TaxTMI 
TaxTMI 
2022 (8) TMI 659
X X X X Extracts X X X X
X X X X Extracts X X X X
.... impugned order. 4.1 Towards the costs of publication, the appellant company was required to deposit Rs.75,000/- with the OL. 5. Aggrieved by the order of the Learned Single Judge, the instant appeal, as noticed above, has been filed. 5.1 A coordinate bench of this Court, while issuing notice in the appeal on 13.02.2019, had stayed the operation of the impugned order, albeit, till the next date of hearing. The same has continued to operate up until now. 6. Ms Shumaila Altaf, who appears on behalf of the appellant, says that the impugned order cannot be sustained. For this purpose, Ms Altaf has taken us through the record. 7. Mr Sharad Singhania, who appears on behalf of the respondent, on the other hand, has relied upon the impugned order, in opposition to the contentions advanced by Ms Altaf. 8. The record shows that the parties entered into an agreement dated 15.05.2008 [in short "2008 Agreement".] The following recital of the 2008 Agreement gives the background in which the said agreement was entered into between the parties herein: "1. The first party, August (August Infocom Pvt. Ltd., the appellant-company.) have secured an order No.WTL.PUR.08-09 dated 7th May, 2008 fr....
X X X X Extracts X X X X
X X X X Extracts X X X X
....872 0 5. To be paid by Microview Infosystems Pvt. Ltd. 1,61,872 0 Accounts Settled 12,50,000 12,50,000 1. From today onwards whatever payment against the bills submitted by August Infocom Pvt. Ltd. which is to be received from Webel Technology ltd. after deducting Rs.1,61,872/- all the payments will be distributed between both the parties 50:50 (Fifty:Fifty) as both the parties mutually agreed and signed these documents relates to settlement of account. All the 50% payments will be made through cheques in the name of Microviews Infosystems Pvt. Ltd. Axis Bank A/c No.025010200012290." [Emphasis is ours] 12. Besides this, clauses 2 to 4 of the SA, being relevant, are also extracted hereafter: "2. If any anomaly/discrepancy in receiving/distribution of payment will be clear at the time of final payment 3. However, it is also mutually agreed that all the received payments from WTL related to TDS and Security will be distributed equally and the expenses of ITR and other taxes if applicable (for tax audit and others for FY 2008-2009 of M/s August Infocom Pvt. Ltd. will also be shared 50:50 (Fifty:Fifty). 4. Similarly, if required to claim disputed or outstanding payment ....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... by the appellant-company from WTL, it had received a further sum of Rs.66,05,661/-. 16.1. This figure cannot be disputed, as the appellant-company has admitted, both before us as well as before the Learned Single Judge, a total amount received until December 2009 from WTL was Rs. l,43,05,661/-. 16.2. As indicated above, the S.A. accounted for the sums that each party was to receive, after adjustment of sums expended by the appellant-company. 16.3. Insofar as the balance money was concerned, which is Rs.66,05,661/-, the appellant seems to have adjusted, once again, a sum of Rs.1,61,872/-. 16.4. According to the appellant-company, the balance sum i.e., Rs.64,43,789/-, after adjusting Rs. 1,61,872/-, was thereafter to be divided in the ratio of 50:50 between the parties. 17. Therefore, according to Ms Altaf, the amount that fell to the share of each party is Rs.32,21,894.50. 17.1. Ms Altaf has drawn our attention to the winding up petition filed by the respondent, which, inter alia, sets out in paragraph 11 the details of payments received by the respondents. The aforesaid paragraph is extracted hereunder- 11. That after completion of the allotted job to the petitioner herein....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ing the fact that the appellant-company was remiss in not responding to the additional affidavit dated 21.02.2015, there is no statable case set up by the respondent to seek winding up of the appellant company. For the respondent to seek winding up of the appellant-company, it would have to demonstrate that the appellant-company received monies after 2009 from WTL and secondly, despite receiving money, the same was not distributed. 21. Insofar as the balance amount of Rs.9,99,894.50/- is concerned, Ms Altaf says that the appellant is prosecuting the arbitration action lodged against WTL and as per the terms of the S.A., the respondent is required to share the financial burden. 22. In sum, it is Ms Altaf's contention that the impugned order should be set aside. 23. Mr Sharad Singhania, on the other hand, says that these arguments were not advanced before the Learned Single Judge. 23.1. It is also his contention that the appellant had not responded to the additional affidavit dated 21.02.2015. Mr Singhania, as alluded to above, relied in defence of the appeal, on observations made in the impugned judgement. 24. We have heard counsel for the parties at length and perused the reco....