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TMI Blog2022 (6) TMI 1235X X X X Extracts X X X X X X X X Extracts X X X X ..... usion period, as stated in section 458A of the Companies Act, 1956, in our considered view, the limitation period in the present case started from 31/03/2011 The present appeal was filed by the assessee on 16/05/2018, i.e. after a more than 7 years from 31/03/2011. Further, in the present case, despite the cause of action having arisen after passing of the impugned order by learned CIT(A) and Official Liquidator also having power to initiate proceedings in the name of and on the behalf of the assessee, with the leave of the Court, no action was taken for filing the appeal against the impugned order. Section 446 of the Companies Act, 1956 only stays the commencement or continuation of any suit or other legal proceeding, except with the leave of the Court, inter-alia, after passing of the winding up order. The entire purpose or the scheme behind this section is to protect the company, if the order of winding up is made or a provisional liquidator is appointed, so that the Court itself, if possible, disposes of the matters pertaining to the assets and properties of the company. However, neither in the application nor in the affidavit supporting the same there is any claim or any suppo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... acturing activity was carried out during the year. 2. On the facts and in the circumstances of the case and in law the Appellant contends that the learned CIT(A) erred in confirming the disallowance made by the Assistant Commissioner of Income Tax -7(2), Mumbai with regard toe Appellant's claim of deferred tax adjustment Rs. 8,64,623 for the reason that no details were furnished at the time of the hearing. 3a. On the facts and in the circumstances of the case and in law the Appellant contends that the learned CIT(A) erred in confirming the disallowance made by the Assistant Commissioner of Income Tax -7(2), Mumbai with regard to the Appellant's claim of Bad debts of Rs.10,86,96,928, treating the claim of Bad debts written off by the Appellant as an erroneous claim. 3b. On the way of facts and circumstances of the case, the A.O. and CIT (A) has failed to appreciate that the bad debts claimed has been written off in the books of accounts and the condition section 36 are fulfilled. 4. That the additions and disallowances made by A.O. and upheld by the CIT(A) are illegal, bad in law and without jurisdiction. 5. That the order passed by CIT (A) is without giving reason ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mitted copies of minutes recorded at the time of handing over opposition of factory premises, copies of various orders passed by the Hon'ble High Court in respect of the winding up proceedings in the case of the assessee as well as orders passed by concerned authority in respect of the labour dispute. 5. The learned DR vehemently opposed the request for condonation of huge delay of 10 years in filing the present appeal. 6. We have considered the submissions and carefully perused the application seeking condonation of delay along with supporting affidavit as well as other annexure filed by the assessee. From the perusal of record, it is evident that winding up proceedings against the assessee was initiated in the year 1998 and winding up petition being Company Petition No. 18 of 1998 was filed before the Hon'ble Bombay High Court. We find that the said Company Petition was allowed by the Hon'ble High Court vide order dated 30/03/2010 and the Hon'ble High Court also directed appointment of liquidator vide said order. Finally, vide order dated 05/02/2018, Hon'ble High Court recalled its earlier order dated 30/03/2010 and also discharged Official Liquidator appointed pursuant to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the failure to obtain leave prior to institution of suit would not debar the Court from granting such leave subsequently and that the only consequence of this would be that the proceedings would be regarded as having been instituted on the date on which the leave was obtained from the High Court. 7. It is further pertinent to note that the provisions of section 458A of the Companies Act, 1956, which reads as under: "Notwithstanding anything in the Indian Limitation Act, 1908 (9 of 1908) or in any other law for the time being in force, in computing the period of limitation prescribed for any suit or application in the name and on behalf of a company which is being wound up by the Court, the period from the date of commencement of the winding up of the company to the date on which the winding up order is made (both inclusive) and a period of one year immediately following the date of the winding up order shall be excluded." Thus, period from the date of commencement of the winding up of the company to the date on which winding up order is passed by the Court and a further period of one year from the date of winding up order, is excluded for the purpose of computation of limitat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Court, no action was taken for filing the appeal against the impugned order. Further, section 446 of the Companies Act, 1956 only stays the commencement or continuation of any suit or other legal proceeding, except with the leave of the Court, inter-alia, after passing of the winding up order. The entire purpose or the scheme behind this section is to protect the company, if the order of winding up is made or a provisional liquidator is appointed, so that the Court itself, if possible, disposes of the matters pertaining to the assets and properties of the company. However, neither in the application nor in the affidavit supporting the same there is any claim or any supporting document that the Hon'ble Court was approached for such permission on behalf of the assessee. From the facts stated in the affidavit, it is evident that the assessee initiated the process of filing appeal against the impugned order only after the Official Liquidator handed over the position of factory and other assets to the management of the assessee, pursuant to recall of winding up order dated 30/03/2010 by the Hon'ble High Court. 9. Thus, in view of above and in the facts and circumstances of the pre ..... X X X X Extracts X X X X X X X X Extracts X X X X
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