9911796707
TMI Blog1960 (3) TMI 29X X X X Extracts X X X X X X X X Extracts X X X X ..... ly and in connection therewith to acquire, construct and operate sugar and other refineries, buildings, mills, factories, distilleries and other works. On January 24, 1959, the shareholders of the company appear to have passed a resolution at an extraordinary general meeting held at the Masulipatam office of the company to the effect that the registered office of the company be changed with immediate effect from Jharsuguda (Orissa) to Masulipatam (Andhra Pradesh) and to locate it in 14/98, Edepalli, Masulipatam. The present application is for confirmation by this court of the said resolution as required by section 17 of the Companies Act, 1956. Necessary notice was duly served on the Registrar of Companies, Orissa, and there was also due publication of the notice in the local newspapers as directed by this court. Notice was also issued to the State of Orissa, who alone is opposing the proposed change of the registered office from Orissa to Andhra Pradesh. The points for consideration are whether the application is maintainable; whether the State of Orissa has any locus standi to oppose the application and lastly whether this court should allow confirmation of the resolution f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ourt should therefore be based on consideration of those objects only specified in clauses ( a ) to ( g ) of section 17(1) and other considerations should not be allowed to prevail; that the location of the registered office is relevant only for the purpose of the Companies Act; and for all other purposes, in a case in which there is a factory and other unit of production, as in the present case, the local office of such factory or other unit of production is sufficient and is competent. With particular reference to Income-tax, the learned counsel, relying on section 4A of the Income-tax Act, contended that the company is a resident in a taxable territory, if the control and management is situated wholly in the taxable territory during the year in question. If, therefore, a company is so situated that its control is situate in one State and management in another, then the authorities are stated to be unanimous that the taxable territory should be the place where the real control is exercised. With regard to sales-tax, the company appears to take the stand that the sale of liquor is not subject to sales-tax and that sales-tax is determined by reference to locus, nexus, place of cons ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me-tax Act, a company is ordinarily resident in the taxable territories. As regards the place of assessment, section 64 of the Income-tax Act provides that where an assessee carries on business, etc., in more places than one, he shall be assessed by the Income-tax Officer of the area in which the principal place of the business is situate. Section 5(7A) provides that the Commissioner of Income-tax may transfer any case from one Income-tax Officer subordinate to him to another and the Central Board of Revenue may transfer any case from any Income-tax Officer to another. The company takes the stand that the question of any loss to the State of Orissa on the basis of subventions of Income-tax does not arise because the Commissioner of Income-tax, Bihar and Orissa Circle, has transferred the assessment files of the company from his own circle to Andhra Pradesh Circle where it is said the company is being assessed to Income-tax for its total annual income. Apart from a statement made to this effect in an affidavit filed on behalf of the company, there does not appear to be any other evidence or material on record. However, I do not attach any importance to the transfer, if any, in dec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch all communications and notices may be addressed. The importance of the location of the registered office is evident from sub-section (2) of section 146 in that the notice of the situation of the registered office and every change therein shall be given within 28 days after the date of incorporation of the company or after the date of the change, as the case may be, to the Registrar, who shall record the same. Then again, the proviso to sub-section (2) of section 146 makes it clear that except on the authority of a special resolution passed by the company, the registered office of the company shall not be removed as provided in clauses ( a ) and ( b ) of the said proviso. It is further stressed in sub-section (3) of section 146 that the inclusion in the annual return of the company of statement as to the address of its registered office shall not be taken to satisfy the obligation imposed by sub-section (2). It is also significant that there is a penal clause attached to all these provisions in sub-section (4) of section 146 in that if default is made in complying with the requirements of this section, the company and every officer of the company who is in default shall be punis ..... X X X X Extracts X X X X X X X X Extracts X X X X
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