On a plain reading of the provisions of section 269SS and 269T of the Act, it is amply clear that the said provisions would be attracted when loans or deposits in excess or twenty thousand rupees are made or repaid. Thus, a basic precondition for falling within the ambit of the said provisions is the existence of a loan or deposit.
In the present case, however, we find that the second deposit of the same amount on clearance of the same goods did not amount to deposit of excise duty and was a pure mistaken deposit of an amount with the Government which the revenue cannot retain or withhold. Such claim, therefore, would not fall within section 11B of the Act.
In the present case, both, the Commissioner (Appeals) as well as the Tribunal have found that the transactions in question are neither in the nature of loans or deposits. Under the circumstances, the provisions of sections 269SS and 269T of the Act would not be applicable. Consequently, the question of contravention of such provisions attracting penalty under sections 271D and 271E of the Act would also not arise. Under the circumstances, no infirmity can be found in the impugned order of the Tribunal so as to give rise to a question of law, much less, a substantial question of law so as to warrant interference.
Mere possession of money, bullion, jewelery or such valuable article or thing per-se would not be sufficient to enable the competent officer to form a belief that the same had not been or would not be disclosed for the purpose of the Act. What is required is some concrete material to enable a reasonable person to form such a belief.
As regards the contention that in any event the service rendered by a commission agent is a service received in relation to the assessee’s activity relating to business, it may be noted that the includes part of the definition of ‘input service’ includes ‘activities relating to the business, such as accounting, auditing, financing, recruitment and quality control, coaching and training, computer networking, credit rating, share registry, and security’.
It cannot be understood by the Court how such glaring lapses can be casually explained away as ‘inadvertence’ and ‘oversight’. It is the bounden duty of the Official Liquidator to ensure and carry out a proper, detailed investigation regarding the properties in question, especially pertaining to the location of the immovable properties, survey numbers and the accurate measurements.
The proclamation of sale and holding a public auction are only the initial steps towards sale of immovable property of a tax defaulter to recover such amount through sale of his properties. The highest bidder, whose offer is accepted, during such public auction, has the responsibility to deposit 25 per cent of the purchase money on spot, failing which, the acceptance of offer stands revoked.
The expression ‘sufficient cause’ may be required to be construed liberally, provided adequate and proper reasons exist. Liberal approach is advocated in condoning the delay and not being liberal to sufficiency of the cause where it does not exist.
It is therefore necessary that there must be debt due and the company must be unable to pay it. If the debt is a disputed debt and the defence is substantial one order of winding up should not be passed. It is also note worthy that after the petitions were admitted no other persons have raised any claim and, therefore, this Court finds that the debt being disputed and there exists a bona fide dispute.
In our view, therefore, once the conditions of further proviso of section 194C(3) are satisfied, the liability of the payee to deduct tax at source would cease. The requirement of such payee to furnish details to the income tax authority in the prescribed form within prescribed time would arise later and any infraction in such a requirement would not make the requirement of deduction at source applicable under sub-section (2) of section 1 94C of the Act.
