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Showing 181 to 200 of 23051 Records
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2019 (12) TMI 1509
Right of the employer to exercise disciplinary control over an employee - Whether in a revision Under Section 397 of the Code of Criminal Procedure, arising out of conviction, the High Court could have, even while affirming the conviction, taken away the right of the employer to exercise disciplinary control over an employee, on the basis of the conviction by the criminal court?
HELD THAT:- The case on hand is one where the Respondent secured an order from the High Court, behind the back of his employer that his conviction will not have an impact upon the service career of the Respondent. The High Court did not have the power to pass such an order. If at all, the High Court could have invoked, after convicting the Respondent, the provisions of the Probation of Offenders Act, 1958, so that the Respondent could take shelter, if eligible, Under Section 12 of the said Act. In this case, the High Court ventured to do something which it was not empowered to do. Therefore, the Respondent cannot take umbrage Under Section 362 of Code of Criminal Procedure The second reason why the argument of the learned Senior Counsel for the Respondent is fallacious is that the Respondent himself was a beneficiary of what he is now accusing the Appellant of.
It is true that the Respondent entered service way back in the year 1985 and it may certainly cause serious prejudice, if the conviction Under Section 498-A Indian Penal Code at the instance of his daughter-in-law also shakes the very foundation of his employment. But the Respondent can certainly seek protection against such action only before an appropriate forum, if and when the employer chooses to initiate any action. It is not necessary that the employer in all such cases will invariably initiate disciplinary proceeding. The employer may certainly take note of the long service rendered by the Respondent, apart from the fact that the conviction had nothing to do with the discharge of his duties officially - But the High Court, in a revision arising out of conviction, could not have sealed the right of the employer to take action on the basis of conduct which led to the conviction of an employee, within the parameters of the service Rules.
Appeal allowed.
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2019 (12) TMI 1508
Depreciation on crawler cranes/trailers - Whether the crawler cranes/trailers are in the nature of Plant & Machinery and thus eligible for depreciation @15% and not eligible for higher depreciation of 30%? - HELD THAT:- As relying on own case [2017 (12) TMI 644 - ITAT MUMBAI] we do not find any merit in action of lower authorities for declining higher claim of depreciation at 30% on Crawler Cranes and Dozers - Decided against revenue.
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2019 (12) TMI 1507
Depreciation on crawler cranes/trailers - Whether the crawler cranes/trailers are in the nature of Plant & Machinery and thus eligible for depreciation @15% and not eligible for higher depreciation of 30%? - HELD THAT:- As decided in own case[2017 (12) TMI 644 - ITAT MUMBAI] in view of the above discussion and considering judicial pronouncements as quoted above we do not find any merit in action of lower authorities for declining higher claim of depreciation at 30% on Crawler Cranes and Dozers. Appeal of the Revenue is dismissed.
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2019 (12) TMI 1506
Money Laundering - attachment of property which is used by the family members of appellant - proceeds of crime - HELD THAT:- There is nothing on record to show that the property are not used by the family members of the appellant. Liberty is granted to the respondent to verify the actual position of the property and filed the status report by the next date of hearing.
Since, as stated by ld. counsel for the appellant that the property in question is in occupation of the family members of the appellant and Judgment passed by Hon’ble High Court of Madras, there is a prima facie case in favour of the appellant at this stage, if the appellant and his family members are evicted from the said property as it will cause irreparable injury to the appellant and his family members, so balance of convenience lies in passing a status quo order till the next date of hearing at this stage.
Both the parties are directed to maintain the “status quo‟ with respect to the property in question till the next date of hearing subject to conditions imposed - Attachment shall continue till further order - ‘Status quo’ be maintained at this stage with respect to those properties till next date of hearing.
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2019 (12) TMI 1505
Action against the petitioner with regard to the exports that have been undertaken by the petitioner, by three respondent authorities - HELD THAT:- Different authorities can proceed with respect to the same transaction if the liabilities arising from one transaction are in respect of different legislations under which the authorities operate. There is no bar and/or impediment in doing so - the prayer of the petitioner with regard to direction upon only one authority to proceed against the petitioner is prima facie not valid.
