TMI Blog2022 (11) TMI 1009X X X X Extracts X X X X X X X X Extracts X X X X ..... getting the property registered in his name. It has further been noticed that after getting the property registered in his name both the directors tendered resignation from the Board of the company. However, the record suggests that both the directors were continuing to run the corporate debtor even thereafter. Fraudulent trading - HELD THAT:- Levelling of section does not matter if a petition is filed before the Court having jurisdiction to deal with the same - On perusal of the section 66 of IBC, it is evident that if during liquidation process it is found that any fraud was committed then the Adjudicating Authority has jurisdiction to examine the same and pass appropriate order. In the present case on the basis of forensic audit report it was noticed that in relation to registration of property in the name of appellant fraud was committed. Loan for the purchase of the said property was taken on the joint agreement of appellants as well as corporate debtor and thereafter entire loan amount was repaid from the corpus of the corporate debtor itself and as such it can be inferred that by committing fraud the property was got registered in the name of Appellant No. 1. Accordingl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... UP is hereby attached. Warrants of attachment affixed to the property and the liquidator shall take further steps for public auction of the same. The sale of immovable property shall, however, be confirmed after due orders of the Adjudicating Authority. The Respondents (appellants herein) were directed not to alienate, lease or create any kind of encumbrance or third party interest in property in question till the order is fully complied with. 3. In the present appeal both the appellants are ex-directors of Corporate Debtor namely M/s. Helpline Hospitality Pvt. Ltd. Before further proceeding it is necessary to delineate certain relevant facts for proper adjudication in the present matter. 4. On 21.03.2017 an application under Section 9 of the Code was filed for initiation of Corporate Insolvency Resolution Process (hereinafter referred to as the 'CIRP') against M/s. Helpline Hospitality Pvt. Ltd. The said application was admitted on 24.04.2017 and thereafter on 18.07.2017 Insolvency Resolution Professional was appointed. However, finally under Section 33 of the Code, liquidation proceeding was initiated against the corporate debtor and Resolution Professional was appo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ransfer of property bearing No. G-158, Sector 41, Noida in the name of Helpline Hospitality Pvt. Ltd. (corporate debtor). 6. In the said petition the appellants appeared and filed their response. The application i.e. IA No. 840/2018 was heard on different dates and orders were also passed and finally by order dated 20.12.2019 the Adjudicating Authority directed for attachment of the property in question and directed the liquidator to take further steps for public auction. After the order dated 20.12.2019 passed by the Adjudicating Authority, on 7.1.2020, instead of assailing the said order before the Appellate Tribunal, the appellant filed a petition for review of the same order before the Adjudicating Authority. The said review petition was registered as CA No. 266/C-II/ND/2020 in (IB) No. 35/(ND)/2017. After hearing the parties the Adjudicating Authority on 14.01.2020 reserved the orders. However, to the reasons best known to the appellant, the appellant preferred an appeal before this Appellate Tribunal vide Company Appeal (AT)(Ins) No. 262/2020. The said appeal was disposed on 13.03.2020 mainly noticing the facts that the Adjudicating Authority in CA No. 266/2020, which was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as held that under Regulation 11 of the NCLT rules, while exercising an inherent jurisdiction there was no provision for review of its own order and secondly in the order dated 20.12.2019 there was no apparent error or order was contrary to record. The order dated 26.02.2021 is reproduced hereinbelow:- The present Application is preferred by Sh. T.S. Murali, Ex-Director of M/s. Helpline Hospitality for seeking the following reliefs: (A) Permit the Applicants herein to deposit/pay the sum of Rs. 65,29,836/- over a period of 6 months. (B) Modify the Orders dated 20.12.2019 in CP(IE)-35(ND)/2017 passed by the Hon'ble NCLT New Delhi Bench-II in view of the submissions made hereinabove by staying/removing the warrants of attachment dated 24.12.2019 issued by the Liquidator pertaining to the property bearing No. G-158, Sector 41, Naida, Uttar Pradesh-201301. 