Wednesday, December 26, 2012


On 18th December, 2012 the Companies Bill, 2011 had been passed by the Lok Sabha. However, it was passed with certain modifications as recommended by the Parliamentary Standing Committee on Finance. Some of the amendments to the Companies Bill (as passed by the Lok Sabha) are as under:

1) Definition of 'key managerial personnel'(KMP) in clause 2(51) amended to include ‘Whole-time director' within its realm. Further, the pre-condition of CFO’s appointment by BOD to treat him as KMP was deleted;

2) As per amended clause 3, in case of One Person Company, nominee mentioned in Memorandum of Association would become member not only on subscriber's death but also in the case of subscriber's incapacity to contract due to insanity, etc.;

3) Words ‘of money’ omitted from Sec. 2(64) to cover bonus shares in paid-up share capital;

4) As per amended clause 2(40), the ‘statement of changes in equity’ should form an integral part of the financial statements of companies governed by Ind-AS;

5) Clause 23 amended to allow a private company to make rights and bonus issues;

6) Members are empowered to offer whole of their holdings of shares to public in offer for sale; earlier this was restricted to part shareholdings only;

7) In accordance with the Supreme Court's interpretation of section 67 of the Companies Act, 1956 in Sahara India Real Estate Corpn. Ltd. v. SEBI [2012] 115 SCL 478/25 18, clause 42 was amended to define 'private placement' in order to curb public issues in the garb of private placement;

8) Time-limit for filing annual return in clause 92(4) relaxed from 30 days to 60 days from the date of AGM or due date of AGM, if the AGM wasn’t convened;

9) Corporate Social Responsibility spending has been made mandatory;

10) As per amended clause 139 appointment of auditors for five years needs to be ratified by members at every Annual General Meeting;

11) Clause 152(6) provides that not less than two-thirds of the total number of directors of a public company shall be liable to retire by
rotation and be appointed by the company in general meeting. The independent directors are being excluded from the "total number of directors" for computing the proportion, nonetheless they are appointed under this Act or any other law;

12) As per newly inserted clause 245(2), where members or depositors seek any other suitable action from or against an audit firm, the liability shall be of the firm as well as of each partner who was involved in making any improper or misleading statement of particulars in the audit report or who acted in a fraudulent, unlawful or wrongful manner;

13) Provisions relating to voluntary rotation of auditing partner (in case of audit firm) modified to provide that members may rotate the partner at such interval as may be resolved by members instead of every year.

Tribunal applied ‘force of attraction rule’ to tax income indirectly connected to PE in India

The basic philosophy underlying the ‘force of attraction’ rule is that when an enterprise sets up a PE in another country, it brings itself within the jurisdiction of that another country to such a degree that such another country can properly tax all profits that the enterprise derives from such country- whether the transactions are routed and performed through the PE or not

In the instant case, the moot question that arose for consideration before the Tribunal was “Whether services rendered by PE in India to Indian project could only be made taxable and similar services rendered by general enterprise of such PE outside India will not be taxable as the same doesn’t amount to income indirectly attributable to PE in India”

The Tribunal held in favour of revenue as under:

1) It held that not only the profits directly attributable to the work performed by the PE but the entire profits whether “directly” or “indirectly” attributable to the PE could be made taxable;

2) The connotations of “profits indirectly attributable to permanent establishment” do indeed extend to incorporation of the ‘force of attraction’ rule embedded in Article 7(1);

3) In addition to taxability of income in respect of services rendered by the PE in India, any income in respect of the services rendered to an Indian project, which is similar to the services rendered by the PE, should also to be taxed in India in the hands of the assessee irrespective of the fact whether such services are rendered through the PE, or directly by the general enterprise;

4) This indirect attribution, in view of the specific provisions of India UK tax treaty, was enough to bring the income from such services within ambit of taxability in India. The twin conditions to be satisfied for taxability of related profits are: (i) the services should be similar or relatable to the services rendered by the PE in India; and (ii) the services should be ‘directly or indirectly attributable to the Indian PE’, i.e., rendered to a project or client in India. In effect, thus, entire profits relating to services rendered by the assessee, whether rendered in India or outside India, in respect of Indian projects are taxable in India;

5) The Tribunal has taken a considered view on interpretation of the aforesaid article that the entire profit relating to services rendered by the assessee whether rendered in India or outside India, in respect of Indian Project are taxable in India and it was not permissible to review the decision of the Tribunal in the guise of rectification under section 254(2) - Linklaters & Paines v. ITO, International Taxation [2012] 28 250 (Mumbai - Trib.)