The respondents should be allowed to bring on record the factual matrix with regard to the summons having been issued upon the petitioner and the steps the authorities have taken - The matter to appear in the list after exchange of affidavits.
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2019 (12) TMI 1504
Stay petition - ad-interim protection was granted to the Petitioner - HELD THAT:- Ad-interim protection was granted to the Petitioner - By order dated 1 October 2019, it was directed that if the order on the application for stay filed by the Petitioner is adverse to the Petitioner, then no coercive proceedings would be adopted by the Revenue for a period of two weeks. It is upon the rejection of the application for stay, the present petition is filed.
Considering the aforesaid order dated 1 October 2019 and that as we are placing the matter for final disposal on a short date i.e. on 3 January 2020 immediately upon reopening of the Court after Christmas Vacation, we are inclined to continue the protection granted by the order dated 1 October 2019.
Respondents requests that instead of 3 January the matter may be adjourned to 10 January 2020. Accordingly, the petition to stand over to 10 January 2020. The protection granted by the Court by order dated 1 October 2019 in Writ Petition to continue till the next date.
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2019 (12) TMI 1503
Assessment u/s 153A - HELD THAT:- Following the principles laid down in the case MEETA GUTGUTIA [2018 (7) TMI 569 - SC ORDER] as no incriminating material has been found in the course of search in the case of the assessee for the assessment years under appeal, the addition as made by the AO is unsustainable. Consequently, the findings of the Ld.CIT(A) on this issue stands confirmed. Appeals filed by the Revenue are dismissed.
Intimation u/s.143(1) - only restriction to the raising of the legal ground is that no new or fresh facts should be required to be brought into the proceedings or determined through the proceedings - HELD THAT:- In the present case, all the facts are emanating clearly from the assessment order and no new facts have been produced by the assessee nor are being called for determination in the present proceedings. Consequently, the legal ground is liable to be admitted and we do so.
A perusal of the provision of Section 142(1) clearly shows that the AO can issue a notice u/s.142(1) calling upon the assessee to file his return of income only when the assessee has not filed his original return of income under the provision of Section 139(1). In the present case, the assessee has filed his original return on 01.10.2015 which is a return u/s.139(1) and the said return has also been processed u/s.143(1) on 02.06.2016. The notice u/s.142(1) issued on 29.06.2016 asking the assessee to file the return of income consequently is an invalid notice and is liable to be quashed and we do so.
The assessee having filed a valid return u/s.139(1) on 01.10.2015, the time limit calling for details u/s.143(2) for the purpose of assessment expired on 30.09.2016. The notice u/s.143(2) has been issued only on 09.11.2016 which is far beyond the time stipulated under the statute. Consequently, the said notice u/s.143(2) being barred by limitation is liable to be quashed and we do so. As the notice u/s.143(2) has been quashed, the assessment becomes unsustainable and the same stands quashed.
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2019 (12) TMI 1502
Delay in e-filing of appeal - E- Filing of appeal - HELD THAT:- When the assessee admittedly filed appeal manually on 07.04.2016 and also filed electronically on 07.02.2019 and admittedly the CIT(A) has not issued any defect memo, the appeal filed electronically on 07.02.2019 would relate back to the date of originally filed the appeal manually on 07.04.2016. Therefore, there was no delay at all.
Hence, the order of the CIT(Appeals) is set aside and the entire issue raised by the assessee is remitted back to the file of the CIT(Appeals). CIT(Appeals) shall consider the appeal on merit and dispose the same in accordance with law, after giving a reasonable opportunity to the assessee. Appeal filed by the assessee is allowed.