2. The brief background of the case is that an Application bearing No. 840 JC-II/ND/2018 filed in (IB)-35(ND)/2017 under Section 25(2)(0) read with Section 66 of the IBC, 2016 preferred by the Liquidator of the Corporate Debtor (CD) namely, M/s. Helpline Hospitality Private Limited was allowed vide order dat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed by this order. 7. The Liquidator who is represented by Mr. Sameer Rastogi is directed not to proceed further in light of this order. 4. It was also informed through the 11th Progress Report that the Hon'ble NCLAT had stayed the Liquidator from taking possession of the aforesaid property. 5. That accordingly, while taking the 11th Progress Report submitted by the Liquidator on record on 17.08.2020, this Tribunal had observed that: 'The Liquidator has mentioned that the IA 266/2020, which was heard by the earlier Bench but one of the Member Ms. Ina Malhotra has superannuated without pronouncement of the order. Hence, the IA 266/2020 needs to be relisted and re-heard. The registry is directed to list the IA 266/2020 on 11th September 2020. 6. That in view of the above, the present Application has been heard and is decided on merits vide this Order. 7. That although the present Application is filed under Rule 11 of the NCLT Rules 2016, during the course of the final hearing, the Ld. Senior Counsel appearing for the Applicant also relied upon Section 420 of the Companies Act, 2013 to seek modification of the order dated 20.12.2019. 8. That ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l has committed the following mistakes that are apparent on the face of the record and which can be rectified by using its jurisdiction conferred under Section 420 of the Companies Act, 2013: a) That the Transaction is much older and is outside the purview of Section 66 of IBC 2016. It was added that the limitation period with respect to cumulative effect of Section 67 and 69 of IBC 2016 is 2-5 years, whereas admittedly the transaction in question is of year 2005 and the insolvency proceeding were initiated on 24.04.2017. b) That the order dated 24.12.2019 will result in cancellation of the sale deed dated 09.02.2005, which is not the jurisdiction of this Tribunal and only Civil Court can do that. c) That this Tribunal had held that the property in question as Benami. Further the act which deals with the Benami Property is Benami Transactions (Prohibition) Act, 1988. He placed further emphasis on Section 4 and Section 67 of the Benami Transactions (Prohibition) Act, 1988, which are reproduced below: 4. Prohibition of the right to recover property held benami-(1) No suit, claim or action to enforce any right in respect of any property held benami against the per ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Benami Transactions (Prohibition) Act, 1988 as the Insolvency and Bankruptcy Code, 2016 is enacted later in time. Therefore, in view of the non-obstante clause under Section 238 of the Insolvency and Bankruptcy Code, 2016, provisions of the Benami Transactions (Prohibition) Act, 1988 shall have no effect. 17. It is further stated by the Liquidator/Respondent that the fact that the ex-management were the co-applicant for seeking the loan from the banker of the Corporate Debtor has no persuasive value as in the case of an application for loan to a Company, the Directors of the company are invariably made party. 1 18. After going through the Application, written submissions on record and hearing both the parties, this Bench is of the view that the issues involved in the present Application are the following: (a) Whether this Adjudicating Authority/Tribunal can review its own Order dated 20.12.2019? (b) Is there any mistake apparent from the record in the order dated 20.12.2019, which could be rectified by exercising jurisdiction conferred to this Adjudicating Authority under Rule 11 of the NCLT Rules, 2016 or to this Tribunal under Section 420 of the Companies ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he view accepted by the court in the original judgment is one of the possible views, the case cannot be said to be covered by an error apparent on the face of the record. 