Voluntary winding up

This query is : Resolved

Querist : Anonymous

Querist : Anonymous (Querist)

28 April 2012 Dear Sir,

Please tell me Details formalities for winding up a private limited company and compliance's to be file with ROC and also tell me about the provision of income tax which effect the above transaction.

CMA MALHAR BEHERA

CMA MALHAR BEHERA (Expert)
Follow

28 April 2012 COMPANIES ACT-
Sec.425 of Companies Act 1956 deals with winding up of a company.Winding up of company may be either :
i)by tribunal
ii)voluntary winding up
iii)subject to supervision of court.

Voluntary winding up which may be:
1)Member's Voluntary winding up.
2)Creditor's Voluntary winding up.
The company & its creditors settle their affairs without going to a court ,although they may apply to court for directions or orders,as & when necessary.A liquidator is appointed by the company in general meeting & his remunaration is also fixed by the company in general meeting.

A voluntary winding up takes place when:
(a)when the period fixed for the duration of the company as mentioned in articles expired.
(b)the event,on the happening of which the articles provide that the company is to dissolved has occurred &
(c)the company passes a special resolution that the company be wound up voluntarily[sec. 484(1)].
The resolution (whether ordinary or special),when passed ,must be advertised with in 14 days of the passing of the resolution in the Official Gazette & also in some newspaper circulating in the district where the Registered office of the Company is situated.
The effect of the voluntary winding up is that the company ceases to carry on its business except so far as may be required for the beneficial winding thereof. The corporate status & the powers of the company, however continue untill it is dissolved(sec.487).

INCOME TAX ACT-
Sec.178 IT Act says
Every person-
(a)who is the liquidator of any company which being wound up whether under the order of a court or otherwise or
(b)who has been appointed the receiver of any assets of a company.
(referred to as the liquidator ) shall be within 30 days after he has become such liquidator ,give notice of his appointment as such to the assessing officer who is entitled to assess the income of the company.
->the assessing officer shall,after making such inquiries or calling for such information as he may deem fit, notify to the liquidator within three months from the date on which he receives notice of the appointment of the liquidator the amount which, in the opinion of the assessing Officer, would be sufficient to provide for any tax which is then, or is likely thereafter to become, payable by the company.
->the liquidator:
i)shall not,without the leave of the [Chief Commissioner or Commissioner], part with any of the assets of the company or the properties in his hands until he has been notified by the assessing Officer under sub-section(2) and
ii)on being so notified, shall set aside an amount, equal to the amount notified and, until he so sets aside such amount, shall not part with any of the assets of the company or the properties in his hands.
Provided that nothing contained in this sub-section shall debar the liquidator from parting with such assets or properties for the purpose of the payment of the tax payable by the company or for making any payment to secured creditors whose debts are entitled under law to priority of payment over debts due to Government on the date of liquidation or for meeting such costs and expenses of the winding up of the company as are in the opinion of the[Chief Commissioner or Commissioner] reasonable.
->If the liquidator fails to give the notice in accordance with sub-section (1) or fails to set aside the amount as required by sub-section (3) or parts with any of the assets of the company or the properties in his hands in contravention of the provisions of that sub-section, he shall be personally liable for the payment of the tax which the company would be liable to pay :
Provided that if the amount of any tax payable by the company is notified under sub-section (2), the personal liability of the liquidator under this sub-section shall be to the extent of such amount.
->Where there are more liquidators than one, the obligations and liabilities attached to the liquidator under this section shall attach to all the liquidators jointly and severally.
->The provisions of this section shall have effect notwithstanding anything to the contrary contained in any other law for the time being in force.