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2019 (12) TMI 1501
Notification issued by Commissioner of State Tax, Gujarat State - HELD THAT:- As this Court is dealing with the petition under Article 226 of the Constitution of India, whereby, a writ of habeas Corpus is prayed for and also taking into consideration the earlier order dated 06.12.2019, we hereby direct the respondent authorities to produce the Corpus – Sureshbhai Ghadecha, who is in judicial custody pursuant to Arrest Memorandum No. DCST/ENF2/STO1/ Arrest Memorandum/201920/B. dated 06.12.2019 before this Court on the next date of hearing i.e. on 16th December, 2019.
This order is passed in presence of the officer of respondent No.3 Authority. Writ of this order be sent to the Jail Superintendent, Sabarmati Central Jail, Ahmedabad. S.O to 16th December, 2019.
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2019 (12) TMI 1500
Delegation of powers to Commissioner for authorizing the arrest - section 69 of the Gujarat Goods and Services Tax Act, 2017 and Central Goods and Services Tax Act, 2017 - HELD THAT:- Let there be a notice returnable on 9.12.2019, as though ostensibly there appears to be an arrest in accordance with law but the counsel for the petitioner is not wholly incorrect in contending that the arrest memo and ground of arrest does not disclose any contemplation or mulling over and coming to a decision for arrest the father of petitioner on account of statutory designated authority and therefore, the factum of arrest becomes absolutely illegal and thus, this Court will have jurisdiction to make appropriate order and even issue writ of habeas corpus.
The order of authorization, which has been referred to by the arresting officer in the arrest memo, whereunder, he has been authorized to arrest the father of petitioner - Application disposed off.
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2019 (12) TMI 1499
Depreciation in respect of residential properties - HELD THAT:- As perused the order of the Tribunal for the A.Y. 2004-05 [2019 (4) TMI 1809 - ITAT MUMBAI] wherein the Tribunal decided this issue in favour of the assessee - as observed that the Tribunal while disposing off appeal for the A.Y. 2005-06 [2019 (4) TMI 1809 - ITAT MUMBAI] to A.Y. 2007-08 directed the Assessing Officer to allow the depreciation as claimed by the assessee on residential premises, however, it was also directed to verify the fact as to whether deduction U/s.24(a) was claimed by the assessee or not and if it is claimed the same is to be disallowed. Similar view has been taken by the Tribunal in [2019 (11) TMI 1368 - ITAT MUMBAI] for the A.Y. 2008-09 and A.Y. 2009-10 by order [2019 (11) TMI 1368 - ITAT MUMBAI]. As the facts being identical respectfully following the said decision, we direct the Assessing Officer to carry out similar exercise as directed
Disallowance of amortization of premium paid on leasehold land has been decided in favour of the Revenue in own case in [2019 (11) TMI 1368 - ITAT MUMBAI] for the A.Y. 2008-09 and A.Y. 2009-10 .
Disallowance of depreciation on toll road - Addition made towards notional interest in respect of toll road from Madhya Pradesh State Industrial Development Corporation - HELD THAT:- We restore this matter to the file of the Assessing Officer with a direction to decide the issue following the directions of the Tribunal for the A.Y. 2005-06 to 2007-08. [2019 (4) TMI 1809 - ITAT MUMBAI] This ground is allowed for statistical purpose.
Disallowance of interest on loan given to IL & FS employee welfare trust - HELD THAT:- We observe that this issue has been decided by the Tribunal for the A.Y. 2009-10 [2019 (11) TMI 1368 - ITAT MUMBAI] held that the assessee has not proved that the loan is given for the purpose of business of the assessee. Even before us the assessee could not substantiate that the loan has been given for the purpose of business of the assessee. In the circumstances, we are not inclined the disturb the finding of the Ld. CIT(A) hence, the action of the Ld.CIT(A) is sustained. Ground raised by the assessee is rejected.