21. Further, in Review Application No. 2 of 2018 in Company Appeal (AT) No. 12 of 2018-DR MAS Subramanian Ors. Vs. TS Sivakumar Ors., also relied by the Applicant, it is held by the Hon'ble NCLAT that: 9. Power of Review is not an inherent power. Reference can be made to the Judgment of Hon'ble Supreme Court in the matter of Assistant Commissioner, Income Tax, Rajkot Vs. Saurashtra Kutch Stock Exchange Limited reported in (2008) 14 SCC 171. In that matter Hon'ble Supreme Court was considering a provision similarly worded as sub-section 2 of Section 420. Hon'ble Supreme Court in Para 30 of the Judgment observed as under:- 30. In our judgment, therefore, a patent, Manifest and self-evident error which does not require elaborate discussion of evidence or argument to establish it, can be said to be an error apparent on the face of the record and can be corrected while exercising certiorari jurisdiction. An error cannot be the record to see whether the judgment is correct or not. A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h Court of Calcutta in the matter of Prashant Properties Limited Vs. SPS Steels Rolling Mills Ltd. C.O. No. 2205 of 2019 With C.A.N. No. 6305 of 2019 dated 25.09.2019, wherein it was observed that: 29. Even if Section 66 of the IBC applied to past transactions, unlike Sections 44, 48 and 51, IBC (under which the NCLT, as Adjudicating Authority, can avoid past transactions), under Section 66, the NCLT cannot avoid past transactions, even if fraudulent, but under Section 66(2) can only direct the Director/partner of the Corporate Debtor, and not other parties to the transaction, to make contribution to assets of the Corporate Debtor. As such, even if Section 66, IBC could arguably apply at all to past transactions, it would not then be subject to the restriction as to look-back period. Palpably with such reason in mind, the said section might have been sought to be applied to the PUA-in-question, despite not being otherwise applicable at all to the same. That further, the coordinate Bench of NCLT Ahmedabad in LA No. 212 of 2019 in LA. No. 458 of 2018 in C.P. (I.B.) No. 19/7/NCLT/AHM/2017 dated 29.05.2020, in the case of VITOL S.A. in the matter of Mr. Abhishek Nagori Vs. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e has resulted in complete loss of the asset, which was duly procured in the name of and from the funds of the Corporate Debtor. c) As regards to calling the property in question as Benami, this Adjudicating Authority has referred to the Judgment of the Hon'ble High Court of Delhi in the matter of Reserve Bank of India Vs. JVG Finance Ltd. in Co. Appeal 1818/2011 in Co. Pet. 265/1998 only to infer that the property purchased from the funds of a company belongs to the company and therefore, should vest in the Corporate Debtor/Company. This Adjudicating Authority has never termed the property in question as Benami. Further, the Liquidator in his written submissions had rebutted the allegations of the Applicant by stating that the Section 238 of IBC 2016 will override the provisions of Benami Transactions (Prohibition) Act, 1988. That which Act will override which one is a question of law where there could be views. Therefore, the moment the issue is debatable and there is a possibility of having more than one view, this Tribunal ceases to have jurisdiction under Section 420 of the Companies Act 2013. In this context, it is worthwhile to refer to the Judgment of Hon'ble N ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2013-14. The Amount withdraw from company account for creating their personal wealth is treated as siphoning of money and cheating, fraud, misrepresentation of facts to company financial position. The Agreement No. is LEDEL00000921645 from ICICI bank and the said Loan EMI is auto debit from account No. 630xxxxxx943. Hence on the basis of facts it is evident that directors made a willful attempt for diversion of funds from company account to their personal benefits fraudulently hence the same amount is liable to be recovered along with interest @ 18%. The Total Amount diverted as an consolidated instalment in view of loan statement taken from ICICI bank dated 30.08.2018 is Rs. 65,28,836.56/- The Present estimated market Value of above said property around 4 Crores which is created from the funds of company moving fraudulently for repayment of the loan taken for purchase of this house. This House shall be transfer to Company immediately to safeguard the interest of stakeholders specially Service Tax department, Government of India. Rs. 3,91,04,886/- were overdue of Service Tax Department which can be recovered to sale this property. It is recommended that an - early action will ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sidered view, what the Applicant is asking (by seeking to amend the order) is to disturb the finality of the order dated 20.12.2019 passed by this Tribunal in the CA-840/C-II(ND)/2018, which is not permissible under Law. 26. In the light of the discussion above, we find that the 'power of review' is not an inherent power and also, there is no express provision for 'review' of an Order in the IBC 2016, which is a self-contained Code dealing with both the provisions and procedure. Hence, we cannot assume the jurisdiction to review the Order as prayed for. Further, as discussed above, the rectifications as sought by the Applicant are neither apparent from the face of record nor involve any arithmetical, clerical or procedural mistake and therefore, are beyond the purview of Section 420(2) of the Companies Act, 2013. 