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TMI Blog2012 (11) TMI 568X X X X Extracts X X X X X X X X Extracts X X X X ..... rsus Info-Drive Systems Sdn. Bhd. [2010 (9) TMI 229 - SUPREME COURT OF INDIA] while dealing with the concept of bonafide dispute referring to winding up Petition under the Companies Act the amount due and payable should be clear and outstanding on the date of the demand. If any amount, though crystallized, liable to be paid subject to contingencies and/or certain conditions, that just cannot be stated to be the amount due and payable by the Company. Thus it is sufficient to dismiss the Petition as there are disputed questions of facts and the law though revolving around the documents referred and relied by the Petitioner which in no way can assist to settle and/ or crystallize the amount of service tax as claimed from the Respondent. - ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itutional validity of the imposition of a service tax under sub-clause (zzzz) of clause (105) of section 65 read with section 66 of the Finance Act of 1994 as amended. The service tax is indirect tax. It is made retrospectively applicable to the commercially rented / licensed premises. The basic liability is of the service provider, the owner, unless agreed otherwise. 4 The Petitioners and Respondent entered into a leave and licence agreement on 22nd December, 2006 for the premises for a period of five years. The relevant terms of the agreement are as under : 1. That the License Fee payable for the balance period of the lock in including notice period of 3 months (namely from 1st July 2009 to 31st January 2010) at the rate of Rs. 14 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . The service tax is not a direct tax. It is an indirect tax. The party in a given case, therefore, may agree to pay the service tax as per the terms and conditions of the agreement. Admittedly, there was no such specific agreement with regard to the payment of the service tax. Principally the Petitioner who had let out the premises was liable for such service tax and not the Respondent. 8 Considering the scope and purpose of Section 433 of the Companies Act for winding up of a Company, the basic requirement is that the amount should be due and payable and crystallized on the first date of the statutory demand raised and even on the date of filing of such a winding up proceedings. Considering the above position on record, I am not incline ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dispute, referring to winding up Petition under the Companies Act, the Apex Court has elaborated that the amount due and payable should be clear and outstanding on the date of the demand. If any amount, though crystallized, liable to be paid subject to contingencies and/or certain conditions, that just cannot be stated to be the amount due and payable by the Company. 10 We are not concerned with the rival contentions and the dispute so raised by and between the parties. Here it is sufficient to dismiss the Petition as there are disputed questions of facts and the law though revolving around the documents referred and relied by the learned counsel appearing for the Petitioner which in no way can assist to settle and/ or crystallize the amo ..... X X X X Extracts X X X X X X X X Extracts X X X X
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