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Calcutta High Court

If company did not dispute claim of creditor-bank, winding up petition against company is to be admitted

October 16, 2012 2315 Views 0 comment Print

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.

If Company Assessee mainly engaged in purchase/ sale of shares the same will be treated speculative business

October 12, 2012 1038 Views 0 comment Print

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.

Arbitral reference in respect of a claim which is made subject-matter of a creditor’s winding up petition would not operate as a bar on winding up proceedings

October 12, 2012 1335 Views 0 comment Print

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

Share qualification required to maintain petition u/s. 397 & 398

October 9, 2012 1284 Views 0 comment Print

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.

CAG cannot audit Service Tax records of Private assessee

September 26, 2012 7675 Views 0 comment Print

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.

Sanctioned scheme of amalgamation/arrangement attracts Stamp Duty-HC

September 12, 2012 8949 Views 0 comment Print

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.

Court should not interfere in decision passed by overwhelming majority of share-holders

September 10, 2012 2191 Views 0 comment Print

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.

Court cannot create tenancy without the consent of the landlord

September 4, 2012 3565 Views 0 comment Print

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.

Sponsoring of the trainee in the field not related to assessee’s business isn’t allowable

August 30, 2012 708 Views 0 comment Print

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;

Natural justice is no unruly horse, no lurking land mine, nor a judicial cure-all

August 30, 2012 2472 Views 0 comment Print

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.

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