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TMI Blog2017 (9) TMI 1571X X X X Extracts X X X X X X X X Extracts X X X X ..... s without informing the Official Liquidator of the proceedings pending before it despite the fact that winding up order was passed in this case on 18.08.2008. 2. The claim of the Customs authorities relate to payment of the custom duty of Rs. 52.00 Lac along with simple interest @ 15% payable by the respondent company in liquidation from the date of the import till the actual payment, since it had not filed any evidence of fulfilling its export obligations. The penalty of Rs. 1.00 Lac was also levied upon the respondent company. This order of the Commissioner Customs was served by speed post at the registered office of the respondent company at S-61, Greater Kailash-II, New Delhi, which on 10.05.2011 admittedly was in possession of the Off ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dation proceeding are going on against the Ex-director of the Company (in liqn). The next date of hearing of this case 22-09-2011 before the Hon'ble High Court of Delhi. (SANJAY YADAV) DY. OFFICIAL L.IQUIDATOR DELHI HIGH COURT" 4. The Official Liquidator also wrote a letter No.3720 dated 07.12.2013 to the office of Commissioner of Customs and it reads as under : "Sir With reference to your claim in form No 66 filed on 22-07-2013 to this office I am to say that, on examination of your claim it is observed that there is no supporting documents pertaining to your claim. You are therefore requested to provide the following documents at the earliest. 1 Copy of detailed computation of your claim as mentioned in your affidavit with proo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 0/- (Customs Duty Rs. 52,00,000/- + Interest of Rs. 1,05,30,000/- & Penalty of Rs. 1,00,000/-). Yours faithfully, Deputy Commissioner of Customs (Recovery)" 6. However despite calling for the claim in proper format supported by documents, strangely enough, the Official Liquidator rejected the claim on the plea that it was not informed of the proceedings before the Commissioner of Customs and hence could not contest the levy of duty/penalty upon the respondent. 7. In S.V. Kondaskar, Official Liquidator and Liquidator of the Colaba Land & Mills Co. Ltd. V. V.M.Deshpande, Income Tax Officer, Companies Circle I(8), Bombay and Anr. AIR 1972 SC 878 the Court held as under :- "9. Turning now to the Income-tax Act, it is noteworthy that sectio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... roceedings as can fly be started or continued with the leave of the liquidation court u/s 446 of the Act. The liquidation court, in our opinion cannot perform the functions of Income-tax Officers while assessing the amount of tax payable by the assesses even if the assessee be the company which is being wound up by the court. The orders made by the Income-tax Officer in the course of assessment or reassessment proceedings are subject to appeal to the higher hierarchy under the Income-tax Act. There are also provisions for refrains to the High Court and for appeals from the decisions of the High Court to the Supreme Court and then there are provisions for revision by the Commissioner of Income-tax. It would lead to anomalous consequences if ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 under the Act Incidentally, it may be pointed out that at the bar no English decision was brought to out notice under which the assessment proceedings were held to be controlled by the winding-up court On the view that we have taken, the decisions in the case of Seth Spinning Mills Ltd (In Liquidation) and the Mysore span silk Mills Ltd (In Liquidation), do not seem to lay down the correct rule of law that the Income-tax Officers must obtain leave of the winding-up court for commencing or continuing assessme ..... X X X X Extracts X X X X X X X X Extracts X X X X
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