TMI Blog2022 (6) TMI 1074X X X X Extracts X X X X X X X X Extracts X X X X ..... efore, 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. 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. Income Tax Department was not precluded from reopening the assessment completed under Section 143(3) of the Income Tax Act,1961. 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 the date of receipt of a copy of this order - If the petitioners are so aggrieved by such of those Assessment Orders, the petitioners have to work out their Appellate remedy before the Commissioner of Income Tax (Appeals) under Section 246A of the Income Tax Act, 1961. - W.P.Nos.3 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 018 bearing PAN: AAACR5136R and the order dated 17.12.2018 bearing PAN:AAACR5136R/AY 2013-14 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 2013-14. 4 34649/2018 For issuance of a Writ of Certiorarified Mandamus, to call for the records comprised in the impugned Notice dated 26.03.2018 bearing PAN:AAACS4449J, as also letter dated 15.11.2018 bearing PAN: AAACS4449J / Company / CC I(1)/2018-19, the notice dated 27.09.2018 bearing PAN: AAACS4449J and the order dated 17.12.2018 bearing PAN: AAACS4449J/AY 2013-14 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 2013-14. 5 34671/2018 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 assailed. 4. The short point that arises for consideration in these Writ Petition is whether the proceeding under Section 148 of the Income Tax Ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r, pending or threatened, present or future in relation to any period prior to the Approval Date, or arising on account of implementation of this Resolution Plan shall stand withdrawn and dismissed and all liabilities and obligations therefore, Whether or not set out in the balance sheets of the Corportate Debtor or the profit and loss account statements of the Corporate Debtor will be deemed to have 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 con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o be published in one English and one regional language newspaper with wide circulation at the location of the registered office and corporate office of the Corporate Debtor. Perusal of the record would reveal, that the notice was published in Business Standard and Ananda Bazar Patrika newspapers of the Kolkata edition, which have wide circulation in Ranchi. The corporate office of the Corporate Debtor is at Kolkata whereas its registered office is at Ranchi. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... learned Senior Counsel for the petitioner, has itself answered the issue against the petitioner in as much as the amount which was due had crystalized before the Resolution Plan was approved. 19. It is submitted that in the facts of the present case, only notice under Section 148 of the Income Tax Act, 1961 has been issued and the objections of the petitioner for reopening of the assessment had been overruled by a speaking order. It is also submitted that the petitioners have an alternate 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ect of such dues for the period prior to the date on which the adjudicating authority grants its approval under Section 31 could be continued. 24. In Ghanashyam Mishra Sons (P) Ltd. Vs. Edelweiss Asset Reconstruction Co. Ltd. , (2021) 9 SCC 657, the Hon ble Supreme Court also held that The legislative intent of making the resolution plan binding on all the stakeholders after it gets the seal of approval from the adjudicating authority upon its satisfaction, that the resolution plan approved by CoC meets the requirement as referred to in sub-section (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 contemp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Insolvency Resolution Proceedings initiated by the petitioners. 32. Since the proceedings under the Code were initiated by the petitioners few days prior to the initiation of the proceedings under Section 148 of the Income Tax Act, 1961, it was incumbent for the petitioners to have ensured proper notice to the Income Tax Department and obtained appropriate concession in Corporate Insolvency Resolution Plan. 33. That apart, claims of the Income Tax Department were not considered by the NCLT, Mumbai, while approving the Resolution Plan and therefore the question of abetment 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 d ..... X X X X Extracts X X X X X X X X Extracts X X X X
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