9911796707
TMI Blog1977 (12) TMI 109X X X X Extracts X X X X X X X X Extracts X X X X ..... x as contemplated by that section in respect of the assessment year 1978-79 (accounting year 1977-78) and to issue requisite notices for the purpose. On behalf of the official liquidator, it is contended that no leave should be granted to the petitioner for the payment of advance tax as the income-tax of the company in liquidation is not liable to be taxed. It was further contended that notice of this application be issued to all the parties in D.B. Special Appeal No. 4 of 1976, in view of the fact that the official liquidator is estopped from making any payment to the income-tax department or to the creditors of the company in liquidation by the order of the court. On behalf of the petitioner, reliance has been placed on M. R. Agarwal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e court under section 446(1) of the Companies Act, 1956. Held, that the Income-tax Officer had jurisdiction to issue reassessment notices under section 148 of the Income-tax Act, 1961, to reopen the assessments for the assessment years 1950-51 to 1955-56 of a company ordered to be wound up by the High Court in 1959, without obtaining leave of the High Court under section 446(1) of the Companies Act, 1956. The expression 'other legal proceeding' in sub-section (1) and the expression, 'legal proceedings' in sub-section (2) of section 446 of the Companies Act, 1956, convey the same sense and the proceedings contemplated by both the sub-sections must be such as can appropriately be dealt with by the winding-lip court. The liquidation court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed by the liquidator in the course of the liquidation for the purpose of realising the assets of the company. Consequently, before the assets are distributed among the creditors, tax is payable as provided for in section 520 read with section 476 and in the case of an insolvent company the power under the above sections can be invoked by the court and the court can direct the liquidator to pay the tax demand of the Income-tax Officer, before distributing the dividend." The contention of the learned counsel for the petitioner is that the ITO functions under the statutory provisions of the I.T. Act, 1961 and, it is not necessary to obtain any leave from the court for issuing notice for payment of advance tax. It was also contended that in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... king given by the CIT. It was contended that this year the CIT has not given any such undertaking. It was further contended that the income-tax department is bound by the scheme drawn up in accordance with the order 6f this court dated December 15, 1975, inasmuch as the income-tax authorities are a party to the scheme and, now, they cannot resile from the same. It was also contended that income of the company in liquidation has, in fact, not come within the taxable limits. The profit appears to have accrued only because the 4% interest which was payable to the creditors has not been paid. In such circumstances, it was requested on behalf of the official liquidator that leave to issue notice to the official liquidator under the I.T. Act shou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... commence or continue assessment or reassess-ment proceedings in respect of a company ordered to be wound up by the court, without obtaining leave of the court under section 446(1) of the Companies Act, 1956. It has been further held that it would be open to the liquidation court then to decide how far, under the law, the amount of income-tax determined by the department should be accepted as a lawful liability on the funds of the company in liquidation. At that stage, the winding-up court can fully safeguard the interests of the company and its creditors. In Golcha Properties Pvt. Ltd. v. ITO [1974] 94 ITR 11 (Raj.), it was held that the ITO must take leave of the court before issuing notice under section 178 of the I.T. Act. Taking ..... X X X X Extracts X X X X X X X X Extracts X X X X
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