TMI Blog2021 (1) TMI 1165X X X X Extracts X X X X X X X X Extracts X X X X ..... T:- After considering the entire gamut of the matter, this Tribunal disposed of application directing the Resolution Professional to file an appeal before the Joint Commissioner, that too on the submission of the Resolution Professional before this Tribunal that the CoC resolved to file an appeal before the GST Commissioner for revisiting the claim amount of the applicant. There is no error in the Order in application to be clarified by this Tribunal - application dismissed. - MA No. 205/KOB/2020 in MA/140/KOB/2020 IN TIBA/11/KOB/2019 - - - Dated:- 28-1-2021 - Mr. Ashok Kumar Borah, Member (Judicial) For applicant : Shri Bijoy Prabhakaran Pulipra, RP For Respondent : Shri Mohammed Fazil, MP, Govt. Pleader ORDER This M.A has been filed under Section 60(5) of Insolvency and Bankruptcy Code 2016[hereinafter referred to as I B Code 2016] by Shri Bijoy Prabhakaran Pulipra, the Resolution Professional appointed by this Tribunal in TIBA/11/KOB/2019 and IBA/28/KOB/2019 against State Tax Officer (Works Contract) in the matter of PVS Memorial Hospital Private Limited seeking the following clarification in relation to the order passed in MA/140/KOB/2020: - a) Iss ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tating that the charging of GST liability on the total turnover of the Corporate Debtor is not correct in view of the Notification No.9/2017 Integrated Tax (Rate) dated 28.6.2017. The Health Care Services by clinical establishment is exempted from GST and hence revenue generated under the Head, In-patient Collections and Out-Patient Collections , Laboratory and Diagnostic Services being the Health Care Services rendered to admitted Out-patient respectively are not liable to GST. However, it was admitted that pharmacy sales to out-patients, canteen collections on food supply to those other than inpatients, car parking charges, commission received, rent received and other miscellaneous collections are liable to be assessed under GST. The applicant stated that the rejection of the amount under Regulation 14 is not sustainable for the reason that there is no un-preciseness in the amount claimed by the creditor either due to any contingency or other reasons. Section 62 of CGST/SGST Act, 2017 permits assessment of non-filers of returns. Different notices (18 Nos) envisaged under Section 46 was issued from April, 2018 to September, 2019. Based on that only the Resolution Professional ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Section 107 of the CGST/SGST Act,2017 is barred from initiating any assessment proceedings or passing an order, judgement or Decree against the Corporate Debtor. Section 107(6) of the CGST/SGST Act,2017 which reads as follows: - (6) No appeal shall be filed under sub-section (1), unless the appellant has paid- (a) in full, such part of the amount of tax, interest, fine, fee and penalty arising from the impugned order, as is admitted by him; and (b) a sum equal to ten per cent. of the remaining amount of tax in dispute arising from the said order, in relation to which the appeal has been filed, 6. The Applicant also stated that Section 238 of I B Code, 2016 gives an overriding effect to the IBC over all other laws. Section 238 reads as follows: - 238. Provisions of this Code to override other laws. The provisions of this Code shall have effect, notwithstanding anything inconsistent therewith contained in any other law for the time being in force or any instrument having effect by virtue of any such law. 7. Quoting the above provision, the Learned Resolution Professional argued that requirement to pre deposit of an amount to file an appeal before the Joint Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... exhausted those facilities within the time prescribed in the statute. 11. The Respondent has referred to a decision of the Calcutta High Court in Burn Standard Co. Ltd. Vs. United Bank of India (G.A. No.2287 of 2017 dated 24.07.2017) to state that there is no prohibition for filing or continuation of suit or proceedings by the Corporate Debtor even after the declaration of moratorium under Section 14 of the Code. 12. This Tribunal carefully gone through the averments made by the applicant Resolution Professional and the reply statement filed by the Respondent State Tax Department and considered the decisions placed before the Tribunal. After considering the entire gamut of the matter, this Tribunal disposed of M.A No.140/KOB/2020 directing the Resolution Professional to file an appeal before the Joint Commissioner, that too on the submission of the Resolution Professional before this Tribunal that the CoC resolved to file an appeal before the GST Commissioner for revisiting the claim amount of the applicant. The relevant portion of the minutes of the CoC meeting held on 15th July, 2020 is reproduced below: Chairman further informed that in the best interest of CIRP, an a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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