Ganesh Trading Co vs Gannon Dunkerley And Company Ltd
- CitationCompany Appeal (AT) (Insolvency) No. 2286 of 2024
Ratio decidendi
The rule this decision rests on
The Tribunal, having noted that the Adjudicating Authority is seized of the matter and that the listing has been fixed for a later date, declines to interfere: the question whether an earlier direction has been complied with, and the sequencing of an interlocutory application against a Section 9 application, are matters for the Adjudicating Authority to decide in the exercise of its own discretion, and no direction can be issued by the appellate forum in that regard. A decision of the Supreme Court is distinguished on the ground that it was rendered on its own facts under the Income Tax Appellate Tribunal Rules, 1963, and does not govern the procedural controversy before the Tribunal.
Written by Miss Lucy from the judgment below, not taken from a headnote.
Judgment
As delivered
IN THE MATTER OF: Ganesh Trading Company ...Appellant
Versus
Gannon Dunkerley & Company Ltd. ...Respondent
Present: For Appellant : Mr. Hemant Saini, Advocate with Mr. G. K. Jain, CA. For Respondent : Mr. Amir Arsiwala, Ms. Neha Arya, Advocates.
ORDER
(Hybrid Mode)
23.12.2024: This appeal has been filed against order dated 25.10.2024,
which order is to the following effect:
"ORDER
Heard both the Counsel for OC and CD. List on 14.11.2024 for further hearing."
2. Learned counsel for the Appellant submits that an earlier order was
passed on 18.03.2024 directing the Corporate Debtor to file certain
documents which has not yet been filed and an IA No.3205/MB/2024 has
already been filed by the Appellant in this regard which was also listed on
25.10.2024.
3. Learned counsel appearing for the Respondent submits that they have
already complied with the order and filed the documents.
Cont'd.../ 2
4. The question as to whether there is compliance of order dated
18.03.2024 is the question which needs to be decided by the Adjudicating
Authority itself.
5. Learned counsel for the Appellant submits that now the matter has
been listed on 16.01.2025. In view of the aforesaid, we see no reason to
entertain this appeal. We, however, observe that the Appellant having already
filed IA No.3205/MB/2024, which was also listed on 25.10.2024, the
Adjudicating Authority may pass order on Section 9 application as well as IA
No.3205/MB/2024.
6. Learned counsel for the Appellant submits that IA No.3205/MB/2024
needs to be decided first. We are of the view that it is for the Adjudicating
Authority to take decision as whether to decide the IA first or along with the
Section 9 application. We are of the view that no direction can be issued in
this regard.
7. Learned counsel for the Appellant has relied on judgment of the Hon'ble
Supreme Court in "(2003) 9 SCC 211, Jyotsana Suri Vs. Income Tax Appellate
Tribunal & Ors.". Said was a case where application filed under Rule 29 of
the ITAT Rules, 1963 was pending for adducing additional evidence in which
the Hon'ble Supreme Court observed that application was required to be
disposed of first before the Income Tax Appellate Tribunal heard the appeal
on merits. The order of the Hon'ble Supreme Court is to the following effect:
"JUDGMENT
1. Special leave granted.
Company Appeal (AT) (Insolvency) No. 2286 of 2024 3
2. The Tribunal has disposed of the appeal by its order of 3rd Jan., 1997, without considering the pending application under Rule 29 of the ITAT Rules, 1963, for adducing additional evidence. Obviously, that application was required to be disposed of first before the Tribunal heard the appeal on merits. The appellant also undertakes to withdraw the pending application before the Tribunal for making a reference under Section 256(1) of the IT Act for the above purpose. In view thereof, we direct that the Tribunal should first dispose of the application under Rule 29 on merits and thereafter proceed to dispose of the appeal on merits. The order dt. 3rd Jan., 1997, is, therefore, set aside and the matter is remitted to the Tribunal for disposal on merit in accordance with law. The order of the High Court is set aside as above and the appeal is disposed of accordingly."
8. We are of the view that said judgment of the Hon'ble Supreme Court
was on its own facts under ITAT Rules and cannot be relied for controversy in
present case.
9. With these observations, the appeal is dismissed.
[Justice Ashok Bhushan] Chairperson
[Barun Mitra] Member (Technical) Archana/nn
Company Appeal (AT) (Insolvency) No. 2286 of 2024
This page reproduces a public judgment and a summary of it. It is research material, not legal advice, and it is no substitute for advice from an advocate on your own facts.
Research this judgment with Miss Lucy
Ask what it holds, what has followed it, and what it means for your matter — in plain English, with the citations.
Try Miss Lucy free