1988 (6) TMI 79 - AT - Income Tax

Summary

Issues:
1. Whether section 104 of the Income-tax Act, 1961 is applicable to a company under liquidation where the Official Liquidator is managing the affairs of the company.
2. Whether the income derived during the liquidation process should be assessed on the Official Liquidator or the company itself.
3. Whether the powers of the directors and shareholders are suspended during the liquidation process.

Analysis:
1. The case involved an appeal by an assessee-company under liquidation against the order of the CIT (Appeals) affirming the action of the ITO in levying additional tax under section 104 for non-distribution of dividends. The contention of the assessee was that the Official Liquidator, appointed by the High Court, managed the company's affairs during liquidation, and therefore, the provisions of section 104 should not apply. The Departmental Representative argued that there was no specific exemption for such situations in section 104.

2. The tribunal considered the provisions of the Indian Companies Act, 1956, which govern the powers and functions of the Official Liquidator during the liquidation process. It noted that the Official Liquidator is appointed by the Court to manage the company's assets and affairs for the beneficial winding up of the company. The tribunal highlighted that the powers of directors and shareholders are suspended during liquidation, and the Official Liquidator acts under the supervision of the Court. It emphasized that the liquidation process is akin to insolvency proceedings, and the company is no longer a going concern but is in liquidation.

3. The tribunal further examined the powers of the Central Government under the Indian Companies Act regarding the conduct of the Liquidator and investigations into their functioning. It concluded that during liquidation, the company ceases to operate as a normal company, and it is the Official Liquidator who manages the business in the course of winding up proceedings. Therefore, the tribunal held that the provisions of section 104, which apply to going concerns, do not extend to companies under liquidation where the Official Liquidator is in charge. As a result, it quashed the proceedings initiated under section 104 against the assessee-company.