27. In sequel to the above, the present Application is dismissed. The Liquidator is directed to proceed accordingly and keep this Authority posted of the progress of Liquidation proceedings at fortnightly interval. 8. Since order noted above was passed on application of review of earlier order dated 20.12.2019 passed by the Adjudicating Autho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Rupees Twenty Lacs only) was also paid as pre payment of loan vide Chq No. 399980 dtd. 31st March, 2012 from Company's Bank Account Number 172502000000730 maintained with the Indian Overseas Bank, Kribhco, Sector-1, Noida. Copy of Bank Statement of Indian Overseas Bank is attached herewith.... 9. That total loan amount of Rs. 65,29,836.56/- (Rupees Sixty Five Lacs Twenty Nine Thousand Eight Hundred Thirty Six and paise Fifty Six only) was paid from Company's Bank accounts against said Loan Agreement No. LBDEL00000921645. The facts are not addressed by auditors in their audit report for the financial year 2004-05 to 2013-14. 10. The amount withdrawn from the company's bank account for creating their personal wealth is carried on with an intent to defraud creditors of the Corporate Debtor which are mainly government authorities ........ 5. Further, the Ld. Liquidator has placed on record the report of the Forensic Auditor where the following has been observed: FINDINGS IN BRIEF: Upon a detailed investigation, it has been found that the Company and its directors are liable for prosecution under various provisions of the Indian Penal Code, 1860 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Limited vide letter No. IV(16) Hqrs/ST/Adj/HHPL/21/2015/3452 has levied a Penalty of 41329014/- and service Tax Amount due Rs. 39104886/-. It is appears from the records that HHPL is irregular in paying government dues and evaded government revenue which is cheating and fabrication of records under law. Same is treated as fraud and misappropriation of funds towards their personal benefit by directors hence liable to pay personally. Government can recover the sum selling their estate too. FINDING NO. 3 NON-MAINTENANCE OF BOOKS OF ACCOUNTS AND STATUTORY RECORDS OF THE COMPANY AS WELL AS ITS GROUP AND SUBSIDIARY COMPANIES The Company have registration under different applicable laws which is not complied by the directors of company not only Helpline Hospitality but group companies too. Some Registration are shown as under: 6. That the Respondents No. 1 2 have filed their written submissions and have submitted that the Respondent No. 1 and Respondent No. 2 were the Directors of the Company till 2006 and they had resigned from the Company since 01.11.2006. 7. In this regard, the Ld. Liquidator vide para 14 of his application has submitted the following: 14. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e certificate issued by the Company Secretary Sh. Alok Chandra Singh, the Ld. Liquidator has confirmed that Forms DIR-12 towards resignation of Directors Sh. T.S. Murali (Murali Sivaramapillai Thondiyil DIN:00399183) and Ms. Reema Murali (Rema Murali DIN:00399270) were digitally signed by Sh. Vikraman Pillai Sivarama Pillai, Director (DIN06928280) on 08.08.2014. Date of filing of the said form as on the website www.mca.gov.in is 18.08.2014. 11. From the additional documents and clarifications submitted by the Ld. Liquidator, it is unequivocally clear to this Bench that Sh. T.S. Murli and Ms. Reema Murali, who claimed to have resigned w.e.f. 01.11.2006, were signing the Financial Statements and were in effect managing the affairs of the company. 12. In the written submissions, the Respondent No. 1 has admitted that they have taken the home loan from the ICICI Bank as a co-applicant for an amount of Rs. 36,59,250. It is further submitted by the Respondents that ...... out the total Rs. 65,29,836/- in question, the Respondent No. 1 has repaid Rs. 51,60,000/- as per the record which was once accepted by the Liquidator as per the audit report, the rest of the amount has been w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ally vest in the Corporate Debtor Company. 