TaxTMI 
TaxTMI 
2005 (12) TMI 290
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....e in the year 1984-85. The company has been taken into liquidation and Official Liquidator took the possession of the assets of the company (In Liquidation). The assets which include machineries, book debts, stock-in-trade, land and building etc. were sold and Rs. 1,83,52,067 were realised. The said amount was distributed amongst Punjab National Bank which claimed to be the secured creditor and workers in the ratio of 3 : 1 pursuant to the order dated 10-5-2000 passed by this court (Coram : K. M. Mehta, J.). 3. Mrs. Swati Soparkar has further submitted that the present applicant and two other applicants being unsecured creditors have subsequently filed company Application No. 267 of 2000 raising the grievance that the amount given to PNB had been in excess of its rightful claim. Though the said bank was secured creditor only in respect of the machineries, book debts and stock-in-trade and that the land and buildings of the company were not mortgaged with the bank. The bank was treated as a secured creditor in respect of the entire assets of the company. The valid share was agreed in favour of the bank only on the plant and machineries, book debts and stock-in-trade and the amoun....
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....submitted that pursuant to the claims invited by the Official Liquidator, the applicant has lodged its claim before him. Even prior to lodging of the claim, the applicant has vide its letter dated 29-12-1999 and 24-1-2000 requested the Official Liquidator to clear the dues which were pending since 1984. Since the amount was not disbursed despite the repeated request, the applicant has filed the present application before this court. She has, therefore, submitted that necessary directions may be issued to the Official Liquidator to disburse the amount to the unsecured creditors with interest and costs. 8. The Official Liquidator has filed his report on 24-11-2003. In the said report, he has submitted that pursuant to the advertisement issued by him on 2-10-2000 inviting claims from secured and unsecured creditors of the company, the applicant has filed its claim with the Official Liquidator on 1-11-2000. He has received claims from five parties which are as under :- Rohit Textiles Rs. 52,804 Sudhir Enterprises Rs. 13,686 Agrawal Textiles Rs. 1,90,300 Mahesh Textiles Rs. 41,569 Ahmedabad Municipal Corporation Rs. 57,31,306 9. He has ....
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....4 Preferential claims being Government dues, revenue, taxes etc. under section 530 i.e., AMC's dues of Property tax Rs. 57,31,306 Ordinary Unsecured Claims :- Punjab National Bank Rs. 1,62,52,067 Claims received by Official Liquidator Rs. 2,98,359 Other Unsecured Creditors as per Statement of Affairs Rs. 96,99,253 Total Rs. 2,62,49,679 11. He has further submitted that the claims of Rs. 2,98,359 received by him are appearing in the list of unsecured creditors as per statement of affairs and the amounts payable to unsecured creditors as per the statement of affairs are for Rs. 99,97,612. 12. The Official Liquidator has further submitted in his report that for the purpose of making payment to the unsecured creditors, after fully paid to the overriding preferential share of the workers and the preferential claims of the Government, it is necessary for the Official Liquidator to give the notice to prove debt to all the creditors who have not filed their claims pursuant to the advertisement but are named as creditors in the statement of affairs, as required by rule 148 of the Companies (Court) Rules, 1959. So far as the overriding prefe....
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....ining three unsecured creditors. 14. In compliance with the direction issued vide order dated 17-3-2004 and 25-3-2004, the Official Liquidator has placed on record a statement showing reconciliation of figures and communication dated 26-3-2004 received by fax from Deputy Assessor and Tax Collector, East Zone, Ahmedabad Municipal Corporation. In light of this communication and the statement of reconciliation, the court directed to join Ahmedabad Municipal Corporation as a party - respondent in the present proceedings and issued notice by order dated 26-3-2004. The court further recorded the submissions of Mr. R. D. Dave, learned advocate appearing on behalf of the workers' union and also taken on record compilation of 23 pages produced by him to point out that there was an error in the report dated 24-11-2003 of the Official Liquidator wherein the claim of the workers of the company-in-liquidation has been worked out at a net figure of Rs. 9,36,694 on the basis of gross figure of Rs. 44,25,494. The court has further recorded the submission of Mr. Dave that the correct figure ought to have been Rs. 60,90,925 after taking into consideration two different reports given by the C.A. n....
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.... though bills were raised and duly served on the premises of the property in question. He has further submitted that the purchaser of the property, though served with the notice has chosen not to appear and no action whatsoever has been taken against the purchaser by the Official Liquidator to comply with the terms and conditions of the sale of the property. The Official Liquidator or Sale Committee or whoso- ever has not issued or given any notice of transfer of property as contemplated under rule 3 and under Chapter VIII of the Bombay Provincial and Municipal Corporation Act. As per the provisions of Taxation Rules and more particularly, rule 30 of Chapter VIII of the Rules, the owner/occupier of the property is primarily liable to pay a property tax. No notice as contemplated under rule 3 has been given by the Official Liquidator despite the fact that the AMC has time and again issued and served bills in every financial year and has also lodged claim before the Official Liquidator. 17. He has further submitted that section 141 of BPMC Act creates first charge on the property on which the property tax is outstanding and, therefore, irrespective of the owner/occupier being a co....
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....forceability of the charge enacted in the second para of section 100 was concerned and such charge whatever be its ranking cannot be enforced against a transferee for value without notice. The court has observed that the scope and object of section 141 and second paragraph of section 100 are fundamentally different. The former provides for the creation and ranking of the charge while the latter provides for the enforceability of the charge against the property in the hands of a transferee. 18. Mr. Raval has alternatively submitted that if the AMC's dues are considered preferential in view of section 530, the outstanding amount as on 1992 would be approximately Rs. 13,77,858. The order of winding up was passed in February, 1993 and hence, the period of 12 months from the said date would be added to the above referred amount and if the court had to consider the AMC's claim as per the provisions contained in section 530 of the Act, the amount outstanding up to March, 1994 will have to be paid to the AMC first before any amount is paid to any other unsecured creditors. He has therefore, submitted that AMC's dues should either be satisfied fully keeping in mind the provisions contain....
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....rity to all other debts. 21. The combined reading of the provisions contained in sections 529, 529A and 530 makes it abundantly clear that by virtue of non obstante clause in section 529A, the applicability of section 141 of BPMC Act is excluded and hence, it cannot be said that AMC is entitled to disbursement and satisfaction of its dues before secured creditors. The claim of AMC will have to be examined under section 530 of the Act. Clause (a) of section 530(1) says that all revenues, taxes, cesses and rates due from the company to the Central or a State Government or to a local authority at the relevant date as defined in clause (c) of section 8 and having become due and payable within the twelve months next before that date. Sub-clause (i) of clause (c) of section 530(8) states that the expression 'the relevant date' means - in the case of a company ordered to be wound up compulsorily, the date of the appointment (or first appointment) of a provisional liquidator, or if no such appointment was made, the date of the winding up order, unless in either case the company had commenced to be wound up voluntarily before that date. Mr. Raval has submitted that the winding up order i....