TMI Blog1986 (7) TMI 84X X X X Extracts X X X X X X X X Extracts X X X X ..... a creditor. It has been clearly found that the sale proceeds were employed for paying off the creditors of the company. It appears that in consequence of the impugned transfer effected by the company, the appellant has been unable to recover a sum of ₹ 28,240 assessed as income-tax in October, 1961. . It rested its suit on section 53 of the Transfer of Property Act. Having regard to the findings rendered by the High Court on the consideration of material on the record and upon an interpretation of section 53 which that provision has uniformly received, this appeal cannot be sustained. The appeal dismissed. - - - - - Dated:- 15-7-1986 - Judge(s) : R. S. PATHAK., SABYASACHI MUKHERJEE JUDGMENT The judgment of the court was del ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed to carry on its own business, but in computing the income of the company from the assessment year 1956-57 to the assessment year 1959-60, the losses suffered during the previous years from the company's own business were allowed to be carried forward and set off against its share of income from the partnership firm. Subsequently, the income-tax authorities decided to reopen the assessment proceedings under section 34 of the Indian Income-tax Act, 1922, and, it is said, this was communicated to the company. The processing of the case took time and the notices under section 34 were issued for the different assessment years on March 6, 1961, and March 7, 1961. It was alleged that meanwhile, the company, having come to know of the proposed r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l its assets. The right of pre-emption was pressed by Rajeswari Co. and, therefore, resolution was passed in February, 1961, at another extraordinary meeting of the company to sell the lands and buildings at a valuation to be fixed by expert opinion. It was asserted that the assets were sold to Rajeswari Co. and the sale proceeds were distributed to the creditors so that all the creditors were paid off. Rajeswari Co. also filed a written statement in opposition to the suit and, besides asserting that it had installed cotton bale presses in the buildings of the company pursuant to the partnership agreement between them, it denied any fraudulent intent in purchasing the assets of the company. It asserted that it acted in good faith a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the Privy Council quoted Palles C.B., who said in In re Moroney [1888] Lr 21 Ir 27, 62: " The right of the creditors, taken as a whole, is that all the property of the debtor should be applied in payment of demands of them or some of them, without any portion of it being parted with or without consideration or reserved or retained by the debtor to their prejudice. Now it follows from this that security given by a debtor to one creditor upon a portion of or upon all his property (although the effect of it, or even the interest of the debtor in making it, may be to defeat an expected execution of another creditor) is not a fraud within the statute; because notwithstanding such an act, the entire property remains available for the credito ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e. A faint attempt was made to show that some of the debts discharged were owed to persons who were also directors of the company. There is no finding by the High Court in support of that contention. It was also urged that the consideration which passed for the sale of the assets was inadequate and that the assets had been undervalued. Here again there is no finding to support the submission. The questions raised are questions of fact and this court will not permit such questions to be raised unless there is material evidence which has been ignored by the High Court or the finding reached by the court is perverse. A point was sought to be made by the learned counsel for the appellant that the transfer of the assets was effected in favour ..... X X X X Extracts X X X X X X X X Extracts X X X X
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