Modi Entertainment Ltd.,, vs Assessee

These are cross appeals filed by the Revenue and the assessee against the order dated 31.10.2005 of CIT(A)-VIII, New Delhi pertaining to 2002-03 assessment year on various grounds which were argued by both the sides.

2. However at the time of dictation it was noticed that as per order sheet entry dated 20.05.2009 the hearing was adjourned to 01.07.2009 and notice to the Office of Liquidator had been issued in view of the fact that Sh. R.K.Bakshi, Assistant Official Liquidator, High Court of Delhi had brought to the notice of the ITAT that the assessee has been ordered to be provisionally wound up on 02.03.2009 by the order of the Hon'ble High Court of Delhi and Official Liquidator attached to the Hon'ble Court has been appointed as its Liquidator. In the said letter dated 2 I.T.A .No.-4902/Del/2005 & 102/Del/2006

01.07.2009 reference has been made to the Provisions of Section 446 of the Companies Act, 1956 which read as under:-

"When a winding up order has been made or the Official Liquidator has been appointed as provisional Liquidator or Liquidator (as the case may be), no suit or other legal proceeding shall be commenced, or if pending at the date of the winding up order, shall be proceeded with, against the company except by leave of the concerned Hon'ble High Court and subject to such terms as of the Hon'ble Court may impose in which liquidation proceeding of the such companies go in liquidation.

In view of the provisions of Section 446 of the Companies Act, 1956 mentioned above, you are requested to direct the appellant to move an appropriate application before the Hon'ble High Court of Delhi to take permission of the Hon'ble Court to proceed in the above said matter.

As the Company came into provisional liquidation on 2.03.09, you are also requested that the ex-management may be made party in the above said proceedings and be directed to provide the required information in the above said case."

3. In view of the above it is seen that no compliance with the direction of the Hon'ble High Court has been made either by the assessee or by the department. In view of the same the appeal of the assessee and the department are dismissed in limine with the direction that in the eventuality the compliance with the direction of the Hon'ble High Court is made the parties can pray for a recall of this order and disposal of their respective appeals on merit. Following the judicial precedent in Kuber Auto General Finance & Leasing Ltd. in order dated 25.02.2015 in IT(SS) No.24/11 the assessee may need to get the grounds moved signed by the Official Liquidator and the Revenue may need to amend the name of the respondent in their appeal. In the eventuality the parties are able to show that appropriate steps have been taken a prayer for recall of this order can be made and the Bench, if so satisfied may recall this order.

4. In the result the appeals of Revenue and the assessee are dismissed in limine.

The order is pronounced in the open court on 27th of February 2015.

Sd/- Sd/- (P.K.BANSAL) (DIVA SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER Dated: 27/02/2015 *Amit Kumar* 3 I.T.A .No.-4902/Del/2005 & 102/Del/2006

Copy forwarded to: 1. Appellant 2. Respondent 3. CIT 4. CIT(Appeals) 5. DR: ITAT ASSISTANT REGISTRAR ITAT NEW DELHI