There has to be a sanctity to the order of Court otherwise the Court orders would be meaningless. An order of the Court may be set aside by a higher Court. A Court of coordinate jurisdiction should ordinarily not recall the order of another learned Judge unless and until there was an ex facie apparent error on the face of the record. Moreover, if it was to be done, it should be done by the same Judge if he was available.
This issue in fact fell for decision before this Court in the case of CIT v. Karam Chand Thapar and Bros. Ltd. [IT Appeal No. 130 of 1998, dated 17-12-1998] wherein this Court by its judgment and order has upheld the decision of the Tribunal that the claim of loss of the assessee in the matter of sale of Part B of the PCD in the self-same rights issue is permissible as short-term capital loss.
While making assessment of any returns any deduction is sought for it is the duty of the revenue official to examine not only the account but also substantive right of claiming deduction under the Act on the facts and circumstances of this case. It is not a case that the said assets and properties do not belong to the appellant, therefore depreciation in any assets and properties is a regular phenomenon and deduction on this account is allowable under Section 32 automatically.
A creditor can maintain a winding up petition if he complies with the provisions of Sections 433, 434 and 439 of the said Act of 1956. In the present case, the respondent-Bank was admittedly a creditor of the company. The company did not dispute such relationship. The company did not dispute receipt of the notice, hence, the winding up petition was maintainable.
Learned counsel for the respondent submits that Assessing Officer on fact after having examined accounts and accompanying documents found that total funds available with the assessee on 31st March, 1999 was Rs. 1,44,82,000/- out of which an amount of Rs. 22.75 lakhs was given as loans as on 31st March, 1999 representing 15.70% of the funds available with the assessee.
The parties are not to blame for this creditor’s winding-up petition having lingered for an unnecessary length of time and there being a more protracted hearing than is ordinarily called for in a matter of this kind. It was only an observation of the court that led to a relatively innocuous matter being blown out of proportion upon the court considering it to be significant that subsequent to the present petition
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.
