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TMI Blog2022 (6) TMI 1074X X X X Extracts X X X X X X X X Extracts X X X X ..... thereto, and quash the same as illegal, arbitrary and unconstitutional and consequently forbear the respondent from proceeding with re-assessment under Section 147 & 148 of the Income Tax Act, 1961 in respect of the Assessment Year 2012-13. 2 34654/2018 For issuance of a Writ of Certiorarified Mandamus, to call for the records comprised in the impugned Notice dated 27.03.2018 bearing PAN:AAACR5136R, as also letter dated 15.11.2018 bearing PAN:AAACR5136R / Company / CC I(1)/2018-19, the notice dated 27.09.2018 bearing PAN: AAACR5136R and the order dated 17.12.2018 bearing PAN:AAACR5136R/AY 2011-12 issued in furtherance thereof by the respondent and all proceedings pursuant thereto, and quash the same as illegal, arbitrary and unconstitutional and consequently forbear the respondent from proceeding with re-assessment under Section 147 & 148 of the Income Tax Act, 1961 in respect of the Assessment Year 2011-12. 3 34664/2018 For issuance of a Writ of Certiorarified Mandamus, to call for the records comprised in the impugned Notice dated 26.03.2018 bearing PAN:AAACR5136R, as also letter dated 15.11.2018 bearing PAN:AAACR5136R / Company / CC I(1)/2018-19, the notice dated 27.09.20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Tax Act, 1961 in respect of the Assessment Year 2011-12. 2. For easy reference, the details of the name of the petitioner company and the Assessment Years and impugned notices / orders are tabled as follows:- Sl. No. W.P.No. Name of the Petitioner /Company A.Y. Date of first impugned Notice Date of impugned Letter Date of second impugned Notice Date of impugned Order 1 34668/18 M/s.Dishnet Wireless Ltd. 12-13 28.03.18 07.12.18 28.09.18 24.12.18 2 34671/18 M/s.Dishnet Wireless Ltd. 11-12 28.03.18 07.12.18 28.09.18 24.12.18 3 34649/18 M/s.Aircel Limited 13-14 26.03.18 15.11.18 27.09.18 17.12.18 4 34657/18 M/s.Aircel Limited 11-12 27.03.18 15.11.18 27.09.18 17.12.18 5 34664/18 M/s.Aricel Cellular Ltd. 13-14 26.03.18 15.11.18 27.09.18 17.12.18 6 34654/18 M/s.Aricel Cellular Ltd. 11-12 27.03.18 15.11.18 27.09.18 17.12.18 3. By the impugned Notices, the respondent Income Tax Department has sought to re-open the completed assessment. By the impugned orders, the objections of the petitioners against the re-opening of the assessment vide impugned Notices issued under Section 148 of the Income Tax Act, 1961 are sought to be a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... been written off fully, and permanently extinguished an no adverse orders passed in the said matters should apply to the Corporate Debtor or the Resolution Applicant. Upon approval of this Resolution Plan, all new inquiries, investigations, notices, suits, claims, disputes, litigations, arbitrations or other judicial, regulatory or administrative proceeding will be deemed to be barred and will not be initiated or admitted against the Corporate Debtor in relation to any period prior to the Effective Date. Granted, subject to the condition that these shall pertain to any inquiries, investigations, proceedings, suits, claims, disputes, etc. only in relation to the period prior to the Approval Date, and not thereafter. From the Approval Date, the corporate applicants now controlled applicants now controlled by the RA shall be responsible for their own destinies arising out of noncompliance for the period after such approval. 9. The learned Senior Counsel for the petitioners submits that the issue is to be decided in the light of the decision of the Hon'ble Supreme Court in Ghanashyam Mishra & Sons (P) Ltd. Vs. Edelweiss Asset Reconstruction Co. Ltd., (2021) 9 SCC 657 which was fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . In any case, it is to be noticed, that the Forest Department of the State Government had filed intervention application before NCLT as well as NCLAT. When one of the wings of the State Government has approached NCLT and NCLAT, it is difficult to believe, that other organ of the State was not aware about the said proceedings." 11. The learned Senior Counsel submits that the decision of this Court in M/s.Ruchi Soya Industries Ltd Vs. Union Of India and anr. rendered in W.P.No.31090 of 2015 dated 26.04.2021 is to be distinguished on facts particularly in the light of the decision of the Hon'ble Supreme Court in the above said case. 12. The learned Senior Counsel further submits that the respondents are not entitled to proceed further in the light of the definition of claim as in Section 3(6) of the Insolvency and Bankruptcy Code, 2016. 