TMI Blog2022 (3) TMI 869X X X X Extracts X X X X X X X X Extracts X X X X ..... y of clause (e) or (f) of the Regulation 32, within 90 days from the liquidation commencement date, he is required to sell the assets of the company under liquidation by other methods. The petitioner is an appointee of National Company Law Tribunal and is not required to run from the post to pillar for the grant of registration under the GST Act. He already had approached the concerned officer and therefore, when he was denied the same on the ground of issue of limitation, he had preferred an appeal, however, the respondent authority when conveyed him to apply afresh, he has chosen to approach this Court - According to this Court, once an application was moved for obtaining the registration under GST before the respondent authority, the denial of registration under the GST is completely on an ill conceive ground. Not only the authority concerned had not distinguish between the IRP/RP and liquidator but, both have different functions and even otherwise, if all of them are considered as the persons authorized under the provisions of Insolvency and Bankruptcy Code, 2016, applying even the notifications 11/2020 and 39/2020 in case of the present petitioner, the authority could not h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... debtors before the National Company Law Tribunal (hereinafter referred to as NCLT ). 2.1. The NCLT admitted the application vide order dated 10.04.2017 and Corporate Insolvency Resolution Process commenced against the Stratus Foods Private Limited which is a Company registered under the Companies Act, registered at Vadodara. The Company was engaged in the business of industrial catering in the district of Vadodara under the name and style of Cloud Cooking. 2.2. The petitioner has been appointed as an Interim Resolution Professional ( IRP for short) of the Stratus Foods Private Limited and in the first meeting of the creditors dated 18.05.2017, the appointment of the petitioner was confirmed as a Resolution Professional ( RP for short). 2.3. The petitioner has averred in the petition that the petitioner made efforts to revive the Stratus Foods Private Limited during the period of Corporate Insolvency Resolution Process, however, no plan has been received from any prospective resolution applicant, therefore, a committee of creditors passed a resolution for liquidation of Stratus Foods Private Limited on 06.01.2018. 2.4. The petitioner filed I.A. No. 489 of 2018 in Comp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ST dated 21.03.2020 amended by Notification No. 39/2020-CENTRALTAX [G.S.R. 273(E)/F.NO.CBEC-20/06/04/2020-GST] dated 05.05.2020. 2.8. According to the petitioner, the respondent appreciated the Notification No. 39/2020 dated 05.05.2020 under the process which deals with the registration by Resolution Professionals or Interim Resolution Professionals during the Corporate Insolvency Resolution period. This notification do not obligate the liquidator of the company undergoing liquidation process to make an application for registration within one month or before 30.06.2020. 2.9. An appeal was preferred before the Appellate Authority on 15.12.2020. On various occasions, the petitioner visited the office of the respondent to resolve the issue and obtain the GST registration to carry out the work of liquidation which is a time bound process as the period of liquidation was coming to an end. 2.10. The petitioner on 27.01.2021 while visiting the office of the respondent, produced the IBBI Circular No. IPPage 15011/1/2019-IBBI dated 07.03.2019 which categorically states that the IRP/RP/Liquidator is an officer of the Court. He was asked to once again apply for the registration and h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ery raised by the department and chose to ignore the same. Non-furnishing of the requisite documents is the reason and the respondent has acted as per the notification as the application has been filed belatedly. It is not about his intent but when the law prescribed for grant of registration does not permit, the respondent cannot allow the same. 3.4. Reliance is placed on Rule 108 of CGST Rules, 2017 which provides the manner in which the same needs to be preferred. 3.5. There are disputed questions of facts which cannot be gone into in the writ jurisdiction under Article 226, according to the respondent. Reliance is also placed on the decision of Commissioner of Income Tax and Others vs. Chhabil Das Aggarwal [(2014) 1 SCC 603] to urge that the writ petition should not be entertained when alternative remedies are available. 4. Affidavit-in-rejoinder is filed questioning and challenging every contentions raised by the respondent. 5. Noticing the urgent nature of issue, with the consent of both the sides, the matter has been taken up for final hearing at the admission stage where we have heard learned advocate Ms. Aaksha Sajnani with learned advocate Mr. Jaimin Dave appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he proper officer has been given a discretion to register such person in such a manner as prescribed, in the event of any delay in obtaining the registration on its own. The proper officer can additionally impose penalty in accordance with law under Section 122 of the GST Act also. 6.4. The petitioner is an appointee of National Company Law Tribunal and is not required to run from the post to pillar for the grant of registration under the GST Act. He already had approached the concerned officer and therefore, when he was denied the same on the ground of issue of limitation, he had preferred an appeal, however, the respondent authority when conveyed him to apply afresh, he has chosen to approach this Court. 6.5. The petitioner has made available the order of liquidation passed by the NCLT on 31.01.2019, therefore, to say that he never clarified that he was acting as a liquidator is not a sustainable premise. The Court also cannot be oblivious that for non-allotment of GST Registration Number, the petitioner had approached the Appellate Authority on 15.12.2020. The appeal being inefficacious, no insistence can be made of invocation of the discretion of this Court under Article ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssionals has been appointed prior to the date of this notification, he shall take registration within thirty days from the commencement of this notification, with effect from date of his appointment as Interim Resolution Professionals/Resolution Professionals. 8.1. The amended Notification No. 39/2020 states thus: - (i) in the first paragraph, the following proviso shall be inserted, namely: - Provided that the said class of persons shall not include those corporate debtors who have furnished the statements under section 37 and the returns under section 39 of the said Act for all the tax periods prior to the appointment of IRP/RP. ; (ii) for the paragraph 2, with effect from the 21st March, 2020, the following paragraph shall be substituted, namely: - 2. Registration: - The said class of persons shall, with effect from the date of appointment of IRP/RP, be treated as a distinct person of the corporate debtor, and shall be liable to take a new registration (hereinafter referred to as the new registration) in each of the States or Union Territories where the corporate debtor was registered earlier, within thirty days of the appointment of the IRP/RP or by 30 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e such requirement, the same could have been asked for, however, to deny merely on the ground of his not having specified of his being a liquidator or for that matter, a very negligible and minor aspect, deserves the disapproval of the Court. It is not to be forgotten by the respondent authority that the registration under the GST Act is a must for the liquidator to operate and fulfill the obligations in his capacity as a liquidator as required under the statute. It is the NCLT which has appointed the liquidator who could not have been asked to run from the post to pillar and approached this Court by adopting highly technical and deprecated complexity in awarding the GST Registration Number. 10.2. As rightly pointed out by the petitioner, wherever there is a requirement, Section 25 requires the proper officer to register such person in such a manner as may be prescribed, if he is otherwise liable to be registered. Thus, in case of any delay in obtaining the registration, Section 25(8) obligates the proper officer to proceed to register such person. He may impose a penalty in accordance with Section 122 of the GST Act, however, this non-grant of registration for fulfilling the of ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