Double addition to income - HELD THAT:- We are inclined to restore this issue to the file of the Assessing Officer with a direction to examine the submissions of the assessee with reference to Books of Accounts, Profit and Loss Account and balance sheet and decide the issue in accordance with law. We make it clear that if it is proved that assessee has offered excess income as claimed by the assessee the same shall not be brought to tax as it would amount double addition, though it is an inadvertent mistake of the assessee.
Disallowance of deduction u/s.36(l)(viii) - HELD THAT:- The appellant had advanced loans for infrastructural facilities to group entities which are developing the infrastructural facilities in separate company. This separate company formed as group entity develops infrastructural facility and income from this accrues to this group entities. The appellant's extended loan for development of infrastructural facilities on long term basis which is the 2nd condition which appellant has to fulfill to claim sec.36(l)(viii). As appellant is fulfilling the condition of specified entity and extending the loan for infrastructural facilities though they are group companies which are themselves developing infrastructural facilities, the appellant is eligible for deduction u/s.36(l)(viii)
Mis-match in AIR - assessee has not explained the transactions and accordingly made addition u/s.69/69B/69C - HELD THAT:- No infirmity in the order passed by the Ld.CIT(A). The Assessing Officer is directed to issue notice u/s. 133(6) of the Act to the parties mentioned in AIR and if the parties confirm that they have made payments to the assessee the same shall be treated as income of the assessee. However, the Assessing Officer shall provide complete details to the assessee to rebut the confirmations which the Assessing Officer receives from the parties. Adequate opportunity shall be given to the assessee to make its submissions; in case the Assessing Officer wants to treat any amount as income of the assessee due to the mis-match in AIR.
Allowing depreciation on computer software @60%.
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2019 (12) TMI 1498
Reopening of assessment u/s 147 - non supply of reasons of reopening to assessee - HELD THAT:- Reasons have to be recorded before assumption of Jurisdiction u/s 147 i.e. before issue of notice u/s 148 - Any developments which take place after assumption of jurisdiction u/s 147 r.w.s.148 has no relevance for deciding whether the AO had reason to believe, before assumption of jurisdiction u/s 147 of I.T.Act ( i.e. before issue of notice u/s 148 that income had escaped assessment. When such reasons are not made available by Revenue either to the assessee or to the appellate authorities we have to conclude that the onus has not been discharged by Revenue to justify assumption of jurisdiction u/s 147 through issue of notice under section 148 of Income Tax Act. When the assumption of jurisdiction u/s 147 read with section 148 of I.T.Act lacks validityt he resultant assessment order lacks legitimacy. On this ground alone, the aforesaid assessment order dated 12.12.2008 deserves to be annulled.
We further note that the Assessing Officer has not furnished reasons for issue of notice u/s 148 to the assessee in spite of order of Hon’ble Supreme Court in the case GKN Driveshafts (India) Ltd [2002 (11) TMI 7 - SUPREME COURT] whereby the Assessing Officer is bound to provide reasons recorded by him for issue of notice u/s 148 of I.T.Act to the assessee once the assessee has filed return in response to the notice issued u/s 148 of Income Tax Act.
As assumption of jurisdiction by the AO u/s 147 of I.T.Act read with section 148 of I.T.Act is based on inquiries conducted without the authority of law. We are of the firm view that assumption of jurisdiction u/s 147 r.w.s. 148 of I.T.Act on the basis of inquiries conducted without the authority of law lacks legitimacy. Assumption of jurisdiction must be held to be unauthorized, when the inquiries made for assuming the jurisdiction were unauthorized in law; and the assessment order passed in pursuance of unauthorized assumption of jurisdiction u/s 147 r.w.s. 148 of I.T. Act, also lacks legitimacy. - Decided in favour of assessee.
