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2021 (9) TMI 157 - HC - VAT and Sales TaxCreation of demand and recovery of amount - Resolution plan was accepted - HELD THAT:- Various questions are being framed for determination with the consent of the learned counsels for the parties:- (i) Whether the element of entry tax falls in the definition of the term "Tax" as contained in Annexure-1 of the Resolution Plan. If not, then its effect? (ii) Whether the definition of Court/Tribunal as a governmental authority would include Supreme Court and High Court? (iii) Whether the adjudicating authority or resolution professional is bound by the decision rendered under Article 226 of the Constitution of India and in proceeding under Article 136 and Article 141 of the Constitution of India? (iv) Whether the interim order granted by the Hon'ble Supreme Court, which is in the nature of an undertaking will be taken to be covered in the Resolution Plan in view of the operation of Article 144 of the Constitution of India? (v) Whether the petitioner obtained the order from the adjudicating authority in contravention of Section 30 and Section 31 of the IBC Code, 2016 read with CIRP Regulations without disclosing in the Resolution Plan, the liability towards Entry tax when it was simultaneously contesting the proceedings before the Hon'ble High Court in its writ jurisdiction and also did not move any application before the Hon'ble High Court intimating the Hon'ble High Court about appointment of the interim Resolution Professional? (vi) Whether on account of active concealment of facts the petitioner has disentitled itself in equity for any relief from this Hon'ble Court and to maintain judicial discipline, conflicting orders by coordinate benches cannot be passed? (vii) Whether the amount of tax collected by the petitioner from their customers or end consumers is a tax which goes in the corpus of the petitioner or it is a delegated duty being discharged by the petitioner fulfilling the obligations of the State in the capacity of Trustee? (viii) Whether being in the position of Trustee and admittedly not in a position to restitute, the principles of unjust enrichment will come into play or not? (ix) Whether the power to tax being sovereign, any incidental law can take away the sovereign power of the State? (x) Whether statutory frame work under which tax was collected by the petitioner having pith and substance in List-Il of the VIIth Schedule to the Constitution of India, a law relating to insolvency, which is essentially a law under List-III of the VIIth Schedule to the Constitution of India can encroach the field occupied by a subject in List-II? (xi) Whether first charge as employed under Section 77 of U.P. VAT Act is relatable to the exercise of the sovereign power of the State or is it relatable to a common law of the term "Charge" employed under the statutory law. (xii) Whether Section 238 of IBC Code,2016 will have any consequences when it is pithily operating in a different field and will not override the provisions of the VAT Act or U.P. Tax on Entry of Goods Act, 2007 or Central Sales Tax Act, 1956? (xiii) Whether the date of taxable event will be relevant consideration or the date of assessment/demand will be relevant consideration for the effective date under the resolution plan as per the provision of U.P. VAT Act or U.P. Tax on Entry of Goods Act,2007? (xiv) Whether controversy involved in these writ petitions is concluded by the judgement of Hon’ble Supreme Court in Ghanshyam Mishra and sons Pvt. Ltd. vs. Edelweiss Asset Reconstructions Company Ltd., [2021 (4) TMI 613 - SUPREME COURT]? (xv) Whether in view of Section 31 of the Insolvency and Bankruptcy Code, 2016 (“Code”) (as amended till date), the terms of the Resolution Plan once approved by the NCLT, is binding on all creditors of the Petitioner, including the Respondents? (xvi) Whether in view of Section 238 of the Code, the provisions of the Code have an overriding effect on the claims of creditors of the Petitioner, including the Respondents? 6. Put up for further hearing along with all connected writ petitions, on 03.09.2021 at 2 P.M.
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