Regard being had to the statement of objections the answer to the question as to whether the bearings supplied by the petitioner to the respondent were, in fact, defective or not being a pure question of fact requires an adjudication after a trial. Hence the defence is not a moonshine defence. Since a triable issue has arisen petitioner cannot but be relegated to the Civil Court for appropriate reliefs.
It is also pertinent to note that he had only made verbal inquiries with regard to the prevailing market rate of the property and had not collected any instances of actual sales in the said areas. Furthermore, the inquiry that he made was as on the date of his visit, that is on 02.03.2006, whereas the sales had taken place in the financial year ending 31.03.2003.
In the present case, the assessee deposited a sum of Rs.10 lacs under section 140A of the Act. In addition thereto, the assessee had also suffered tax deduction at source to the tune of Rs. 25,533/-. Eventually, the Assessing Officer, assessed the tax liability of the assessee at total of Rs. 15,08,474/-. Thus the assessee had short-paid tax to the tune of Rs. 4,82,941/-. To our mind, however, when we look at the ratio of the decision of the Delhi High Court in the case of Dr. Prannoy Roy (supra), such distinction would not be material. What was held by the Delhi High Court was that charging of interest from an assessee for late filing of return though the tax was already paid, would render the provision penal in nature, which the statute did not provide. If we apply the same ratio in the present case, the only modification we need to adopt is that the assessee must be held to be liable to pay interest under section 234A of the Act on the difference of amount between the tax assessed and the amount which he had paid before the due date to which even the assessee has not raised any serious objection.
From the record, it appears that as on March 31, 2003, the figure of Rs. 1 crore was appearing in schedule IV, under the head unsecured loan” in the balance-sheet. In the earlier year it was appearing as 1. Unsecured loan Rs. 60 lakhs. 2. Share application money Rs. 40 lakhs. During the assessment year under consideration, the same was shown as Rs. 1 crore consolidated. The Assessing Officer has not pointed out as to what happened to Rs. 40 lakhs which were earlier appearing in the balance-sheet.
No workmen or employee of the company had appeared to resist the order of winding up. The conduct of those in management of the company in fraudulently selling off assets conservatively estimated at Rs. 2,300 crore makes it just and equitable for the company to be wound up. The company had been unable to show any prospects of it carrying on any business in the near or the distant future. The company’s inability to pay its debts is established and no ground is shown for the company court to exercise its discretion to not wind up the company despite its obvious insolvency.
Admittedly, these two writ petitions have been filed challenging the orders passed by the respondent SEBI under Sections 11 and 11(b) of the Act 15 of 1992 against the company as well as Mr. A. Venkatramani, the promoter. As against that, an appeal has to be filed before the Appellate Tribunal. Further Section 29 of the Act, 1992, enables the Government to make Rules for carrying out the purposes of the Act and the notification issued by the Central Government under Rule 5(2) is valid in law.
In the present case, the foundation is the Consultancy Agreement between the parties, where it was agreed, as per the Petitioner, that the Petitioner would get a guaranteed fee of Rs. 50 lacs, which was payable on a monthly basis at the rate of Rs. 3 lacs per month, at least for 12 months, or at the time when the investment size is achieved and/or if the agreement is revoked at Samira’s violation, whichever is earlier, the outstanding balance will be paid as a lump sum. As per the Petitioner, after 12 months from the date of agreement i.e. 22.10.2007, apart from lump sum amount of Rs. 5 lacs, the amount claimed, according to this agreement, was outstanding. This clause itself cannot be read in isolation. The revised clause and the obligation on the part of the Petitioner as referred in other part of the Agreement, just cannot be overlooked. There are no averments to show that they have complied with their part in full and, therefore, they are entitled to claim this full consultancy guaranteed amount as agreed. The Respondent/company in the affidavit has denied and made a positive statement that there were no full compliances by the Petitioner.
After the company petition before the Bombay High Court was withdrawn on 11th November, 2011, notice under section 434(1)(a) was issued on 15th December, 2011 at the registered office of the respondent company. Section 434(1)(a) requires issue of 21 days notice for deeming fiction created by the provision to apply. However, section 434(1)(a) cannot be strictly equated with mandatory statutory notice like the one required under section 80 of the Code of Civil Procedure, 1908, when a suit is to be filed against the Government. For initiating civil proceedings for recovery of a debt, no notice under section 434(1)(a) is required to be issued.
We hold that the impugned circular dated 1.1.2013 obligating the concerned authorities to initiate recovery proceedings on the expiry of period as mentioned therein so far as it relates to the situations where appeals with stay applications have been filed, but no stay had been granted and the stay applications had been kept pending for reasons not attributable in any manner whatsoever to the petitioners/assessees and resultantly, no interim relief had been granted, is non est.
Observations of the assessing officer to the effect that no one makes a loss in real estate business and that the market perceptions indicate that the prices of the immoveable properties are always on the upward trend. These observations have, inter alia, formed the basis of the additions made by the assessing officer. It was even suggested before us on behalf of the revenue that it is a “notorious practice” prevailing in real estate circles that in all property transactions there is non-disclosure of the full consideration. As pointed out earlier, this cannot per se constitute the basis of the addition, though we must hasten to add that it can very well be a starting point for further investigation. In Lalchand Bhagat Ambica Ram v. CIT [1959] 37 ITR 288, the Supreme Court disapproved the practice of making additions in the assessment on mere suspicion and surmises or by taking note of the “notorious practice” prevailing in trade circles.
