Unfortunately, this court has failed to engage the respondents’ attention on such aspect of the matter despite several reminders in course of the hearing. Instead, the respondents have veered off course to emphasise on single-line orders of adjournment to impress that the settlement had never been worked out. But the settlement or the adequacy of the consideration for the transfer of shares is not germane to the issue.
On a plain reading of Rule 5A(2) of the Service Tax Rules, the said Rule does not empower the CAG to audit the accounts of any assessee. While Sub-rule (1) of Rule 5A provides for access of any officer authorized by the Commissioner to any premises registered under the service tax Rules, for carrying out any scrutiny, verification or check, as may be necessary to safeguard the interest of revenue, Sub-rule (2) of Rule 5A only casts an obligation on the assessee to make the records and documents as specified in the said Rule available to the officer authorized by the Commissioner, or the audit party deputed by the Commissioner or the Comptroller and Auditor General of India within a reasonable time not exceeding 15 working days from the date of demand.
As per the proposed law that was pending for consideration of the President of India, scheme of amalgamation and/or arrangement would involve two per cent Stamp Duty whereas the ‘conveyance’ as of date would require payment of duty at the rate of seven per cent. It is for the State to fix the rate. So long the new law does not come in force the existing law would prevail.
In a case of scheme of arrangement pending for approval of the Court under Section 391 Court should act as umpire. It would not be a rubber stamp being a blind folded instrument of putting of seal of approval. It would certainly consider the objections raised by the objectors, to the extent, permissible under the corporate jurisprudence.
The company-in-liquidation admittedly does not own the property. The Court cannot force respondent either to sell or let it out to ‘W’. Interim arrangement was made at the stage of admission of appeal considering the balance of convenience and inconvenience. Such interim arrangement could not be made permanent. Court cannot create tenancy without the consent of the landlord. In short, tenancy is a contract between landlord and tenant.
The business of the company which is principally in the area of manufacturing and marketing of plastic pouches cannot justify the sponsoring of the trainee for overseas education in computer software development and accounting. Even for accounting purpose of the company no employee is required to be sent abroad;
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.