Wednesday, December 19, 2012

Airport Authority isn’t a ‘municipality’; agriculture land in its limit but beyond municipal limit isn’t a cap. asset

As Hyderabad Airport Development Authority (“HADA”) can’t be treated as a ‘municipality’, agricultural land situated within its jurisdiction isn’t a ‘capital asset’ by virtue of exclusion u/s 2(14)(iii) and capital gains resulting from sale of such land aren’t taxable as capital gains

In the instant case, the moot question that arose before the Tribunal was whether HADA could be considered as municipality and agricultural land situated within its jurisdiction could be considered as capital asset under section 2(14)(iii)(a)/(b).

The Tribunal held as under:

1) It was  clear from section 2(14)(iii)(a)/(b) that the gain on sale of an agricultural land would be exigible to tax only when the land transferred was located within the jurisdiction of a municipality;

2) HADA was basically and essentially a creation of the Act of the State Legislature consisting of persons appointed by the State Government on salary basis. The Board Members were not elected by the people and there was no element of people’s choice being represented in any manner in the constitution of the Board. The Board functioned strictly under the supervision and control of the State Government and did not hold or possess a “local fund”. Being so, HADA couldn’t be called as a local authority;

3) HADA was only entrusted with the responsibility of preparing draft Master Plans and granting technical approval for any proposed construction or development in its jurisdiction. It didn’t have any power or ability to collect taxes nor was it responsible for provision of civic amenities which would be within the exclusive domain of the local authorities;

4) HADA, being a Development/Special Area Authority constituted under the said Act, couldn’t be either equated with a distinct municipality or considered as a complete substitute of a municipality or any other local authority;

5) HADA couldn’t be treated as a 'Municipality' and, as such, the agricultural lands situated within the jurisdiction of HADA wouldn’t constitute capital asset. Thus, gains consequential to sale of such land wouldn’t be chargeable to tax - Smt. T. Urmila v. ITO [2012] 28 222 (Hyderabad - Trib.)

Tuesday, December 18, 2012

A perpetual sole occupancy right given to a shareholder in a flat is deemed dividend

Transferable occupancy rights of a flat given to shareholders by a company on perpetual basis subject to deposit of a meagre sum, are deemed dividend under section 2(22)(a)
In the instant case, HPPL, a company had constructed a building and given occupancy rights of flats in the said building to its shareholders. The assessee ( i.e. one of the shareholder) got occupancy right of flat on deposit of certain sum towards proportionate cost of land and cost of construction. The AO held that distribution of occupancy rights should be considered as dividend under section 2(22)(a), and made addition under section 2(22)(a). However, the CIT (A) treated same as perquisite under section 2(24)(iv).

On appeal, the Tribunal held in favour of revenue as under:

1) The CIT (A) was not justified to hold that it was perquisite given by HPPL to its shareholders and not the transfer of occupancy rights to its shareholders. Hence, the provisions of section 2(24)(iv) would not apply to grant of occupancy rights by HPPL;

2) The assessee had got the occupancy rights in perpetuity as assessee could transfer his occupancy rights of the premises under consideration by way of sale to a third party subject to condition that transferee was to deposit the required amount of interest free security deposit with HPPL;

3) The consideration to be received by the assessee on transfer of his occupancy right was not to be refunded to HPPL. HPPL would have no objection for creating third party rights in the occupancy rights given to assessee; and

4) The AO had rightly held that the value of flats received was nothing but dividend given in the form of assets by HPPL. Hence, the decision of the AO, that said occupancy rights of the premises allotted by HPPL to assessee amounted to deemed dividend under section 2(22)(a), was upheld - Shantikumar D. Majithia v. Dy.CIT [2012] 28 149 (Mumbai - Trib.)