15. In the light of the facts and circumstances of the case, submissions made by the Liquidator, documents including report of the Forensic Auditor and other material on record, the prayer at serial (C) of the Application is allowed. Since the property belongs to the Corporate Debtor i.e. M/s. Helpline Hospitality Pvt. Ltd. and the Ex-Director Sh. T.S. Murali have fraudulently recorded the same in his name, the property bearing Plot No. G-158, Sector-41, Noida, Uttar Pradesh-201302 is hereby attached. Warrants of attachment be affixed to the said property by the Liquidator, who shall take further steps for public auction of the same. The Sale of the immovable property shall however, be confirmed after due Orders of this Bench. The Respondents are directed to not to alienate, lease or create any kind of encumbrance or third party interest in the property in question till the Order is fully complied. 16. Ld. Liquidator is also directed to act upon the other findings of the Forensic Report in an appropriate manner so as to maximise the liquidation value of assets of the Corporate Debtor. 17. The application is disposed off acco ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 20 passed by this Appellate Tribunal in Company Appeal (AT)(Ins) No. 262/2020. He submits that this Appellate Tribunal on earlier occasions by its order dated 13.03.2020 disposed off the appeal recording in para 5 as we are of the view that the prayer is reasonable and, therefore, we pass the order that till passing of the order (in CA No. 266/2020) by the Adjudicating Authority taking the possession of the aforesaid property by the liquidator is hereby stayed . The order passed by this Tribunal in earlier appeal has already been incorporated in this order. 12. Learned senior counsel for the appellant has further argued that on different dates i.e. 8.8.2019, 1.10.2019 and 9.10.2019 repeatedly it was held by the NCLT that the Liquidator was entitled to recover the loan amount. However, contrary to earlier orders passed by the Adjudicating Authority by the impugned order dated 20.12.2019 the Adjudicating Authority directed for attachment of the property bearing No. G-158, Sector 41, Noida which was registered in the name of the appellant No. 1. According to the learned senior counsel for the appellant the learned Adjudicating Authority has further committed serious jurisdictional ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... judgment submits that since there was apparent mistake in order dated 20.12.2019 on application for review filed by the appellant the Learned Adjudicating Authority was required to review the order and remove error which was committed in earlier order. However, the Learned Adjudicating Authority has failed to discharge its duty. The appellant has filed the written submissions which are as follows: 1. That the present matter has been filed as appeal under Section 61 of the IBC, 2016 read with Rule 11 of the NCLAT Rules, 2016 against the Impugned Order dated 26.02.2021 passed by the Hon'ble Adjudicating Authority, which confirmed the Orders dated 20.12.2019 in CA No. 840 of 2018 in CP(IB)-35(ND)/2017 passed by the Hon'ble Adjudicating Authority. That the impugned Orders dated 26.02.2021 confirming the Order dated 20.12.2019 suffers from various infirmities and irregularities and is bad in the eyes of law and hence the same has been challenged before this Hon'ble Tribunal on various grounds which are incorporated in the appeal filed herein, along with all the relevant documents. The short notes of submissions are also being filed herewith for the kind perusal of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed in the name of the Appellant No. 1 and No. 2 and not in the name of the Corporate Debtor since the property so attached by the Hon'ble Adjudicating Authority is in the registered name of the Appellant No. 1 who is also the Ex Director of the Corporate Debtor I.e. M/s. Helpline Hospitality Pvt. Ltd. C) That the Hon'ble Adjudicating Authority went beyond the scope and jurisdiction of their own orders by failing to appreciate its own orders dated 01.10.2019 and 09.10.2019 as mentioned hereinabove. D) That the Hon'ble Adjudicating Authority while deciding the CA No. 266 of 2020 for modification of order dated 20.12.2019 has gone into the merits of the matter despite adjudging in its own orders dated 26.02.2021 that