If assessee couldn’t prove his claim, consequent order couldn’t be disputed on ground of natural justice – The issue which falls for decision is primarily whether the assessment proceeding in the instant case was conducted in a fair manner so much so conforming to principles of natural justice. It is settled law that principles of natural justice cannot be construed in isolation from the factual matrix of the case or it has many a facets.
The application for direction for sale was specially assigned to His Lordship. His Lordship should have disposed of the same either by dismissing it if His Lordship so feels it proper or allow it directing Official Liquidator to take expeditious steps for sale. Further directions for advertisement and conduct of sale would remain with the learned Company Judge.
Power of winding up of a company was conferred on the Court and notwithstanding any arbitration agreement between the parties the arbitrator would have no jurisdiction to pass the said order. We fail to appreciate, how this decision would help us to decide the present controversy.
On reading sub-sections (1), (2), (3) and (5) of Section 560, it does seem to me that a company can only be defunct, if it does not reply to the notice or says in reply that it does not carry on any business or is not in operation. If it asserts to the contrary, it cannot be struck off at all. Hence striking off is on the admission by the Company that it is defunct.
The said chapter nowhere provides that method of accounting for the purpose of ascertaining net profit should be the only income from business alone and not from other sources. Section 29 provides how the income from profits and gains of business or profession should be computed and this has to be done as provided under Section 30 to 43D. By virtue of Section 5 of the said Act that total incomes of any previous years includes all income from whatever source derived. Thus for the purpose of Section 40(b)(v) read with Explanation there cannot be separate method of accounting for ascertaining net profit and/or book-profit.
In the present case, the learned Judge rightly observed that the conduct of the company was dishonest. There had been transactions galore running into crores. More than Rupees sixty-four lacs were admittedly paid by the company. Even then, the company initially denied the relationship, subsequently took a different stand in the affidavit that would make the position of the company vulnerable.
It appears that the entire statements and averments constitute culpable laches and negligence on the part of the departmental official. There is no whisper as to what steps have been taken against the negligent officials. The Supreme Court has cautioned not to give any undue and unlimited concession to the appellant, who happens to be a Government department. In a recent pronouncement the Supreme Court has stated that time has come to reexamine the aspect of extending latitude to the Government department. The Supreme Court has observed that in the era of modern technology there is no difficulty on the part of the department to take reasonably prompt action.
A company cannot, at the post-advertisement stage, disturb or unsettle the finality of a finding as to the indisputable nature of a debt rendered at the admission stage of a creditor’s winding up petition. Even though the decision at the admission stage is final as between the company and the petitioning-creditor, others connected with the company who come in after advertisements may question the finding and the Court may not feel constrained that it is bound by the finding.
In order to claim deduction the assessee has to prove by adducing cogent evidence that it was incurred on account of business activities of the company. It appears as rightly pointed out by the respondent that despite opportunity being given, it could not produce any materials that such foreign tour was undertaken in relation to the business of the company. Mere furnishing information and making of statement are not good enough to establish the case of foreign travel.
Most of Paras 32 to 34 of the impugned CLB judgment in the instant case appear to have been physically lifted – the copy and paste disease – from a previous decision of the same member of the CLB which was taken up on appeal before the Delhi High Court which set aside the judgment and order.