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2019 (12) TMI 1497
Forfeiture of property - direct relationship of the detenu with the property or not - if the property sought to be forfeited was the property of a person with whom a direct relationship of the detenu or the associate of the detenu could not be established, then it would be incumbent on the authority under the Act of 1976 to establish that the relevant property was acquired with illegal funds? - HELD THAT:- In exercise of the authority of judicial review, the scope for interference is rather limited. When a fact-finding authority has addressed the objections of the writ petitioner and an appellate authority has endorsed the relevant order, the High Court in exercise of its jurisdiction under Article 226 of the Constitution cannot reappraise the matter. All that the High Court seeks to ascertain is whether the procedure adopted by the authorities under the relevant statute was rational, reasonable and proper. The High Court would also attempt to find out whether due notice was given to the writ petitioner, whether he was afforded a fair hearing and a reasoned order was passed. Once the High Court is satisfied that the order complained against was passed by an authority possessing jurisdiction, that the procedure adopted was reasonable and the process of adjudication culminated in a cogent decision, the High Court would not look any further.
The other ground that can be invoked by the High Court to interfere with an order of such kind would be if the order shocks the conscience of the court, in the sense that no reasonable person in the position of the relevant executive or quasi-judicial authority could have passed the order on the set of facts before it. The facts in this case were that the writ petitioner had been detained under the Act of 1974, though the Advisory Board opined that there was not enough material against him to detain him. Even if the writ petitioner’s status as a detenu under the Act of 1974 was wiped clean upon the opinion of the Advisory Board to not proceed against the writ petitioner, the writ petitioner’s association with the said Pothiawala was good ground under Section 2(2)(d) of the Act of 1976 to forfeit any property of the writ petitioner.
As to whether the writ petitioner was an associate of the said Pothiawala or the writ petitioner could be said to have had no nexus with such person, was essentially a question of fact. When the writ court discovered that a fact-finding authority had addressed the matter and had rendered a finding which was endorsed in appeal, unless glaring anomalies were demonstrated, the writ court would not have reopened the matter or revisited the issue - Appeal dismissed.
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2019 (12) TMI 1496
CENVAT Credit - allegation is that input services received for use in or in relation to the final Products, cannot be utilized by the appellant for dis-charging its Service Tax liability - HELD THAT:- This Bench of the Tribunal in M/S VEDANTA ALUMINIUM LTD. VERSUS COMMR. OF CENTRAL EXCISE, CUSTOMS & S. TAX, BBSR II [2018 (5) TMI 2060 - CESTAT KOLKATA] had decided in favour of the appellant-assessee. The Tribunal held that appellant has availed cenvat credit on inputs, capital goods and also input services and maintained a common account/Register, while discharging excise duty on the clearance of finished goods also service tax on output service, they utilized the cenvat credit from the input common pool account. When the amount was utilized from the common pool account, then cenvat credit is eligible.
Appeal allowed - decided in favor of appellant.
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2019 (12) TMI 1495
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Operational Creditors - existence of debt and dispute or not - HELD THAT:- It is not disputed that the debt is payable to the Operational Creditor, which is more than ₹ 1 Lakh and there is default in making payment.
Such submission cannot be accepted as Authorisation Letter, even if, issued prior to the enactment of I&B Code can be looked into for purpose of entertaining an application under Section 7 or 9 of the Code - Appeal dismissed.
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2019 (12) TMI 1494
Demand of duty forgone - remittance for the goods exported could not be shown to have received from Asian Development Bank in freely convertible currency in Indian rupee - N/N. 45/2001-CE (NT), dated 26.06.2001 - HELD THAT:- The said project was undertaken as per bilateral agreement India and Bhutan for generation of electricity. The impugned notification was also issued under Rule 19 of the Central Excise Rules, 2002, permitting export of the goods to the said specified project in Bhutan under bond with security. Bank certificates submitted by the appellant side also confirmed receipt of payment in freely convertible currency in Indian rupee as specified in the said notification.
The situation in the instant issue was not different from that or the said past exports. Once exports were admittedly made and received by the project authority, there cannot be any demand of Central Excise duties. The duty on the goods can be demanded only if the goods have not been exported out of India within the stipulated period but, there is no such allegation in the demand notices. In view of this, demand notices are not sustainable. Therefore, once the remittances of export proceeds were originated from Asian Development Bank, as certified by the Banks at the recipient end, the demand notices were unfounded.