the Hon'ble Adjudicating Authority has no inherent power of review and has thus overstepped its jurisdiction and passed the impugned order on the merits of the case as well. E) That the impugned order dated 26.02.2021 read with the order dated 20.12.2019 passed by the Hon'ble Adjudicating Authority is beyond the scope of the section 66 of the IBC act under which the respondent had preferred the application bearing No. 840/C-li/ND/2018 in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aring No. G-158 Sector 41 Noida-201301 is duly registered vide a registered sale deed in the name of the Appellant No. 1, the power to cancel the sale deed is with the concerned civil court and hence the question of public auction of the same does not arise since it is not in the name of the Corporate Debtor and neither it was ever in the name of the Corporate Debtor. J) That the Respondent has acted beyond the jurisdiction and without any power of various sections of the IBC, 2016 and as such the impugned Order dated 26.02.2021 is beyond the scope and jurisdiction of the Hon'ble Adjudicating Authority as well which cannot assume the powers of the Civil Court. A detailed explanation has been provided by the Appellants herein the grounds of Appeal showcasing how the respondent has acted beyond the powers and jurisdiction provided under various sections and how the terming the transaction of purchase of the property has been termed benaami is also beyond the scope of the Hon'ble Adjudicating Authority which does not have the powers of the Civil Court nor has the power to cancel the sale deed dated favouring the appellant No. 1 herein. Inasmuch as the possession of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... COMMISSIONER OF INCOME TAX by Hon'ble Supreme Court of India on 26.11.2007 MANU/SC/4565/2007 : [2007] 12 SCR 552 M.A.S. SUBRAMANIAN ORS. Vs. T.S. SIVAKUMAR - by Hon'ble NCLAT, New Delhi on 24.09.2018 - MANU/NL/0243/2018 14. The learned senior counsel for the appellant has further taken a stand that whatever mistake was committed, those mistakes were committed sometime in the year 2005 and as such under Section 66 of the companies Act, 2013 it was beyond period of limitation to be examined by the Adjudicating Authority. 15. Mr. Sameer Rastogi, learned counsel appearing on behalf of Liquidator opposing the appeal submits that the appellant maliciously and only with a view to continue with the property in question, which was admittedly purchased on the fund of Corporate Debtor, has generated the litigations by filing the review petition as well as approaching this Appellate Tribunal simultaneously. 16. He submits that there is no error in either of the order and as such the appeal is liable to be rejected. Besides orally opposing the appeal on behalf of the Respondent No. 1 Notes of Written submission has been filed which is quoted hereinbelow: 1. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mpermissible in the law, contrary to the facts that the Hon'ble Adjudicating Authority issued direction to the appellants to transfer the said immovable property in the name of the corporate debtor which has been purchased out of the fund of the corporate debtor and accordingly, which ought to have been registered in the name of the corporate debtor and due to fraud perpetrated by the appellants being the ex-directors, the same has been registered in the name of the appellant No. 1. Further, the Liquidator has power to sale the property of the corporate debtor through public auction. However, the appellant to achieve their ulterior motive and camouflage the illegality and impropriety pretreated in the management and affairs of the corporate debtor giving it a different color contrary to the facts. 6. That the Insolvency and Bankruptcy Code, 2016 being the complete code and the National Company Law Tribunal being the Hon'ble Adjudicating Authority has jurisdictions over an issue arising out of or in connection with the corporate Insolvency resolution process or the liquidation process in terms of Section 60 of the Insolvency and Bankruptcy Code, 2015 as held by Hon' ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iquidation value of the said immovable property is Rs. 1,49,21,332/- which got appreciated from the purchase price of Rs. 36,00,000/- for which Rs. 65,29,836/- was paid towards loan liability up to July 2013 from the Corporate Debtor Bank Accounts and now the appellants are alleging that they can be directed to pay the said amount ignoring the time value of money Lo., interest on the said amount till date. Moreover, the proceeding under Insolvency and Bankruptcy Code is not a recovery proceeding. 