Monday, December 17, 2012

Concealing a receipt in ROI attracts penalty even if taxes due thereon are deposited

Merely by depositing taxes due on concealed income, bona fides of assessee could not be said to be established until such income was included in the ROI filed by the assessee

In the instant case, the assessee was working with a foreign company (“the employer”) and his services were terminated by the said company. But the employer offered him continued employment for a limited tenure and paid him an extraordinary compensation for retention and severance of his services. The assessee had determined and paid the taxes due on his income after including the said sum. However, he attached a note to the computation of income and claimed that the said sum received was non-compete fee, which was not chargeable to tax being a capital receipt. Thus, he filed his ROI by excluding the said receipt and claimed refund of the sum deposited. The AO imposed concealment penalty on the assessee. However, the CIT(A) deleted the penalty holding that there was no concealment of particulars of income or  furnishing of inaccurate particulars thereof on the part of the assessee since the bona fides of the assessee were proved by the disclosure in the return and the payment of taxes.

On appeal, the Tribunal held in favour of revenue as under:

1) The provisions laid down under section 17(3) are very clear that profit in lieu of salary includes the amount of any compensation due to or received by an assessee from his employer or former employer at or in connection with the termination of his employment or the modification of the terms and conditions relating thereto. Thus, there was no reason available with the assessee for nurturing a belief that the amount received was a capital receipt not chargeable to tax;

2) Merely by depositing the due tax on the amount received on termination of employment the bona fides of the assessee in not declaring the receipt as income in its return of income were not established;

3) The provisions laid down under section 17(3) were clear to bring the receipt as taxable and there was no scope of debate regarding its taxability, the  explanation of the assessee that he was under a belief that the amount received was a capital receipt and was not chargeable to tax  was not acceptable; and

4) By not declaring the said receipt in his ROI, the assessee had furnished inaccurate particulars of income attracting the penal action provided under section 271(1)(c) - ADIT v. Ravindra Bahl [2012] 28 130 (Delhi - Trib.)

Retro amendments don’t automatically alter analogous DTAA provisions and can’t be read into DTAA provisions

If a particular term has been specifically defined in the treaty, the retrospective amendment to the definition of such term under the Act would have no bearing on the interpretation of such term in the context of the Convention.

In the instant case, the Mumbai Tribunal decides on the issue of applicability of retrospective amendments to the provisions of treaty as under:

1) Para 1 of Article 23 of India-Mauritius treaty provides that “the laws in force in either of the Contracting States shall continue to govern the taxation of income in the respective Contracting States except where provisions to the contrary are made in this Convention”;

2) When we read full text of Para 1 of Article 23, it becomes manifest that if there is some provision in the Treaty contrary to the domestic law, then it is the provision of the treaty which shall prevail;

3) If the retrospective amendment is in the realm of a provision of which no contrary provision is there in the Treaty, then such amendment will have effect even under the DTAA and vice versa;

4) If a particular term has been specifically defined in the Treaty, the amendment to the definition of such term under the Act would have no bearing on the interpretation of such term in the context of the Convention;

5) A country who is party to a Treaty cannot unilaterally alter its provisions. Any amendment to Treaty can be made bilaterally by means of deliberations between the two countries who signed it;

6) The term “royalty” has been defined in the DTAA as per Article 12(3) of Indo-US DTAA.  Such definition of the term “royalty” as per this Article is exhaustive. Pursuant to the insertion of Explanation (5) by the Finance Act, 2012, no amendment has been made in the DTAA to bring the definition of royalty at par with that provided under the Act. Subject matter of the Explanation is otherwise not a part of the definition of Royalty as per Article 12; and

7) Thus, the retrospective insertion of Explanation 5 to section 9(1)(vi) couldn’t be read in the DTAA - WNS North America Inc. v. ADIT [2012] 28 173 (Mumbai - Trib.)

Thursday, December 13, 2012

CA is supposed to be diligent and careful enough in his professional work; a member suspended for being negligent

Not only ‘gross negligence’, but ‘due diligence’ is equally relevant and important criterion in measuring and determining “professional misconduct” in case of a Chartered Accountant.

In the instant case, the petitioner, a practicing CA, was aggrieved by two concurrent orders passed by disciplinary and appellate committee whereby punishment of removal of petitioner's name from the register for a period of 1 year was imposed and confirmed. The above order was passed on the basis of following reasoning:

a) The petitioner did not exercise due diligence;

b) He had shown gross negligence and carelessness in certifying tax audit report which did not reflect true and fair picture of the company’s affairs; and

c) He had signed the tax audit report without actually performing the audit as required.

