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2014 Supreme(Guj) 140
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
K.M. THAKER, J.
COMMISSIONER OF INCOME TAX-II - Applicant(s)
Versus
OFFICIAL LIQUIDATOR OF M/S GUJARAT TELEPHONE CABLES LTD & Anr. - Respondent(s)
COMPANY APPLICATION NO. 245 of 2012 In COMPANY PETITION NO. 253 of 2008 In COMPANY APPLICATION NO. 525 of 2008 With OFFICIAL LIQUDATOR REPORT NO. 35 of 2012 In COMPANY PETITION NO. 253 of 2000 With COMPANY APPLICATION NO. 208 of 2013 In COMPANY APPLICATION NO. 286 of 2011 With COMPANY APPLICATION NO. 209 of 2013 In COMPANY APPLICATION NO. 399 of 2010 With COMPANY APPLICATION NO. 210 of 2013 In COMPANY APPLICATION NO. 295 of 2011
Decided On: 30/06/2014
MR M.R. BHATT, SENIOR COUSNEL WITH MRS MAUNA M BHATT, ADVOCATE for the Applicant(s) No. 1
MR SHALIN MEHTA, SENIOR COUNSEL WITH MR HEMANG M SHAH, ADVOCATE for the Respondent(s) No. 2
MR J.S. YADAV, ADVOCATE for the Respondent(s) No. 1
MR D.S. VASAVADA, ADVOCATE for the Textile Labour Association
Headnote:
Companies Act – Sections 529 A, 530 – Income Tax Act, 1961 – Sections 178, 178(2) – Company Court passed winding up order –Liquidator, pursuant to an order passed by the Hon'ble Company Court, put up for auction – sale some assets of the company in liquidation viz. certain parcels of land – Completion of process of auction sale, Hon'ble Company Court confirmed the sale vide order – After seeking permission from learned Company , Official Liquidator published advertisement and invited claims from secured creditors and workmen – In response to advertisement, some workmen and ARCIL, as assignee of State Bank of India, ICICI Bank Ltd., IDBI Bank Ltd., Bank of India, Indus Ind Bank, IFCI Ltd., Bank of Baroda, etc., submitted their claims – It also appears that after Official Liquidator received sale proceeds upon sale of certain parcels of land, Department approached liquidator and called upon liquidator to file income tax return and to pay tax dues – Held, Court is given to understand that so facilitate this process, Department has nominated one officer Nodal Officer who may be informed about appointment of liquidator and/or about process of sale of properties or about disbursement of sale proceeds. In this view of the matter, it appears appropriate to direct, inter alia, that as and when Court passes order appointing liquidator in any matter and so also when process of disbursement in accordance with section 529 A commences and at stage when process of disbursement under section 530 begins, Official Liquidator shall give proper intimation to the Nodal Officer – It is clarified that such intimation is not substitution of obligation under section 178 of Income Tax Act – It is also clarified that by law the liquidator is obliged to regularly file returns and that, therefore, liquidator shall take necessary action in all cases –Official Liquidator may, after seeking appropriate permission and directions, proceed, according to the directions by Court, to make payments in accordance with provisions contained under section 529 A of the Companies Act – Application Disposed of.
1. Heard Mr.Yadav, learned advocate appeared for the Official Liquidator, Mr.M.R. Bhatt, learned senior counsel for the applicant Income Tax Department (hereinafter referred to as 'the Department' for sake of convenience) and Mr.Vasavada, learned advocate has made submissions on behalf of the Textile Labour Association.
2. In Company Petition No.253/2000, the Official Liquidator of M/s. Gujarat Telephone Cables Ltd. has taken out the captioned report being OLR No.35/2012.
2.1 In the said Company Petition No.253 of 2000, the learned Company Court passed winding up order on 12.3.2008.
2.2 From the details mentioned by the Official Liquidator in the captioned OLR No.35/2012, it has emerged that subsequently somewhere in 2009, the liquidator, pursuant to an order passed by the Hon'ble Company Court, put up for auction – sale some assets of the company in liquidation viz. certain parcels of land.
2.3 It has also emerged that upon completion of process of auction sale, Hon'ble Company Court confirmed the sale vide order dated 30.7.2009 in OLR No.92/2008.
2.4 Subsequently, after seeking permission from the learned Company, Official Liquidator published an advertisement somewhere in September 2010 and invited claims from the secured creditors and workmen.
2.5 In response to the said advertisement, some workmen and ARCIL, as assignee of State Bank of India, ICICI Bank Ltd., IDBI Bank Ltd., Bank of India, Indus Ind Bank, IFCI Ltd., Bank of Baroda, etc., submitted their claims.
2.6 It also appears that after the Official Liquidator received the sale proceeds upon sale of certain parcels of land, the Department approached the liquidator and called upon the liquidator to file income tax return and to pay the tax dues. In this context, the liquidator has averred in OLR No.35/2012 that:
“12. That, the Official Liquidator further submits that Income Tax Department has been issuing various letters, notices, to the Official Liquidator as liquidator of Companies (In Liqn.) invoking various provisions of Income Tax Act. Calling upon the Official Liquidator to file Income Tax Returns and to pay Income Tax on realizations of sale of assets to the company, as well as initiating the proceedings, enforcing the requirement of the filing of Income Tax Returns and Recovery of Income Tax including consequential penal provisions of penalty etc.
13. In this connection, the Official Liquidator most respectfully submits that before passing any orders of disbursement, this Hon'ble Court may be pleased to hear Respondent No.2, i.e. Commissioner of Income Tax, Range-4, Ahmedabad in this matter.”
2.7 In this background, Official Liquidator has filed this report and prayed, inter alia, that:
“14(A) This Hon'ble Court may be pleased to permit the Official Liquidator to disburse an amount of Rs.6,52,99,161 or such other amount as may be decided by this Hon'ble Court to Respondent No.1 i.e. ARCIL and worker of the company (In Liqn.) subject to condition that, if any demand raised by Income Tax Department in respect of sale of property of the company as Capital Gain Tax, the same shall be paid by the Respondent No.1 i.e. ARCIL on intimation by the Official Liquidator.”
3. On the other hand, the Department has taken out Judge's Summons which is registered as Company Application No.245/2012. In the said summons dated 2.7.2012, the Department has prayed, inter alia, that:
“(A) That this Hon'ble Court may be pleased to direct the Official Liquidator to file return of income tax under Section 139 of the Income Tax Act, 1961 and as a necessary corollary, to comply with the provisions of Section 140A and other provisions with regard to payment of taxes, interest, penalty, etc.;
(B) That pending hearing and final disposal and compliance by the Official Liquidator with the above referred direction, this Hon'ble Court may be pleased to direct the Official Liquidator not to disburse any amount out of the sale proceeds either to the secured creditors and/or workers;”
4. T