Appeal allowed - decided in favor of appellant.
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2019 (12) TMI 1493
Valuation of imported goods - old and used worn clothing - enhancement of declared value - Confiscation - penalty - HELD THAT:- The enhancement of value has been ordered by the First Appellate Authority on the basis of concurrence given by the importer for such enhancement. There is no challenge to the order of confiscation, but Revenue is challenging the quantum of redemption fine and penalty, which stand reduced by the learned Commissioner(Appeals).
Redemption fine - Personal Penalty - HELD THAT:- Tribunal in the case of M/S. OMEX INTERNATIONAL VERSUS COMMISSIONER OF CUSTOMS, NEW DELHI [2015 (4) TMI 112 - CESTAT NEW DELHI (LB)] has taken the view that redemption fine of 10% and penalty of 5% of the value of the imported goods, would be appropriate in case of import violating Exim Policy Provisions - there are no reason to interfere with the findings of the learned Commissioner(Appeals) on the basis of such decision.
Appeal dismissed - decided against Revenue.
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2019 (12) TMI 1492
Rejection of Transitional credit available on the stock of goods - rejected on the ground that the tax payer had no technical glitches in filing TRAN-1 as per the system logs - HELD THAT:- The issue involved herein is no more res integra in view of the order of this Court M/S ASIAD PAINTS LIMITED, VERTIV ENERGY PVT. LTD., M/S. WEIWO COMMUNICATION PVT. LTD. AND ORS. VERSUS UNION OF INDIA, GOODS AND SERVICE TAX NETWORK, THE COMMISSIONER OF COMMERCIAL TAXES (GST) , THE ASSISTANT COMMISSIONER OF COMMERCIAL TAXES [2019 (12) TMI 464 - KARNATAKA HIGH COURT] and connected matters, whereby this Court has extended the period to file/revise the TRAN-1 by the registered persons under the Central Goods and Services Act, 2017 by 31.12.2019. Hence, the petitioner is entitled to avail the extended period for filing/revising of TRAN-01.
Petition allowed.
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2019 (12) TMI 1491
Violation of principles of natural justice - opportunity of hearing not provided - Non-payment of penalty and GST - satisfactory explanation for non-payment also not given - HELD THAT:- This Court had an occasion to deal with a similar issue in C. SANKAR VERSUS THE TAMIL NADU STATE MARKETING CORPORATION LTD, REP. BY ITS MANAGING DIRECTOR, THE SENIOR REGIONAL MANAGER, TASMAC, THE DISTRICT MANAGER, TASMAC, THIRU. M.R. RAJESHKANNA, SHOP SUPERVISOR, TASMAC [2019 (2) TMI 1929 - MADRAS HIGH COURT], which squarely apply to the facts of the present case.
The petitioner has been punished without even giving an opportunity. Without deciding the charge that has been made against the petitioner, the petitioner has been directed to pay the amount and on non payment, the petitioner has also been suspended from service. This clearly constitutes predetermination of the entire issue. The 3rd respondent cannot compel the petitioner to first pay the penalty and GST, and thereafter participate in the enquiry, and on nonpayment cannot suspend the petitioner. This procedure adopted by the 3rd respondent is like putting the cart before the horse. The petitioner is first punished and thereafter he is asked to attend for an enquiry. This clearly goes against the principles of natural justice.
The 3rd respondent is directed to issue a fresh show cause notice to the petitioner setting out all the details, within a period of four weeks from the date of receipt of copy of this order. On receipt of the show cause notice from the respondent, the petitioner is directed to submit his explanation/objection and also the documents relied upon by him, within a period of three weeks from the date of receipt of the show cause notice - petition allowed by way of remand.
