1989 (11) TMI 227 - HC - Companies Law

Issues Involved:
1. Priority of income-tax claims in a company's liquidation.
2. Appropriation of sale proceeds by secured creditors.
3. Declaration of dividends to creditors.
4. Setting aside amounts for capital gains tax.
5. Claims of former employees for payment of dues.
6. Interpretation of mortgage rights and their impact on liquidation proceedings.
7. Applicability of section 476 and 529A of the Companies Act.
8. Applicability of section 178 of the Income-tax Act.

Detailed Analysis:

1. Priority of Income-Tax Claims in a Company's Liquidation:
The central question was whether the income-tax claim against a company in liquidation could be satisfied from the proceeds of the sale of the company's assets either as "costs, charges and expenses incurred in the winding up" under section 476 of the Companies Act or as an amount set aside under section 178 of the Income-tax Act in priority to claims under section 529A of the Companies Act. The court held that income-tax claims do not have priority over the claims of secured creditors and workmen under section 529A. It was emphasized that section 529A creates a new priority for workmen and secured creditors, and income-tax cannot be treated as winding-up costs to be paid from the mortgage right, which belongs to the secured creditor.

2. Appropriation of Sale Proceeds by Secured Creditors:
Canara Bank filed an application to appropriate Rs. 75,00,000 from the sale proceeds of Giovanola Binny Ltd.'s assets towards the amounts due to the bank. The court permitted this appropriation but clarified that if the balance amount was insufficient to meet the claims of the Income-tax Department and other claims, the order could be reopened.

3. Declaration of Dividends to Creditors:
The liquidator sought permission to declare a first dividend of 27 paise in the rupee to the creditors of Giovanola Binny Ltd. under sections 529 and 529A of the Companies Act. The court sanctioned this declaration but directed Canara Bank to set apart Rs. 27,00,000 for capital gains tax provisionally, subject to further orders regarding the company's liability for capital gains tax.

4. Setting Aside Amounts for Capital Gains Tax:
The court directed Canara Bank to set apart Rs. 27,00,000 for capital gains tax based on the representation of the Income-tax Department's counsel. This reservation was subject to further orders regarding the liability of the company for capital gains tax.

5. Claims of Former Employees for Payment of Dues:
Former employees of Brunton and Company (Engineers) Ltd. (in liquidation) filed applications for payment of their claims under section 529A of the Companies Act. The court noted that the liquidator had set apart Rs. 25.59 lakhs for capital gains tax and held that this amount could not be utilized to pay creditors until issues relating to capital gains tax were settled.

6. Interpretation of Mortgage Rights and Their Impact on Liquidation Proceedings:
The court examined whether the mortgage right of the bank would be subject to the claim of the State for income-tax dues as costs of winding up. It was held that the mortgage right of the bank, being a secured creditor, takes precedence over other claims, including income-tax dues. The court relied on the analysis of Rashbehary Ghose and various judgments to conclude that secured creditors' rights cannot be overridden without their consent.

7. Applicability of Section 476 and 529A of the Companies Act:
Section 476 allows the court to order payment of costs, charges, and expenses incurred in winding up, but this does not include the mortgage right, which is an asset of the bank. Section 529A gives priority to workmen's dues and secured creditors' claims over other debts. The court emphasized that income-tax cannot be paid from the mortgage right, which does not belong to the company in liquidation.

8. Applicability of Section 178 of the Income-Tax Act:
The court noted that the assessing officer did not serve any notice under section 178(2) of the Income-tax Act to the liquidator. Section 178 is procedural and does not confer priority for income-tax dues. The Full Bench decision in Imperial Chit Funds Ltd. held that amounts set aside under section 178 are outside the winding-up proceedings. The court concluded that section 529A, being a subsequent provision, confers rights on secured creditors and workmen, overriding other laws.

Conclusion:
The applications were disposed of with directions to the Official Liquidator to declare further dividends to workmen and Canara Bank under section 529A of the Companies Act, after reimbursing the bank for amounts advanced and expenses incurred. The court held that income-tax claims do not have priority over secured creditors and workmen's dues.

← Previous Next →