TMI Blog2020 (12) TMI 755X X X X Extracts X X X X X X X X Extracts X X X X ..... Income Tax Returns, prior to the order of Hon ble NCLAT. Due to Covid-19 Pandemic, the time for submission of IT Return was extended and the applicants have filed the IT Returns and produced the proof of submission. The contention of the respondents on this core is to be rejected partly. It is found from the chart submitted by the Respondent No.2- Resolution Professional that no amount is payable to Applicant No.1/ MIPL in respect of the factory premises since it was not used for CIRP as a going concern . This statement has not been rebutted by the applicants in their rejoinder. Therefore, this Tribunal is of the view that the respondent- Resolution Applicant is bound only to pay the licence fee claimed by the Applicant No.2. Since the 2nd Applicant- M/s Grove Limited have not refunded the security deposit of ₹ 50 Lakhs, the 3rd respondent is bound to pay the licence fee deducting the amounts of ₹ 50 Lakhs with the interest, if any. Application allowed in part. - MA/ 115/ KOB/2020 In MA/ 515/ 2019, CHENNAI BENCH In Company Appeal (AT) (Ins) No. 315 of 2019 In CP (IB) No.689 of 2017 - - - Dated:- 4-12-2020 - Hon ble Mr. Ashok Kumar Borah , Member ( Judicial ) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uarantees executed favouring the Corporate Debtor. 2. In the counter filed by the Respondent No. 1, it is stated that the application filed by the applicants is not maintainable in law as the reliefs sought by the applicants are beyond the scope of the jurisdiction of this Tribunal. It is further stated that the order of the Hon'ble NCLAT partly allowed CA (AT) (Ins) No. 307 of 2019 with a direction to include the cost of license fee to the builder where the CIRP has been carried out and business was running as a going concern basis for the period till CIRP was continued or until the handing over of the building to the building owner, whichever is earlier, restricted to the Income Tax Return so far filed. It is further stated that there were no subsisting license agreements either in Merchem (India) Private Limited ( MIPL ) or Grove Limited ( Grove ) at the time of commencement of the CIRP. With respect to MIPL, Resolution Professional has not availed any service from MIPL during CIRP period and that the plant and machinery of MIPL was not even used for running any business of the Corporate Debtor for a period of 3 years prior to the Insolvency Commencement date and as su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... GROVE Limited 3. Where the CIRP has been carried out Locked condition opened only for showing PRAs Part of the building used by ML s staff and RP No qualms about part or fully used- since no such claim raised by RP earlier only in case of office premises. 4. Business was running on a going concern basis No Yes Factory premises/ machinery cannot be said to be going concern if not at all used- it was not used for more than 3 years before CIRP commencement date also 5. For the period till CIRP was continued or they have handed over the building to building owner whichever is earlier 15.01.2018 to 23.01.2019 15.01.2018 to 23.01.2019 CIRP commencement date to the date of the order approving the resolution Plan by AA (CIRP ends on the day of approval of the resolution Plan). 6. The same is to be restricted to his Income Tax Returns I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment to all the stakeholders and the same has been duly distributed as well. It is also submitted that if any additional CIRP costs are determined to be payable, it is for Respondent No. 1 to redistribute from the Resolution Plan value already provided by Respondent No.3. All the other frivolous claims raised by the Applicants, such as claims towards loans, different charges allegedly incurred, licence fees for the period before CIRP, GST calculated without any basis, etc. are blatantly frivolous, ex facie illegal and non-maintainable for the following reasons: i. In terms of Section 17 of the IB Code, 2016, upon initiation of CIRP against Corporate Debtor and appointment of Interim Resolution Professional, the entire management of the Corporate Debtor vests with the Interim Resolution Professional and the IRP/RP as the case may be. ii. The said IRP/RP continues to exercise the management of the affairs and powers of the board of directors of the Corporate Debtor until completion of CIRP or withdrawal of CIRP or Liquidation of the Corporate Debtor. iii. Therefore, all debts antecedent to approval of the Resolution Plan are either settled or extinguished under the Resolutio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Licence fee for the CIRP period forms part of IRP costs and should have been paid in full while this has not been considered and similarly the financial debt has not been paid. The Appellant is insisting that the Resolution Applicant has handed over the building and other apartments only on 17.06.2019 and his dues of ₹ 82,65,000/- along with additional 5 months licence fee at the rate of ₹ 5 Lakhs per month has yet to be paid. a) However, the Resolution Professional stated that the Appellants are related party and hence are not prejudicially affected and he has determined over ₹ 6 Crores recoverable from the related party. He has also stated that figures of Rent etc. are invariance with Income Tax Return filed by the Appellant and hence they are not entitled to the claim. This is a grey area and needs consideration in view of Section 14 (1) of I b Code, 2016 read with Regulation 31 of IBBI (Insolvency Resolution Process of Corporate Persons) Regulations, 2016. Since the premises was used by the Resolution Professional during the CIRP, licence fee payment should have been considered at least tallying to the Income Tax Return of the respective years. The Reso ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Income Tax Department and IBC 2016 lays down that the Resolution Plan should be in compliance with the law laid down. Hence, there is a need for getting an affidavit from the Resolution Applicant that he will be successfully completing the Resolution Plan whether he gets this set off under Income Tax Act or not. Secondly the issue is payment of licence fee to the building owner where the CIRP has been carried out and business was running on a going concern basis for the period till CIRP was continued or they have handed over the building to the building owner whichever is earlier and the same is to be restricted to his Income Tax returns so far filed. This costs need to be included in CIRP costs. 8 ...However, CA (AT) Ins No. 307 of2019 and CA(AT) Ins No.315 of2019 are partly allowed as indicated above. 14. Hence, the contention of the applicants that it was impossible for them, to file the ITR by anticipating the requirement stated in the Hon ble NCLAT order and that the findings of the Appellate Tribunal cannot be held against the applicants as they have filed the ITRs within the last dates. 15. In view of the above, that part of the order of Hon ble NCLAT has to ..... X X X X Extracts X X X X X X X X Extracts X X X X
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