The High Court dismissed the petition by holding as under:

1) The petitioner was conveniently overlooking the fact that as a professional CA while certifying audit report, it was his duty to diligently prepare the report without any mistake. It was his obligation to be diligent, careful and cautious before issuing certificate;

2) “Gross negligence” alone is not required to be taken into account while examining the act of the petitioner. But the exercise of due diligence is equally vital to decide whether acts of omission and/or commission amount to misconduct;

3) Once a particular factual aspect or entries, etc., are prepared, signed and certified by CA they are ordinarily accepted without further probing or investigation. In such circumstances, the duty and obligation of being absolutely diligent, conscious and careful are multiplied manifold and a CA shouldn’t perform his duties lightly or casually;

4) A mistake by a petty clerk or lower level accountant may be dealt with in a different manner but a mistake by a CA cannot be treated casualty;

5) The professional or trained CA is equipped with knowledge, training and experience to catch a mistake and if such trained and experienced professional allows so many mistakes,  pass-by without detecting them and if he signs and authenticates report containing such mistakes, etc., and also issues certificate, then, in such circumstances, any fault cannot be found with the conclusions drawn by the Disciplinary Committee, also confirmed by the Appellate Committee;

6) The petitioner had tried to wish-away his failure in detecting, catching and correcting the mistakes by attributing the blame to typist and computer operator. Therefore, the Court was not inclined to accept the petitioner's contention that the action taken by the institute was too harsh - CA Rajesh v. Disciplinary Committee [2012] 28 100 (Gujarat)

‘Willful defaults’ even cover those cases where ‘lender-borrower’ relationship is missing among parties and banks

In the instant case the moot question which arose before the Supreme Court was as under:

“Whether the expression ‘lender’ used in para 2.1 of RBI’s Master Circular dated 01.07.2008 on willful defaults should be restricted to a bank which had lent funds by way of loans and advances or it could be extended to cover a bank to which customer owes money under a derivative transaction”

Deliberating on the above issue the Supreme Court held as under:

1) The purpose of RBI’s Master Circular on willful defaults was  “to put in place a system to disseminate credit information pertaining to willful defaulters for cautioning banks and financial institutions so as to ensure that further bank finance is not made available to them”;

2) This Master Circular was issued pursuant to Central vigilance commission’s instructions, which covered “all cases of willful default of Rs. 25 lakhs and above” and were not confined to only willful default by a borrower of his dues to the bank in a lender-borrower relationship;

3) The mischief that was sought to be remedied was that banks should not be exploited by parties who have the capacity to pay their dues to the banks but who willfully avoid paying their dues to the banks;

4) It is crystal clear from a bare reading of para 2.6 of the Master Circular that non-funded facilities such as a guarantee is covered by the Master Circular and when a guarantee is invoked by a bank/financial institution but is not honoured, the defaulting constituent of the bank is treated as a willful defaulter even though it may not have borrowed funds from the bank in the form of advances or loans.

On basis of above, it was held that ‘willful defaults' of parties under a derivative transaction with a bank are covered by the Master Circular - Kotak Mahindra Bank Ltd. v. Hindustan National Glass & Ind. Ltd. [2012] 28 140 (SC)

Wednesday, December 12, 2012

Seismic services aren’t taxable under Sec. 44DA as Sec. 44BB specifically covers them; HC affirms AAR’s ruling

The assessee, a tax-resident of UK, was awarded contracts for procuring, processing and interpretation of data in respect of an off shore exploration block in India. It applied for lower tax deduction certificate under Section 197 at the rate of 4.223% as per section 44BB. However, the concerned authority directed the assessee to receive payments after effecting tax deduction at the rate of 10% in respect from such revenue. Aggrieved by the order, the assessee approached the AAR pleading that its services clearly fell within the ambit of Section 44BB. The AAR accepted the assessee’s claim. The revenue, thus, filed the present writ petition contending the validity of AAR’s ruling.

