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TMI Blog2022 (7) TMI 690X X X X Extracts X X X X X X X X Extracts X X X X ..... For the Assessee : Shri Rishabh Jaisani a/w Shri Jitendra Sanghvi, Shri Amit Khatiwala For the Revenue : Ms. Samruddhi D. Hande, Sr. AR ORDER PER BENCH The present cross appeals have been filed by either parties challenging the orders passed under section 250 of the Income Tax Act, 1961 ("the Act") by the learned Commissioner of Income Tax (Appeals), for the assessment years 2009-10, 2010-11, 2011-12, 2013-14, 2014-15 and 2015-16. 2. During the course of hearing, at the outset, we noticed that in case of the assessee, the matter is pending before the Insolvency Professional in terms of The Insolvency and Bankruptcy Code, 2016 ("the Code") and moratorium period has been declared as per section 14 of the Code. We further noticed that a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e provisions of section 14 of the Code, institution of a Suit or continuation of pending Suit or proceedings against the Corporate Debtor including execution of any judgment, decree, or order in any Court of law, Tribunal, Arbitration Panel or other authorities, shall be prohibited during the moratorium period. The period of moratorium shall have the effect from the date of such order till the completion of CIRP; or if, during the CIRP period, Hon‟ble NCLT approves the resolution plan under section 31(1) or passes an order for liquidation of corporate debtor under section 33 of the Code, moratorium shall cease to have effect on date of such order. It has not been disputed by either of the parties that moratorium period is still contin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing suits or proceedings against corporate debtors. This legal principle should have been borne in mind by the assessing officer before he proceeded to pass the assessment order. Therefore, we are of the clear view that the assessment order dated 30th March, 2022 has to be set aside and the matter has to be restored to the file of the assessing officer and the matter shall be kept in abeyance till the completion of the insolvency resolution proceedings." 7. From the careful perusal of the aforesaid decision, we find that the issue before the Hon‟ble Calcutta High Court was regarding the assessment order passed during the continuation of moratorium period. Thus, in the aforesaid decision, Hon‟ble Calcutta High Court dealt with t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gment, decree or order in any court of law, tribunal, arbitration panel or other authority." That the Code will prevail over all other statutes inconsistent therewith has been explained in the recent decision dated 31 August, 2017 of the Supreme Court in Civil Appeal No. 8337-8338/2017 (Innoventive Industries Ltd. v. ICICI Bank). 3. In the instant case, the National Company Law Tribunal (NCLT) [which by virtue of Section 5(1) of the Code is the AA] has by its order dated 18th July 2017 admitted the petition under Section 7 of the Code filed by the State Bank of India against the Respondent Assessee and prohibited, inter alia, "the institution of suits or continuation of pending suits or proceedings against the Respondent. This would include ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h is prohibited under section 14 of the Code. It is further pertinent to note that under section 178(6) of the Act, as amended w.e.f. 01/11/2016, the Code shall have overriding effect. 9. We further find that appeal by the assessee have been filed by the Director of the assessee company, which after initiation of CIRP has become functus officio. We further find that the Interim Resolution Professional / Resolution Professional has not been impleaded as a party in the appeals before us by filing revised Form No. 36. Similarly, in the appeal filed by the Revenue also revised Form No. 36 including the Interim Resolution Professional / Resolution Professional has not been filed. Once the insolvency proceedings commenced under the Code, all the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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