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TMI Blog1997 (10) TMI 352X X X X Extracts X X X X X X X X Extracts X X X X ..... pondent should have pressed the case it made out in the affidavit before the learned company judge that was the appropriate time to do so. Thus the order of the learned company judge sanctioning the scheme is restored. - CIVIL APPEAL NO. 7351 OF 1997 - - - Dated:- 17-10-1997 - S.P. BHARUCHA AND V.N. KHARE, JJ. JUDGMENT 1. Leave granted. 2. On 11-6-1984, a company application ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sed to enabler the evasion of taxes. 3. On 3-5-1985, the respondent filed an appeal against the order sanction-ing the scheme. An application for stay thereof was refused. There being no stay, the High Court, on 13-8-1985, passed an order dissolving, without winding up, the transferor-company, Hari Brothers (P.) Ltd. A copy of the order of dissolution was filed with the Registrar of Companies ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fidavits'. The Division Bench said that 'where the whole purpose of the petitioner was to avoid taxes that should have been taken into consideration by the learned court below and taking into consideration such fact and consid-ering that the application was not bona fide the learned court below should not have accorded the sanction as proposed by the petitioner. Under these circumstances, the im ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ision Bench came to the conclusion that the whole purpose of the appellant was to avoid taxes when there is no material discussed or even referred to in its order based whereon such a conclusion could be reached. 7. We think that the least that should have been done by the Division Bench was to remand the matter to the learned company judge for fresh consideration. It is not as if the Division ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... company judge for being heard afresh. We are disinclined to do so for the amalgamation has taken effect long back and third party rights have been created. The respondent should have pressed the case it made out in the affidavit before the learned company judge; that was the appropriate time to do so. 9. The appeal is allowed. The judgment and order under appeal is set aside. The order of the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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