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TMI Blog2020 (10) TMI 202X X X X Extracts X X X X X X X X Extracts X X X X ..... etween the two. When the draftsman uses the expression subject to in a statute in contradistinction to the expression notwithstanding , it means that the other provision or the other statute would have an overriding effect over the provision under consideration. Also, there is a clear distinction between public company and private company in law. Companies Act, 2013 makes this distinction explicit - Since Sub Section (6) of Section 44 of the MVAT Act is subject to the Companies Act, 2013 the definitions and distinctions laid down in the Companies Act, 2013 vis-a-vis public company and private company would be applicable to Section 44(6) of the MVAT Act as if by way of incorporation. It is an admitted position, at least no dispute h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in purchase and sale of electrical items. Petitioner was non-executive director of the said company for the period from 25.07.2002 to 27.08.2014. Thereafter he resigned from the said company vide resignation letter dated 27.08.2014. 4] Petitioner is holding savings account with Respondent No.5 i.e. HDFC Bank, Goregaon (E), Mumbai, bearing account No.02121000006167. On 02.02.2020, Petitioner had issued a cheque in favour of one Mr. Santosh Devrao Thorat for an amount of ₹ 14,030/-. However Petitioner was surprised when he was informed that the said cheque was dishonoured. When Petitioner inquired with Respondent No.5 as to why the cheque was dishonoured, he was informed that Respondent No.5 had received directions from Respondent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... back on 27.08.2014. However, no remedial step was taken on the said request of the Petitioner. 7] Aggrieved, present Writ Petition has been filed seeking the relief as indicated above. 8] In the course of the hearing on 10.09.2020, Ms. Jyoti Chavan, learned AGP had submitted that she would have a word with the concerned departmental authority so that the matter could be sorted out and grievance of the Petitioner redressed. 9] However, today when the matter is called upon, she submits that stand of the department as per written para-wise comments received is that attachment of the bank account of the Petitioner is just and proper; during the relevant period Petitioner was the authorized signatory of the company. The fact that he had ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... other amount recoverable under MVAT Act from a private company, whether existing or wound up or under liquidation, for any period cannot be recovered, then the same can be recovered from every person who was a director of the private company during such period ; such person being jointly and severally liable for the payment of dues of the company. 14] From the above, it is evident that Sub Section (6) of Section 44 of MVAT Act is subject to the provisions of Companies Act, 2013. When a provision is made subject to another provision or another statute, it would mean that the other provision or the other statute would prevail over the provision in question, in case of any conflict or inconsistency between the two. When the draftsman uses ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n (71) to mean a company which is not a private company and has a minimum paid up share capital as may be prescribed. 15.1] Section 3 deals with formation of company. As per Sub Section (1) a company may be formed for any lawful purpose by seven or more persons, where the company to be formed is to be a public company; two or more persons, where the company to be formed is to be a private company; or one person, where the company to be formed is to be One Person Company that is to say a private company. Incorporation of One Person Company and conversion of One Person Company into a public company or a private company are dealt with under Rules 3 and 6 of the Companies (Incorporation) Rules, 2014 framed under the Companies Act, 2013. 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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