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2019 (12) TMI 1490
Seeking approval of the ‘Resolution Plan’ - Tourism Finance Corporation of India Limited - Categorized as ‘Unsecured Financial Creditor’ - correct or not - Section 30(6) r/w Section 31 of the Insolvency and Bankruptcy Code, 2016 - HELD THAT:- The question as to whether the ‘Tourism Finance Corporation of India Limited’ is a ‘Secured Creditor’ or ‘Unsecured Creditor’ is a question of fact normally determined by the ‘Resolution Professional’ or the ‘Committee of Creditors’ or in appropriate cases it has also been discussed by the ‘Committee of Creditors’ - The Adjudicating Authority (National Company Law Tribunal) or this Appellate Tribunal (National Company Law Appellate Tribunal) has no jurisdiction to decide the same in an appeal preferred under Section 61(3) of the ‘I&B Code’.
As the case of the Appellant- ‘Tourism Finance Corporation of India Limited’ was not covered by any of the grounds mentioned in Section 61(3) and this Appellate Tribunal cannot decide the question of fact relating to whether it is a ‘Secured Creditor’ or ‘Unsecured Creditor’, the impugned order need not be interfered with.
Amount of interest to be included as on Insolvency Commencement Date, is reduced without any explanation - HELD THAT:- The ‘Committee of Creditors’ has made the distribution in terms of Section 30(4), this Appellate Tribunal has no jurisdiction to question the distribution so made - Admittedly, the Appellant- ‘Virag Enterprise’ has been provided the amount more than the liquidation value, therefore, it cannot allege that the plan is violative of Section 30(2)(b) of the ‘I&B Code’. If the Appellant does not accept the amount within the time frame, as proposed, in such case, it will not be entitled to receive any amount as the Appellant is not a ‘Secured Creditor’, it may not receive 10% - This Appellate Tribunal cannot sit in an appeal over such decision of the ‘Committee of Creditors’ which approved the plan with more than 77.79% of the voting shares looking into the viability, feasibility and other factors prescribed by the Insolvency and Bankruptcy Board of India - Appeal dismissed.
Demand towards Value Added Tax/ Central Sales Tax due from the ‘Corporate Debtor’ by Demand Notice in Form 305 under the ‘Gujarat Value Added Tax, 2003, and Demand Notice in Form 8(B) under the Central Sales Tax Act, 1956 - HELD THAT:- In view of Statement of Objects and Reasons of the ‘I&B Code’ read with Section 53 of the ‘I&B Code’, the Government cannot claim first charge over the property of the ‘Corporate Debtor’. Section 48 cannot prevail over Section 53. Therefore, the Appellant- ‘State Tax Officer- (1)’ do not come within the meaning of ‘Secured Creditor’ as defined under Section 3(30) read with Section 3(31) of the ‘I&B Code’ - Further, as ‘Sales Tax Department’ filed its claim at belated stage after the plan had been approved by the ‘Committee of Creditors’, the ‘Resolution Professional’ had no jurisdiction to entertain the same and rightly not entertained - There are no merit in this appeal preferred by ‘State Tax Officer (1)’. It is accordingly dismissed.
Payment of provident fund amount - HELD THAT:- As no provisions of the ‘Employees Provident Funds and Miscellaneous Provision Act, 1952’ is in conflict with any of the provisions of the ‘I&B Code’ and, on the other hand, in terms of Section 36 (4) (iii), the ‘provident fund’ and the ‘gratuity fund’ are not the assets of the ‘Corporate Debtor’, there being specific provisions, the application of Section 238 of the ‘I&B Code’ does not arise - the ‘Successful Resolution Applicant’- 2nd Respondent (‘Kushal Limited’) is directed to release full provident fund and interest thereof in terms of the provisions of the ‘Employees Provident Funds and Miscellaneous Provision Act, 1952’ immediately, as it does not include as an asset of the ‘Corporate Debtor’. The impugned order dated 27th February, 2019 approving the ‘Resolution Plan’ stands modified - appeal preferred by ‘Regional Provident Fund Commissioner’ is allowed.
Application disposed off.
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