The High Court held in favour of assessee as under:

1) The AAR was right in applying the basic rule that ‘specific provision excludes the general provision’ in holding that the assessee’s income should be taxed as per provisions of Section 44BB;

2) Section 44BB is a specific provision for computing business income of a non-resident in connection with providing services for extraction or production of mineral oils including petroleum and natural gas;

3) On the other hand, section 44DA is broader and more general in nature and provides for assessment of the income of the non-residents by way of royalty or fees for technical services, where such non-residents carry on business in India through a PE;

4) If, as contended by the Revenue, Section 44DA covers all types of services rendered by the non-­residents that would reduce section 44BB to a useless lumber or dead letter and such a result would be opposed to the very essence of the rule of harmonious construction;

Therefore, the writ filed by the revenue contending the decision of the AAR was dismissed - DIT v. OHM Ltd. [2012] 28 120 (Delhi)

Monday, December 10, 2012

Huge profits and lack of govt. grants took away Sec. 10(23C) exemptions of an educational institute

The assessee was a registered society formed by Govt. of Madhya Pradesh for promotion and development of open school system in the State. It had claimed exemption under section 10(23C)(iiiab). During assessment proceedings, the AO opined that the assessee was systematically generating profits, thus, it couldn’t be regarding as existing for the benefit of public at large. Accordingly, the exemption was denied by AO for impugned assessment years. On appeal, the CIT(A) affirmed the stand of the AO.

On further appeal, the Tribunal held in favour of revenue as under:

1) Only the application of income as required under the Act and the predominant objects have to be kept in mind while granting or refusing exemption under section 10(23C);

2) Sec. 10(23C)(iiiab) speaks about any educational institution which is solely existing for educational purposes and not for profit and at the same time, which is wholly or substantially financed by the Government;

3) As per the data furnished, there was huge profit generated by the assessee which clearly established the profit motive of the assessee;

4) As regards the condition of wholly and substantially financed by the Govt., it was found that only in one year the Government had given some grant to assessee;

5) In respect to government grant, the word “wholly or substantially” used in the aforesaid section, means that, either it can be 100% or nearly to 100% but in any case may not be less than 75% because it has been used with the word wholly and not singularly; and

6) Moreover, the assessee’s case couldn’t be covered under Section 10(23C)(iiiad) as it was found that the surplus generated by the assessee was in crores which indicated that a huge abnormal profit had been earned by the assessee.

In view of the above, it was held that there was no infirmity in the conclusion drawn by the lower authorities to deny section 10(23C) exemption - m.p. rajya open school v. dcit [2012] 28 29

ITAT accepts lacuna in law as sec. 41(1) doesn’t tax depreciation claim if capital loan is waived off by lender

The assessee purchased a depreciable asset for which it took loan of same amount from a group company. Subsequently, parent company waived off the loan, which was shown as capital receipt by the assessee in its financial statements, without adjusting the book value of such asset. During assessment, the AO reduced the WDV of the asset to the extent of waived off loan and disallowed the claim for differential depreciation amount pertaining to the period when such loan was waived off and for the subsequent years.

On appeal, the Tribunal held in favour of assessee as under:

1) Since there was no sale or destruction of any assets comprising the block of assets, provisions of Section 43(6)(c)(i)(B) could not be invoked on ground of waiver of loan;

2) Further, concept of 'actual cost' as defined under section 43(1) could be applied only in year of purchase of assets. Therefore, the actual cost of asset recorded in the year of purchase could not be disturbed in the year of waiver;

3) In that regard there was a lacuna, in law, inasmuch as on one hand assessee got waiver of monies payable on purchase of machinery and claimed such receipt to be not taxable in view of it being a capital receipt and on other hand assessee claimed depreciation on value of machinery for which it did not incur any cost.

In view of above, it was held that under law revenue had no remedy and, therefore, disallowance of depreciation could not be sustained - Akzo Nobel Coatings India (P.) Ltd. v. DCIT [2012] 28 82 (Bangalore - Trib.)

Thursday, December 6, 2012

Suo-motu disallowance for TDS default shielded assessee from penal consequences of sec.201

In the instant case, the assessee made provision for expenses at year-end without making specific entries into accounts of the respective parties.  In the next year, the entire provision was written back and the TDS provisions were duly complied with at the time of actual payments to respective parties. While filing the return of income for the year in which provision was created, such provision was disallowed by the assessee itself. AO, however, raised tax demand for default in TDS liability and levied interest under sections 201(1) and 201(1A) respectively. Further, the CIT (A) upheld the decision of the AO.