13. It is submitted that the Government is a "corporate debtor" and therefore cannot proceed further as the Corporation Insolvency Resolution Plan (CIRP) has been approved by the NCLT, Mumbai and has extinguished all the claims pre-existing prior to the approval of the aforesaid Corporation Insolvency Resolution Plan (CIRP). 14. It is submitte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... remedy against the Assessment Order that has been permitted to be passed and kept in a sealed cover in terms of the interim order dated 27.12.2018. 20. The learned Junior Standing Counsel drew attention to Section 238 of the Insolvency and Bankruptcy Code, 2016 and submits that there is no bar under the law which inhibits or eclipses the power of the Income Tax Department to continue with the proceedings initiated under Section 148 of the Income Tax Act, 1961. 21. I have considered the arguments advanced by the learned Senior Counsel for the petitioners and the learned Junior Standing Counsel for the respondent Income Tax Department. Arguments in these Writ Petitions are inspired from the decision of the Hon'ble Supreme Court in Ghanashyam Mishra & Sons (P) Ltd. Vs. Edelweiss Asset Reconstruction Co. Ltd., (2021) 9 SCC 657. 22. The Hon'ble Supreme Court in Paragraph No.138 in Ghanashyam Mishra & Sons (P) Ltd. Vs. Edelweiss Asset Reconstruction Co. Ltd., (2021) 9 SCC 657, held as under:- 138. In the foregoing paragraphs, we have held that the 2019 Amendment to Section 31 of the I&B Code is clarificatory and declaratory in nature and therefore will have a retrospective opera ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion (2) of Section 30 is that after the approval of the resolution plan, no surprise claims should be flung on the successful resolution applicant. The dominant purpose is that he should start with fresh slate on the basis of the resolution plan approved." 25. In M/S.Ruchi Soya Industries Ltd. referred to supra, this had given liberty to the petitioner therein to obtain a clarification from the NCLT as to whether the plan included customs duty paid by the petitioner therein on the import under the subject Bill of Entry therein, whereas, in the present case, the documents reveal that the income tax was not under the contemplation of NCLT. 26. Upon admission of petitions under Section 7, there are various important duties and functions entrusted on the Resolution Professional and the Committee of Creditors (COC). The Resolution Professional is required to issue a publication inviting claims from all the stakeholders. He is required to collate information and submit necessary details in the information memorandum. The resolution applicants are required to submit their plans on the basis of the details provided in the information memorandum. The Resolution Plans undergo deep scrutiny ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tment of such rights of the Income Tax Department cannot be countenanced. 34. The provisions of Insolvency and Bankruptcy Code, 2016 (IBC) cannot be interpreted in a manner which is inconsistent with any other law in the time being in force. 35. Therefore, Corporate Insolvency Resolution Plan sanctioned and approved cannot impinge on the rights of the Income Tax Department to pass any fresh Assessment Order under Section 148 read with Sections 143(3) and 147 of the Income Tax Act, 1961. 36. Therefore, the proceedings under the Insolvency and Bankruptcy Code, 2016 (IBC) cannot be pressed into service to dilute the rights of the Income Tax Department under the Income Tax Act, 1961 to re-open the assessment under Section 148 of the Income Tax Act, 1961. 37. In my view, the Income Tax Department was not precluded from reopening the assessment completed under Section 143(3) of the Income Tax Act,1961. 38 Therefore, these Writ Petitions filed by these petitioners have to be dismissed. The Assessment Orders which have been passed pursuant to the interim order dated 27.12.2018 are directed to be given to the respective petitioners by the respondent, within a period of thirty days from ..... 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