TaxTMI 
TaxTMI 
2013 (8) TMI 794
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....nature. However, if the company pays this amount by eighteen equal monthly installments first of such installment shall be paid on or before 16th May 2009 and go on paying month by month on or before 16th of each succeeding month this petition will remain stayed permanently. In case of default in paying the first installment and the last installment or two intermediary installments the petition will stand admitted and in that case the petitioning - creditor shall make publication once in The Statesman an once in Sanmarg. Publication in Calcutta Gazette is dispensed with." The facts of the case briefly are as follows:- The winding up petition was presented by the respondent against the appellant company claiming balance of price of goods sold and delivered by the respondent were remained unpaid. The respondent carried on and still carries on as a dealer of materials like pig iron, C.I. Scrap and other related materials. On diverse dates in the year 1997 the appellant company placed orders upon the respondent for supply of pig iron, C.I. Scrap etc. The respondent duly effected such supply during April 1997 and October 1997. The challans showing the delivery of such goods wer....
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.... alleged that the seal of the company was also fabricated and S.K. Jha was never authorized to signed any voucher. The sales tax declaration forms disclosed were not filed with the Sales Tax authorities by the company. It is further stated that the documents disclosed by the appellant company are fabricated and forged. Such allegations had been made in the supplementary affidavit filed before the Company Court. In reply thereto, it has been shown that S.K. Jha was also at the administrative office and that there were other vouchers for collection of cheques were also singed by S.K. Jha and that Sales Tax declaration forms were submitted to the Sales Tax authorities by the respondent and due receipt given by the Sales Tax authorities. In these circumstances, the stand of the company is that it is a bona fide defence to the claim made by the respondent in the winding up petition. It is the case of the appellant that although there are serious disputed question of facts with allegations and counter-allegations between the parties with regard to the genuineness of several documents, the learned Single Judge has admitted the winding up petition without considering the documents pl....
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....of Ramdhari Singh Vs. Permanund Singh reported in 19 CWN 1183 Page 1186. In these circumstances, it is submitted that without adducing evidence it cannot be possible in this proceeding to decide the issue. He further relied upon the following decisions in support of such submissions:- 1. 2011 (1) CHN 483 (Ram Krishna Mukherjee Vs. Ankit Metal & Power Ltd.); 2. 2005 (4) CHN 343 (SRC Steel (P) Ltd. Vs. Bharat Industrial Corporation Ltd.). Per contra it has been submitted on behalf of the respondent Mr. Debangshu Basak, learned Advocate appearing on behalf of the respondent drew our attention to the order passed by the learned Trial Court and submitted that Court has specifically recorded the admitted situation which reads as follows:- "On the face of the aforesaid admitted situation the Company has raised dispute that there has been reciprocal supply of substantial quantity of pig iron to the petitioning-creditor, consequently price of the same has been adjusted against the dues of the petitioner. In order to establish this case of sale and supply of pig iron necessary invoice and challans were produced. The company stated that those cheques were issued for advance pay....
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....ce cheques but were issued against some bills, ii. There is no whisper about any supply being made by the appellant to the respondent. iii. It was not even alleged that the price of the goods were adjusted against the supply made by the appellant. iv. The appellant is apologetic and talks of settling the issue. Mr. Basak further drew our attention to the letter dated 6th July, 2000 and the receipt of the said letter is not admitted by the respondent. In the said letter appellant did not state anything about supply of goods being made by the appellant to the respondent. On the contrary, it is submitted that the documents tried to be relied upon by the company was only disclosed for the first time in the affidavit affirmed on 12th May, 2003 prior thereto the affidavit-in-opposition had been affirmed on behalf of the appellant on 27th November, 2000. There is no whisper with regard to the said documents. Some of the advance cheques were post-dated cheques which has been contended before the Court which are absurd and improbable. Mr. Basak further submitted in the affidavit-in-opposition certain vouchers were disclosed from where it will be seen as per the appellant, ....
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....Lordship has held as follows:- "I have examined the statement very minutely and it records the amount due and payable on account of sale and supply of the goods to the company and also credit of the amounts of payment of the dues made from time to time. This statement is described to be confirmation of accounts made by the company with seal and signature. There is no bona fide nor legally entertainable dispute to such confirmatory statement having been made out; only explanation has been given that this was done for income tax purpose. However, this plea has been taken in relation to annexure "D", there is explanation simply regarding annexure "C". In my view outright rejection of such plea by the Court of law would not be suffice, the same ought to be sternly disapproved as it is desperate attempt to wriggle out liability with conscious act of dozzing if not evading tax liability. If such a plea is entertained by the law Court or any tribunal, it would amount to illegal encouragement being offered to tax dozzer and/or evader. The balance sheet prepared unilaterally by the Company in relation to the transaction has no manner of relevancy in this matter. I hold at the risk of rep....
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....tween the parties for such an adjustment. We have noticed in S.P. Chengal Varaya Naidu's case (Supra) where the Court held that the act of deliberate disobedience with the design of securing something by taking unfair advantage of another. In that case, it is also a fact that the proper materials have to be placed before the Court. In our considered opinion, if there is any absence of presenting such materials before the Court where the Court cannot come to a decision that fraud has been committed by a party then the Court should not accept the said fact while deciding the matter in question. In other words without materials/particulars it is difficult to come to such a conclusion with regard to fraud. We have also noticed in Iba Health (India) Private Limited (Supra) where the Court held that if there is a bona fide dispute on substantial grounds, the Court should dismiss the winding-up petition and direct the creditor to establish his claim in a proper procedure not invoking the winding-up procedure. It appears to us that the said decision cannot have any right to play in this case since it appears to us that the Hon'ble Single Judge has found that the grounds appear to ....