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TMI Blog2019 (12) TMI 1490X X X X Extracts X X X X X X X X Extracts X X X X ..... rporate Insolvency Resolution Process' of 'Rainbow Papers Limited'- ('Corporate Debtor'), the 'Resolution Professional' filed application under Section 30(6) r/w Section 31 of the Insolvency and Bankruptcy Code, 2016 ("I&B Code" for short) seeking approval of the 'Resolution Plan' submitted by 'Kushal Limited'. 2. In the said 'Corporate Insolvency Resolution Process', 'Tourism Finance Corporation of India Limited' ('Financial Creditor') moved Interlocutory Application No. 273 of 2018 alleging that the 'Tourism Finance Corporation of India Limited' (one of the Appellants herein) has been wrongly categorized as 'Unsecured Financial Creditor'. 3. Another Interlocutory Application No. 337 of 2018 was filed by 'Virag Enterprise', an 'Operational Creditor' (Appellant herein) alleging wrong distribution and delayed payment shown in the 'Resolution Plan'. 4. 'Sales Tax Officer (1), Kadi, Dist. Mehsana, Gujarat' (one of the Appellants) filed petition and prayed for payment of total dues of Rs. 47,35,72,314/- towards Value Added Tax/ Central Sales Tax on the ground that the said 'Sales Tax Department' is a 'Secured Creditor'. 5. The Adjudicating Authority (National Company Law Tribunal), ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f 3rd year and 25% as share warrants thus causing grave loss and prejudice to the Appellant also discriminating among the same class of 'Secured Financial Creditors'. 10. It was submitted that the action of the 'Resolution Plan' and the 'Committee of Creditors' which convened its meeting on 4th June, 2018 is against the provision of Section 30(4) of the 'I&B Code'. 11. It was further submitted that the 'Resolution Professional' can only collate the claim but it has no jurisdiction to decide or adjudicate upon the nature and status of claim or debt. 12. The 'Resolution Professional' has raised preliminary objections about the maintainability of the appeal preferred by 'Tourism Finance Corporation of India Limited'. 13. It was submitted by the 'Resolution Professional' that the Interlocutory Application Nos. 273 & 224 of 2018 were preferred by the Appellant after the completion of the period of 'Corporate Insolvency Resolution Process' prescribed under the 'I&B Code' and order dated 12th September, 2017 r/w order dated 19th March, 2018 passed by the Adjudicating Authority. 14. It was contended that the 'Resolution Professional' had not changed the status of the Appellant from 'S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 'Unsecured Creditor', we are not inclined to interfere with the impugned order dated 27th February, 2019. The appeal is dismissed. Case of Appellant- 'Virag Enterprise' 18. The case of the Appellant- 'Virag Enterprise' is that the proof of the claim for Rs. 41,01,098/- was provided to the 'Resolution Professional' along with the Affidavit dated 29th September, 2017 with all the relevant documents. The total amount of the claim included interest as on the Insolvency Commencement Date. However, the 'Resolution Professional' reduced the claim to Rs. 29,38,689/- without giving any explanation. 19. It was submitted that as per the 'Resolution Plan', the Appellant- 'Operational Creditor' will get cash payment of the 10% of the total outstanding amount in five equal installments from the 3rd to 7th year after the effective date. 20. It was stated by the Appellant- 'Virag Enterprise' that apart from 10% of the outstanding amount, the 'Resolution Plan' provides for issue of share warrant with an option to purchase the shares by paying 75% of the offer price within the next 18 months at their sole discretion. The initial subscription towards share warrant, which is 25%, is a credit giv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the demand of Rs. 47,35,72,314/- 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 for the years 2012-13 to 2015-16 and as per return filed by the Dealer, the 'Corporate Debtor' for the period 1st March, 2016 to 30th June, 2016. 30. After Demand Notice, the matter was challenged and remained pending before the Gujarat Value Added Tax Tribunal at Ahmedabad. In the meantime, by order dated 12th September, 2017, the Adjudicating Authority declared Moratorium under Section 13(1) (a) and Section 14 of the 'I&B Code' since it has the overriding effect. The Adjudicating Authority while admitted the appeals but no order of predeposit and subsequently it remanded the matter to the First Appellate Authority. 31. It was submitted that the Appellant vide letter dated 22nd October, 2018 approached the 'Resolution Professional' of the 'Corporate Debtor' asking to confirm the amount of claim accepted by the 'Resolution Professional'. The 'Resolution Professional' in reply to his letter dated 22nd October, 2018 has informed the Appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be, such person." 38. 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'. 39. 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. We find no merit in this appeal preferred by 'State Tax Officer (1)'. It is accordingly dismissed. No costs. Case of the Appellant- 'Regional Provident Fund Commissioner-I, Ahmedabad' 40. According to Appellant- 'Regional Provident Fund Commissioner', 'Successful Resolution Applicant' is supposed to pay the total provident fund amount, but only a part of the amount has been allowed by the 'Resolution Professional'. 41. It was submitted that the 'Resolution Plan' is against the provisions of Section 36(4) (iii) of the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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