On appeal, the Tribunal held in favour of assessee as under:

1) Once the amount had been disallowed under the provisions of section 40(a)(i) on the reason that tax had not been deducted, it was surprising that the AO held that the said amount was subject to TDS provisions again so as to demand the tax under section 201 and to levy interest under section 201(1A);

2) Once amount was disallowed under section 40(a)(i)/(ia) on the basis of the audit report of the chartered accountant, the same amount couldn’t be subject to the provisions of TDS under section 201(1) on the reason that assessee should have deducted the tax;

3) If the order of the AO was to be accepted then disallowance under Section 40(a)(i) and 40(a)(ia) couldn’t be made and provisions to that extent might become otiose. In view of actual disallowance under section 40(a)(i)/(ia) by assessee having been accepted by the AO, the said amount couldn’t be considered as amount covered by provisions of section 194C and 194J so as to raise TDS demand again under section 201 and levy interest under section 201(A);

4) Therefore, the assessee's ground on this issue was allowed as the entire amount had been disallowed under the provisions of section 40(a)(i)/(ia) in the computation of income on the reason that TDS was not deducted - Pfizer Ltd. v. ITO(TDS) [2012] 28 17 (Mumbai - Trib.)

Tuesday, December 4, 2012

Even dishonour of cheque due to ‘signature mismatch’ would be violation of sec. 138: SC

In the instant case, the following issues came up for consideration before Supreme Court:

1) Whether section 138 of the Negotiable Instrument Act covers dishonour of cheques other than due to insufficiency of funds?

2) Whether section 138 covers dishonour of cheques on the ground that “signatures do not match with specimen signatures on records of bank”?

The Supreme Court held as under:

a) The expression “amount of money …………. is insufficient” appearing in Section138 of the Act is a genus. Dishonour for reasons such “as account closed”, “payment stopped”, “referred to the drawer” are only species of that genus;

b) Just as dishonour on the ground that the account has been closed is a dishonour falling in the first contingency referred to in Section 138, so also dishonour on the ground that the “signatures do not match” or that the “image is not found”, which too implies that the specimen signatures do not match the signatures on the cheque would constitute a dishonour within the meaning of Section 138 of the Act;

c) If after issue of the cheque the drawer closes the account it must be presumed that the amount in the account was nil, hence, insufficient to meet the demand of the cheque;

d) A similar result can be brought about by the drawer changing his specimen signature given to the bank or in the case of a company changing the mandate of those authorized to sign the cheques on its behalf;

e) So long as the change is brought about with a view to prevent the cheque from being honoured the dishonour would become an offence under Section 138 subject to other conditions prescribed being satisfied.

Thus, it held that the dishonour due to signature mismatch would be covered by Sec. 138 of the Negotiable Instrument Act, and, thus, the trial Court could now proceed with the trial of the complaints filed by the appellants expeditiously - Laxmi Dyechem v. State of Gujarat [2012] 28 1 (SC)

Subject matter to initiate winding-up proceedings isn't subordinate to pending arbitration on such matter

In the instant case, the petitioner-creditor was a NBFC. It granted credit facilities to a company. The agreement was backed up by the personal guarantees executed by two directors of the company.  The loan was partly secured by the company by pledging of a fixed deposit held in the name of the company in a bank. Cheques issued for repayment in three trenches were dishonored. In view of the huge unpaid dues, the petitioner filed winding up petition contending that the company was unable to pay its debts. Simultaneously, the petitioner invoked the arbitration clause contained in the agreement and applied to the Bombay High Court under section 9 of the Arbitration Act, 1996. The company contended that Court should exercise its discretion in not admitting the petition and should direct the petition to be stayed over till the arbitral reference between the parties would be concluded.

Deliberating on the issue, the High Court held as under:

1) The scope of an arbitral reference is altogether different from the scope of a creditor's winding up petition even though the claim in both actions may be founded on the same cause;

2) The initiation of an arbitral reference in respect of a claim, which is made the subject-matter of a creditor's winding up petition as well, will not operate as a bar on the winding-up proceedings;

3) Creditor's arbitration petition on a claim, and his simultaneous winding-up petition on the same claim could never been regarded as parallel proceedings;

4) The institution of a suit or an arbitral reference, in such a situation, makes no difference since the arbitral reference has to be initiated in place of a suit if the matrix contract on which the money is claimed is governed by an arbitration agreement.

In view of the above findings, it held that initiation of an arbitral reference in respect of a claim which is made subject-matter of a creditor's winding up petition would not operate as a bar on winding up proceedings - Maheshwary Ispat Ltd., In re [2012] 28 4 (Calcutta)