealed, albeit unsuccessfully, against the order of 02.02.1998, to the Division Bench. 10. In view of the foregoing findings, the Division Bench negated the submissions made on behalf of DAL as well as Taneja, that the attachment order passed with respect to the subject property could not bind them. 11. Consequently, the appeals of DAL as well as Taneja were held to be meritless and rejected. Resultantly, the order dated 04.04.2011 under appeal, inasmuch as, has levied the attachment on and directed to the Official Liquidator to take possession and sell the subject property, was unequivocally upheld. 12. Thereafter, on 08.10.2013, in an application being CO.APPL.1808/2013, instituted on beh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rds that "there is no further appeal pending as on date", is incorrect, inasmuch as, Special Leave Petition Nos. 32508/2013 & 36873-75/2013 have been instituted by the latter, assailing the decision of the Division Bench dated 22.08.2013. However, it is an admitted position that till date, there is no order of stay qua the directions issued by this Court by way of order dated 04.04.2011, which merged into the decision of the Division Bench dated 22.08.2013. 14. However, for reasons best known to the Official Liquidator, which need not be gone into at this juncture and which may require calling for an appropriate explanation during the course of the present proceedings; no steps whatsoever were taken by the Official Liquidator to secure the possession of the subject property. 15. Subsequently on 11.09.2014, on the report of the Official Liquidator being OLR 145/2014, this Court rendered the following order: "Report No.145/2014 The Official Liquidator has filed the report indicating the amount admitted by the Official Liquidator towards the dues of the unsecured creditors and the workmen. The Official Liquidator has stated that the claim of the Income Tax Department has been rej ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aneja, it would be profitable to extact the relevant portion of report No.145/2014, filed on behalf of the Official Liquidator as follows: "7. That as per direction of this Hon'ble Court of order dated 18.02.2014 it is submitted that in response to the notices advertised by the Official Liquidator on 10.04.2008, inviting the claims it had received the claims from the creditors of the company. The claims received by this office were scrutinized/examined and adjudicated as per law. The claims adjudicated and settled as detailed as under: UNSECURED CREDITORS:- S.No. NAME OF AMOUNT CLAIMED AMOUNT ADMITTED REMARKS 1. Ms. Kalpana Jain 3,92,370/- 87,247/- Admission letter issued on 12.11.08 2. Dr. A.P. Jain 29,52,430 6,50,472 Admission letter issued on 12.11.2008 3. Shri Alok Jain 12,85,490/- 2,84,365/- 12.11.2008 4. Shri Chitra Jain 9,06,762, 4,20,460 12.11.2008 5. Dr. A.P. Jain & Sons (HUF) 2,05,829/- 45,709/- Admission letter issued on 12.11.08 6. Shri Prakash Mulchandani 70,0000/- 58,413/- Admitted as unsecured Creditors 7. M/s Rocksmelt Company (India Ltd.) 66,72,960/- 12,39,000/- Admitted, admission letter issued 8. M/s. Goyal MG Gase ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... im submitted on 09.03.2004) 54,277.33 Claimant has been asked to provide the document to proof his debts. 2. Mr. Mahavir Singh (Employee) (Claim submitted on 09.03.2004 received from JVG Section 07.01.2013) 37,012/- Claimant has been asked to provide the document to proof his debts. 3. Mr. Sanil (Employee) (Claim submitted on 09.03.2004) 35,433/- Claimant has been asked to provide the document to proof his debts. 4. Mr. Gyan Chand (Employee) (Claim filed after due date) Amount not specified Rejected as the claimant has not got the delay condoned. 5. Mr. Akali Singh (Employee) (Claim filed after the due date) Amount not specified Rejected as the claimant has not got the delay condoned. xxxx xxxx xxxx xxxx xxxx xxxx xxxx xxxx 12. Shri Ujval Sagar Suri, S/o Shri Sagar Suri, vide his letter dated 12.11.2013 & 17.01.2014 has stated that out of the total debts of Rs. 311 lacs, owed by the company as on 2.2.1998, in respe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dmitted do not include any component of interest. However, to balance of equities for all parties, this court may consider grant of some interest. However, Rule 156 of the Companies (Court) Rules, 1959 provides the payment of interest to the maximum of 4% on any debt or certain sum, payable at a certain time or otherwise where on interest is not reserved or agreed for, and which is overdue at the date of the winding up order and the creditors for major debts have been given interest in terms of decree awarded in their favour." 17. A plain reading of the above paragraphs of the report No.145/2014 would show that the Official Liquidator has determined the outstanding liability qua the company in provisional liquidation to the extent of Rs. 6.42,63,759.15, without interest. It would further reflect that the claim of the Income Tax Department qua the statutory dues, in relation to GAL have been rejected, in view of the circumstance that the latter was unable to produce the relevant material in that behalf. 18. At this juncture, it would be appropriate to observe that in the affidavit filed on behalf of the Income Tax Department dated 17.03.2017 authored by Ms. Anita Meena, the Deputy ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... quidator to discharge and pay all the existing and future liabilities, including all the dues owed to various secured and unsecured creditors of GAL. (b) Despite repeated opportunities both, DAL and GAL have failed, avoided and neglected to disburse and discharge the said outstanding liability. 23. Therefore, in view of the foregoing facts and circumstances, it is considered appropriate, at this stage in the first instance, whilst awaiting the decision of the Hon'ble Supreme Court in the Special Leave Petitions instituted on behalf of Taneja and DAL, to direct the Official Liquidator to comply with the direction issued by this Court by way of the order dated 08.10.2013 (relevant portion of which has been reproduced in paragraph (12) hereinabove), insofar as, it required the Official Liquidator to take over possession of the subject property. The Official Liquidator is directed to comply with the direction contained in the order dated 08.10.2013, forthwith. 24. The order dated 11.09.2014 (reproduced in paragraph (15) hereinabove), rendered by this Court is modified accordingly. 25. The Official Liquidator is directed to file a report in compliance with the present order, on or be ..... X X X X Extracts X X X X X X X X Extracts X X X X
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