State of Punjab & Anr. v. M/s Ganga Bishan Shubh Karan and Company

Shri S.S. Sahu, Assistant Advocate General, Punjab for the petitioners. None for the respondent. HEMANT GUPTA, J. State of Punjab has sought winding up of respondent company for its inability to pay sales tax dues under section 433 (e) and (f) read with section 434 of the Companies Act, 1956 ( for short “the Act”). The respondent company is stated to be incorporated with its registered office at Moga. It is a dealer registered under the provisions of the Punjab General Sales Tax Act, 1948 and also under the Central Sales Tax Act, 1956. The respondent company was assessed by the Assessing Officer vide its order dated 13.07.1998 leading to the creation of a demand of Rs.1,86,949/- under the Punjab General Sales Tax Act, 1948 and C.P. No. 141 of 2008 [2] Rs.29,30,578/- under the Central Sales Tax Act, 1956. The said amount included the amount of penalty and levy of interest under the aforesaid statutes pertaining to the assessment year 1992-93.

The respondent company filed an appeal before the Deputy Excise and Taxation Commissioner (Appeals). The company did not comply with the requirement of pre-deposit of tax. For non deposit of the said amount, the appeal was dismissed on 10.12.1998. In further appeal, learned Sales Tax Tribunal, Punjab granted an opportunity to the company to deposit the entire amount for hearing of its appeal on merit. The said order of the learned Tribunal dated 21.07.1999 was challenged in a writ petition before this Court. The writ petition was dismissed but liberty was granted to the company to again move an application before the Tribunal. Another application was filed before the Tribunal but the said application was again dismissed on 4.5.2000 vide order Annexure P-6. With the dismissal order, the order of assessment passed by the learned Assessing Authority on 13.07.1998 attained finality. The demand created by the aforesaid order was sought to be recovered from the company and its Directors.

The recovery proceedings against the Directors were challenged by the Directors of the respondent company before this Court in CWP No. 12835 of 2003. The writ petition filed by the Directors was allowed with the following observations:-

In view of the above, we allow this petition holding that the disputed demand on account of arrears of sales tax due from the company i.e. M/s Ganga Bishan Subhkaram and Company Private Limited, Moga cannot be recovered from the petitioner personally. Accordingly, the impugned notice dated 18.07.2003 Annexure P-5 is quashed. We are further of the view that the respondents do not C.P. No. 141 of 2008 [3] require any direction from this Court for protection of their rights under Section 18 of the Central Tax Act, 1956. The right to proceed under that provision arises only when a company is wound up. Thus in case the company is wound up at any subsequent stage and the respondents have a right to proceed against the petitioner under section 18 of the Central Sales Tax Act, 1956, this order shall not come in their way

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It is thereafter, the present petition for winding up has been filed after serving statutory notice. None has put in appearance on behalf of the respondent company. The petition was ordered to be admitted on 21.05.2009. Advertisements were ordered to be published in “The Tribune” (Chandigarh Edition), Dainik Bhaskar and official gazette of Punjab Government. Such publications have been carried out. However, none has put in appearance on behalf of the respondent company nor any objection has been received to the order of winding up. In view of the above, it transpires that there is demand of Rs.31,17,527/- (Rs.1,86,949/- + Rs.29,30,578/-) which remains unsatisfied. The said amount is admitted liability against the respondent company and the respondent has failed to discharge the aforesaid liability. In view of the said fact, the respondent company is ordered to be wound up. Advertisement be published in the manner provided in Form 53, Rule 113 of the Company Court Rules, 1959, in “The Tribune” (Chandigarh Edition), Dainik Bhaskar and official gazette of Punjab Government. The Official Liquidator is appointed as Provisional Liquidator. He shall take over the charge of all the assets, records, effects and C.P. No. 141 of 2008 [4] actionable claim of the respondent company forthwith in accordance with law. July 23, 2010 ( HEMANT GUPTA ) JUDGE