TMI Blog2023 (1) TMI 256X X X X Extracts X X X X X X X X Extracts X X X X ..... he Scheme, after the Form No.1 is processed the Designated Committee was to scrutinize the same and issue the Final Form No.3 determining the settlement amount which the applicant was required to deposit within a period of one month from the date of receipt of the final determination Form No.3. That the appellant was issued the Form No.3 on 25.02.2020 and was required to pay the settlement dues on or before 25.03.2020. However, in view of the COVID-19 Pandemic the Government extended the time upto 30.06.2020. Therefore, the appellant was required to deposit the settlement dues on or before 30.06.2020. However, even before the Scheme, 2019 came to be introduced, the appellant was subjected to proceedings under the IBC which commenced on 11.09.2018 when the NCLT admitted the application under Section 7 of the IBC. Thus, the moratorium under the IBC commenced on 11.09.2018. The CoC approved the Resolution Plan on 04.06.2019, and the same came to be approved by the NCLT by Order dated 24.07.2020. Therefore, the moratorium under the IBC continued upto 24.07.2020. Under the provisions of the IBC no payment could have been made during the period of moratorium. Therefore, the appellant w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r. Karan Sachdev, Adv. Mr. Pranav Mundra, Adv. Ms. Bhavya Shukla, Adv. Ms. Falguni Gupta, Adv. For the Respondent : Mr. Vikramjit Banerji, ASG Mr. M.K.Maroria AOR Ms. Niranjana Singh Adv Mr. Nachiketa Joshi Adv Mr. Rajan Kumar Choursia Adv Mr. Mohd Akhil Adv Mr. P.V. Yogeswaran Adv. Mr. Siddhartha Sinha, Adv. Mr. Shivam Singhania, Adv. Mr. Raman Yadav, Adv. JUDGMENT M. R. SHAH, J. 1. Feeling aggrieved and dissatisfied with the impugned judgment and order dated 24.06.2021 passed by the High Court of Judicature at Allahabad in Writ Tax No.328 of 2021 by which the High Court has dismissed the said writ petition preferred by the appellant herein seeking direction to the respondents for consideration of the case of the petitioner under the scheme Sabka Vishwas (Legacy Dispute Resolution) Scheme, 2019 (hereinafter referred to as the Scheme of 2019 ), the original writ petitioner has preferred the present appeal. 2. The facts leading to the present appeal in nutshell are as under: That the appellant company registered with the Service Tax Department was a company engaged in providing hospitality services. The Service Tax Department conducted investigations as t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ceedings on 24.07.2020. Subsequent to the acceptance of the Resolution Plan by the NCLT, the appellant wrote to the successful resolution applicant and the Commissioner, CGST and Central Excise, Agra intimating them that the resolution process under the IBC had come to an end and that the appellant is ready and willing to make full amount of Rs.1,24,28,500/- as ascertained by the Designated Committee in Form No.3. Vide communication dated 09.10.2020 to the Assistant Commissioner, the appellant explained that the settlement amount under the Scheme, 2019 could not be paid by the appellant before 30.06.2020 due to the legal moratorium imposed upon the company and sought permission to pay the due amount. The Joint Commissioner, Agra vide letter dated 19.10.2020 intimated the appellant that the last date for payment under the Scheme was 30.06.2020, which could not be extended. Consequently, the request of the appellant was rejected. Since the appellant could not obtain permission for payment of the dues post the lifting of the moratorium, the appellant approached the High Court by way of Writ Tax No.328 of 2021. By the impugned judgment and order the High Court has dismissed the said wr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me, however by manual processing. It is submitted that therefore the reasoning given by the Hon ble High Court that the Designated Committees are not in existence after 30.06.2020 and therefore the appellant is not entitled to any relief, may not be accepted, as even after 30.06.2020 and even as per the instructions issued by the CBEC, the respective Designated Committees continued to function and process the declarations manually. 3.3 It is further submitted by learned counsel appearing on behalf of the appellant that in the instant case the Hon ble High Court has not properly appreciated the cause for which the appellant could not deposit the amount under the Scheme 2019 on or before 30.06.2020. It is submitted that at the relevant time and more particularly at the time when the Form No.3 was issued and even during the period under the Scheme 2019, the appellant was subjected to the rigor of the provisions of the IBC by virtue of the moratorium period which ended on 24.07.2020 when the NCLT approved the Resolution Plan. It is submitted that in the instant case, the appellant bonafidely could not deposit the settlement due, on or before 30.06.2020 on account of operation of law ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the appellant could not make the payment due to legal disability and no one can be expected to do the impossible. Reliance is placed on the decisions of this Court in the case of Gyanichand vs. State of Andhra Pradesh, (2016) 15 SCC 164 (para 11) and Calcutta Iron Merchants Association vs. Commissioner of Commercial Taxes, (1997) 8 SCC 42 (para 5). 3.6 It is submitted that the appellant cannot be prejudiced and/or made to suffer for no fault of the appellant. Reliance is placed on the decision of this Court in Anmol Kumar Tiwari Ors. vs. State of Jharkhand reported in (2021) 5 SCC 424. Making the above submissions it is prayed to allow the present appeal and direct the respondents to appropriate the payment of Rs.1,24,28,500/- towards settlement dues under the Scheme 2019 and that discharge certificate be issued to the appellant accordingly. 4. While opposing the present appeal, Shri Vikramjit Banerji, learned ASG appearing on behalf of the Union of India has vehemently submitted that in the facts and circumstances of the case no error has been committed by the Hon ble High Court in dismissing the writ petition and refusing to direct the respondents to accept the payment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 11.09.2018. The CoC approved the Resolution Plan on 04.06.2019, and the same came to be approved by the NCLT by Order dated 24.07.2020. Therefore, the moratorium under the IBC continued upto 24.07.2020. Under the provisions of the IBC no payment could have been made during the period of moratorium. Therefore, the appellant was statutorily restrained/debarred from making any payment. There was statutory disability on the part of the appellant in making the payment during the moratorium. If the appellant had made any payment during the period of moratorium, the appellant would have committed breach of the provisions of the IBC. Therefore, it was impossible for the appellant to make any payment during the period of moratorium. Immediately on the moratorium coming to an end, the appellant Resolution Professional / the successful Resolution applicant approached the authority requesting them to accept the settlement amount under the Scheme, 2019 as per the Form No.3. Such request has been rejected by the Commissioner on the rejection has been confirmed by the High Court. 7. Therefore, the short question which is posed for consideration before this Court is, whether, when it was impo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s not a case where the appellant did not make any application within the stipulated time under the Scheme. This is not a case where the Form No.3 determining the settlement amount was not issued during the validity of the Scheme. It is not a case where the appellant deliberately did not deposit the settlement amount and/or there was any negligence on the part of the appellant in not depositing the settlement amount within the stipulated time. As observed hereinabove it is a case where the appellant was unable to make the payment due to the legal impediment and the bar to make the payment during the period of moratorium in view of the provisions of the IBC. In a given case it may happen that a person who has applied under the Scheme and who was supposed to make payment on or before 30.06.2020, became seriously ill on 29.06.2020 and there was nobody to look after his affairs and therefore he could not deposit the amount; such inability was beyond his control and thereafter, immediately on getting out of sickness he tried to deposit the amount and/or approached the Court - can the Court close its eyes and say that though there may be valid reasons and/or causes for that person s inabi ..... 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