When the petitioners are not the cause for statutory appellate authorities to hear and pass orders on interlocutory stay applications petitioners cannot be found fault with. In the circumstances, all chat can be said is that the Union of India must refrain from initiating recovery proceedings against the petitioners in respect of the amounts due in terms of the order impugned in the appeal until final orders in the appeal or order on interlocutory application for stay.
The petitioners required vacant possession of the land to be able to pass on the title and vacant possession. To be able to do so, the petitioners entered into agreements with the tenants. Such documents thus are documents which definitely belong to the petitioners. Simply because on subsequent date, the land was sold, may have a bearing on the title of such land, the same would not in any manner alter the nature of the document concerned.
It is urged by PSPC, on the strength of the decision in Rajasthan Housing Board v. Krishna Kumari [2005] 13 SCC 151, that since the electricity connection was restored to the factory premises in terms of the order dated 18th December 2008 of the Court, the dues of PSPC ought to be directed to be paid straightway by CBL and PSPC should not be relegated to the OL for its dues. The above submission is untenable for more than one reason.
it is well settled by the judgment of the Supreme court in ITO v. M.K. Mohammed Kunhi [1969] 71 ITR 815 that the Tribunal, while exercising its appellate powers under the Income Tax Act has also the power to ensure that the fruits of success are not rendered futile or nugatory and for this purpose it is empowered, to pass appropriate orders including orders of stay. In ITO v. Khalid Mehdi Khan [1977] 110 ITR 79 the Andhra Pradesh High Court, applying the rule laid down in M.K. Mohammed Kunhi (supra), stayed the assessment proceedings pending before the Assessing Officer consequent to the directions of the CIT given in orders passed under Section 263 of the Act.
Though the power of the A.O. to reopen an assessment within a period of four years is indisputably wider than when an assessment is sought to be reopened beyond four years, the power is nonetheless not unbridled. After the amendment which was brought in by the Direct Tax Laws Amendment Act, 1987 with effect from 1 April 1989, the A.O. must have reason to believe that income has escaped the assessment. At the same time, the A.O. is not conferred with the power to review an assessment and he cannot reopen an assessment only because of a mere change in the opinion.
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.
