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TMI Blog2017 (9) TMI 1571X X X X Extracts X X X X X X X X Extracts X X X X ..... es cited above, hence once after inviting claim of the custom authority; asking it to file it in proper format with documents, the Official Liquidator should not have rejected it on grounds that it ought to have been given an opportunity to contest the custom duty/penalty levied upon the respondent company by Custom authorities; the duty/penalty having been levied upon the respondent company under the provisions of Section 117 of the Customs Act, 1962 by following a procedure established by law. Appeal allowed - decided in favor of Customs Authorities. - CO.A(SB) 36/2014 - - - Dated:- 27-9-2017 - MR. YOGESH KHANNA J. Appellant Through: Mr. Amit Bansal and Mr. Akhil Kulshreshtha, Advs. Respondent Through: Mr.D.Bhattacharya, A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... alleged by learned counsel for customs that they had made a claim before the Official Liquidator and the Official Liquidator vide its letter No.3773 dated 04.05.2011 had informed the office of the Commissioner of Customs as under:- Sir, With reference to your letter dated 26-04-2011 address to M/s Attar filte Ltd S-61, Greater Kailash Part-II New Delhi-48 in this connection I am to state that M/s Attar Filte Ltd was ordered to be wound up by the Hon ble High Court of Delhi vide its order dated 18/08/2008 and the Official Liquidator attached to this Hon ble Court has been appointed as its Provisional Liquidator with direction to take charge of assets, records and books of accounts of the respondent company. The official liquid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of receipt of the letter your claim shall be treated as rejected. Yours faithfully DY.OFFICIAL LIQUIDATOR DELHI HIGH COURT 5. Thereafter the office of the Commissioner of Customs wrote to the Official Liquidator its letter No.23506 dated 26.12.2013 as under : Sir, Subject: In the matter of M/s Attar Filte Ltd. (In Liqn.) in CP No. 216/07- Reg; Please refer to your office reference No. CO.LIQN/TC-III/3720 dated 17.12.2013 on the above subject. As desired detailed computation chart of interest as on date with break up (including of the duty and penalties amount) and certified copies of the Adjudication Order wherein penalties and Duty amount levied/confirmed are mentioned is enclosed herewith for info ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessment. This section empowers the Income-tax Officer concerned subject to the provisions of sections 148 to 153 to assess or asses escaped income While holding these assessment proceedings the Income-tax Officer does not, in our view, perform the functions of a court as contemplated by section 446(2) of the Act Looking at the legislative history and the scheme of the Indian Companies Act particularly the language of section 446 read as whole, it appears to us that the expression other legal proceeding‟ in sub-section (1) and the expression legal proceeding in sub-section (2) convey the same sense and the proceedings in both the subsections must be such as can appropriately be dealt with by the winding-up court. The Income-tax Act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Desai is that the winding-up court is empowered in its discretion to decline to transfer the assessment proceedings in a given case but the power on the plain language of section 446 of the Act must be held to vest in that court to be exercised only if considered expedient We are not impressed by this argument. The language of section 446 must be so construed as to eliminate such starting consequences as investing the winding-up court with the powers of an Income-tax Officer conferred on him by the Income-tax Act, because, in our view, the legislature could not have intended such a result. 10. The argument that the proceedings for assessment or reassessment of a company which is being wound up can only be started or continued with the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 0. The same here. The recovery proceedings can be stayed by the company judge. But not the penalty proceedings. It would be starting to hold that the powers of the company judge are much wider under s. 391 than when acting as a winding up court under s. 446(2). In so far as income-tax and sales tax are concerned the powers are the same. He has no jurisdiction over them. Exclusive jurisdiction vests in the authorities created by the I.T. Act and the Sales Tax Act. The jurisdiction of the company court is ousted except when recovery proceedings are started and those authorities lay their hands upon the estate of the company. 9. Since the facts of the present case, are similar to the facts of the cases cited above, hence once after inviti ..... X X X X Extracts X X X X X X X X Extracts X X X X
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