TaxTMI 
TaxTMI 
2013 (2) TMI 195
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.... was based on the debt, recovery of which is barred under the law of limitation. 2. In the grounds of appeal, it is averred that the Limitation Act, 1961 does not apply to a winding up petition under Section 433(e) read with Sections 434 and 439 of the Act. The contention is legally untenable and has to be rejected. Section 433(e) and Section 434(1)(a)of the Act read as under: "433. Circumstances in which company may be wound up by Tribunal.-A company may be wound up by the Tribunal,- (e) if the company is unable to pay its debts; 434. Company when deemed unable to pay its debts. - (1) A company shall be deemed to be unable to pay its debts- (a) if a creditor, by assignment or otherwise, to whom the company is indebted....
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....y on the ground that the company is unable to pay its debt what is to be seen whether the debt claimed by the creditor is within time or not and if the claim of the debt by the creditor is not within time whether the Company Court should initiate the process of winding up of company who has declined to pay a debt which is not within time. 14. Since no period of limitation is provided in filing the winding up petition, therefore, the application of the petitioner seeking condensation(sic) of delay in filing he winding up petition after the winding up petition filed in the High Court of Himachal Pradesh at Shimla was returned as not maintainable, the present petition can be filed by the petitioner." 4. What is stated in the said paragra....
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....e by the respondent on or before 12th January, 2009. Tax at source was also deducted on the payments and the tax deduction at source certificate was made available on 12th January, 2009. The winding up petition in the Delhi High Court was filed on 30th November, 2012. It was returned under office objection and was re-filed on 4th December, 2012. In the winding up petition, there is no allegation that the outstanding amount of Rs.23,54,853/- was admitted by the respondent as due and payable to the appellant in their books of accounts or in the annual returns, which was filed with the Registrar of Companies. The company petition was, therefore, filed for recovery of a time barred debt. The company petition does not elaborate and state why and....
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....e Hon'ble Company Law Board and Certificate issued by the Ministry of Corporate Affairs for change in registered office. xxxxxx 4. (v) I say that the Respondents by their letter dated 7th August, 2009 (Exhibit U to the Petition) in response to the Petitioners letter dated 29th July, 2009 (Exhibit T to the Petition), had inter alia stated that the purported notice seeking to claim an amount of Rs.23,54,853/- is bad in law and not maintainable. The said letter was dispatched on the letter head of the Respondent Company and also mentioned the Corporate Office address as well as the Registered Office address of the Respondent Company. It is an admitted position that this communication was received by the Petitioners. The Petitioners there....
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....0. Even if we exclude the entire period between 15th January, 2011 and 11th November, 2011 spent before the Bombay High Court, the winding up petition would be for a claim beyond the period prescribed. As noticed above, the last payment was received by the appellant and made by the respondent on 12th January, 2009. The period of 3 years, therefore, expired on 12th January, 2012. The appellant at best is entitled to exclusion of 301 days for the period between 15th January, 2011 and 11th November, 2011. The company petition before the Delhi High Court was filed on 30th November, 2012 or after 3 years and 323 days (2012 being a leap year). The claim which is made subject matter of the winding up proceedings would still be barred by limitation....