11. That order dated 01/10/2019 and 09/10/2019 was passed by the Hon'ble Adjudicating Authority on an application which was partly heard and not finally decided. The Hon'ble Adjudicating Authority had taken into consideration the only issue left for adjudication. The Respondent has never approached the Hon'ble Adjudicating Authority to recovery of the home loan amount which is Rs. 65,20,836/- 12. That the claim of Service Tax Department is Rs. 8,26,68,028/- which covers the period from Financial Year 2009 to 2014. However, to achieve ulterior motive, the appellants are making submissions that there was no liability on the Corporate Debtor till the year 2013 which are ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ears that it was noticed that fraud was committed by the appellant in getting the property registered in his name. It has further been noticed that after getting the property registered in his name both the directors tendered resignation from the Board of the company. However, the record suggests that both the directors were continuing to run the corporate debtor even thereafter. 18. So far as argument of learned senior counsel for the appellant that the application filed by the liquidator before the Adjudicating Authority was under Section 25(i)(j) which was not applicable is concerned, we are of the opinion that levelling of section does not matter if a petition is filed before the Court having jurisdiction to deal with the same. Besides referring sub-section 25(i)(j) the petition itself reflects that it was also filed under Section 66 of the Code. It would be better to reproduce Section 66 of the Code which is as follows: 66. Fraudulent trading or wrongful trading-(1) If during the corporate insolvency resolution process or a liquidation process, it is found that any business of the corporate debtor has been carried on with intent to defraud creditors of the corporate de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppellant No. 1. Accordingly considering the fraud which was noticed in the Forensic audit report the appellant is not entitled to raise question of limitation. So far as argument advanced by the learned senior counsel on behalf of appellant that the learned Adjudicating authority has interfered with the property which was covered under the Benami Transaction Act is concerned, on perusal of the impugned order it is difficult to infer that Learned Adjudicating Authority has recorded as if the property was benami. Moreover, the Liquidator in its application had made a prayer for directing the appellant to transfer the property in the name of Corporate Debtor. The Adjudicating Authority on an application filed by the Liquidator considered the fact that the property in question was property of corporate debtor and passed order for attachment of the same for its auction sale so that liability of the corporate debtor may be settled. 20. On application filed by the Liquidator the Learned Adjudicating Authority passed a detailed order. There was no error nor it was a case of beyond its jurisdiction. However, the appellant on the one hand filed a Review Petition which was numbered as Appl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... such both the questions were negated by the Adjudicating Authority assigning detailed reasons. 23. So far as two judgments on which reliance was placed by the Learned senior counsel for the appellant is concerned we are of the opinion that on the facts and circumstances of the present case those judgments are not applicable. In Honda Siel case (Supra), the Hon'ble Supreme Court was consideration the applicability of Section 254(2) of the Income Tax Act. Under the Income Tax Act, the Income Tax Authority was having jurisdiction to rectify any mistake in an order within a period of four years from the date of order. It is appropriate to reproduce Section 254(2) of the Income Tax Act which is as follows:- The Appellate Tribunal may at any time of within four years from the date of the order, with a view to rectify any mistake apparent from the record, amend any order passed by it under sub-section (1) and shall make such amendment if the mistake is brought to its notice by the assessee or assessing official... 24. However, under Rule 11 of the NCLT Rules no such power has been vested with the Adjudicating Authority. 25. Similarly in M.A. Subramaniam case the dispu ..... X X X X Extracts X X X X X X X X Extracts X X X X
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