TMI Blog2023 (2) TMI 280X X X X Extracts X X X X X X X X Extracts X X X X ..... is not even 15% of the outstanding demand. The Respondent was asked to pay the outstanding demand vide letter no. 674 dated 12.03.2019. However, the Respondent wrote to the Appellants for extinguishing all claims against them relating to the period prior to the date of order of the NCLT since as per the approved resolution plan at clause 12.1 no other amount was to be paid to the Operational Creditors. The Appellants filed an application for review of the order passed by the NCLT dated 20.09.2018 with necessary directions to the Resolution Professional for submission of the revised resolution plan incorporating the entire amount alleged to be due to the Appellants. Subsequently, the NCLT vide its order dated 22.10.2019 stated that since the Resolution Professional intimated the Appellants that the demand after finalization of appeal by CIT(A) would be payable by the new promoter, such written intimation of the Resolution Professional is to be read with the new resolution plan and the demand of the Appellants is duly considered and the Appellants have a right to lay its claim before the new promoter of the Respondent Company. The Respondent were examined and rebuttal letter bear ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... No. 31 of 2020 filed by the Respondent herein /Corporate Debtor- Assam Company India Ltd. prayed for setting aside the attachment orders issued by the Income Tax Department. By which the Adjudicating Authority passed the following orders : 20 . Since the Respondents have filed its further claim by issuing attachment notices dated 28.01.2020 under Section 226 (3) of the Income Tax Act, 1961 attaching a sum of Rs. 6,71,05,730.00 towards Income Tax and Rs. 1,70,53,311.00 towards interest for the assessment year 2014-15 to the Banker of the applicant i.e. to the Chief Manager/Principal Officer, Allahabad Bank, Dibrugarh Bench i.e. after 15 months of the approval of the Resolution Plan, their claim at this stage cannot be entertained. Prayer made by the Resolution Applicant in this I.A. No. 10 of 2020 [in CPIB No. 20/GB/2017] is accepted to the following extent : (1) Attachment orders issued by the Income Tax Department are hereby set aside. (2) Company can operate the Bank Account without any obstructions from the Income Tax Department. (3) The Resolution Applicant / the Petitioner is hereby directed to strictly implement the Resolution Plan as approved in time w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... liability, the payable amount is also not certain at present (it may increase or decrease upon the judgment) and also involved uncertainty as per the provisions of applicable laws and accounting standards. The matter will be finalized after the final order is given by the CIT, so in that circumstances we cannot admit your claim because if we admit your claim then there is no validity of filing of appeal with CIT. We have to wait for the final order of the CIT (Appeals). We also want to intimate you that this is a statutory liability and I the CIT also in the future demanded the same then in that case if it all the resolution process completes then the new promoter of ACIL has to pay the liability to the concern department. iii) It was subsequently intimated by the Resolution Professional vide email dated 08.08.2018 that the National Company Law Tribunal, Guwahati Bench may consider payment of Rs 1,97,92,084/- being 15% of the outstanding dues owed to the Appellants since the Respondent had filed petition for stay of demand before the Assessing Officer. Further, the balance amount which is considered as contingent liability by the Respondent in the audited accounts for the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... demand of the Appellants is duly considered and the Appellants have a right to lay its claim before the new promoter of the Respondent Company. v) The Appellants vide letter bearing no. ITBA/COM/F/17/2019- 20/1021317132(1) dated 29.11.2019 wrote to the Respondent for payment of outstanding dues along with interest under Section 220(2) of the Income Tax Act, 1961. In response to this, the Respondent stated that the demands of the Appellants are premature as it is pending with CIT(A) for Assessment Year 2013-14 and with the ITAT, Guwahati Bench for the Assessment Year 2014-15. Further, the Respondent also stated that the demand for Assessment Year 2014-15 has been stayed by the Tribunal vide its order dated 14.06.2019 [Annexure A/7 (Colly)]. The contentions of the Respondent were examined and rebuttal letter bearing no ITBA/COM/F/17/2019-20/1024086061(1) dated 21.01.2020 was sent to the Respondent stating that the stay granted by the Appellate Authority had since expired on 13.12.2019 and therefore, the Respondent was requested to pay the outstanding demand for the Assessment Year 2014-15 immediately and intimate within 7 days. vi) Since there was no compliance of the notice s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... st appeal these dues would be payable by the new promoter. The Impugned Order also fails to take into consideration that these dues are of the Revenue Department and if not paid the Appellants would be in great difficulty and grave injustice would be caused to the Revenue Department and a huge loss to the public exchequer. The NCLT, Guwahati vide its order dated 22.10.2019 stated that since the IRP intimated the department that the demand after finalization of appeal by CIT(A) would be payable by the new promoter, such written intimation of the IRP is to be read with the new resolution plan and the demand of the Appellants is duly considered and the Appellants have a right to lay its claim before the new promoter of the Respondent Company. 4. Further, the Impugned Order has erred in stating that the Appellants claims cannot be entertained after 15 months of the approval of the Resolution Plan. It is submitted that the Appellants have not made any fresh claims but has laid its right to such claims which were made before the NCLT, Guwahati Bench and which has been duly considered by the Bench. 5. The Ld. Counsel for the Appellants during the course of argument and in his memo o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ,23,691 which is not even 15% of the outstanding demand. The Respondent was asked to pay the outstanding demand vide letter no. 674 dated 12.03.2019. However, the Respondent wrote to the Appellants for extinguishing all claims against them relating to the period prior to the date of order of the Hon ble Bench of NCLT since as per the approved resolution plan at clause 12.1 no other amount was to be paid to the operational creditors. In view of the above, the Appellants filed an application for review of the order passed by the NCLT dated 20.09.2018 with necessary directions to the Resolution Professional for submission of the revised resolution plan incorporating the entire amount alleged to be due to the Appellants. Subsequently, the NCLT vide its order dated 22.10.2019 stated that since the Resolution Professional intimated the Appellants that the demand after finalization of appeal by CIT(A) would be payable by the new promoter, such written intimation of the Resolution Professional is to be read with the new resolution plan and the demand of the Appellants is duly considered and the Appellants have a right to lay its claim before the new promoter of the Respondent Company. Ther ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... heir dues. If the Respondent was aggrieved by the order of the NCLT dated 22.10.2019 he had the remedy to appeal before this Appellate Tribunal within 30 days of passing of the order which he failed to do. Thus, the order dated 22.10.2019 has attained finality and cannot be challenged in the same forum. 10. The Ld. Counsel for the Appellants also placed reliance on the judgment of the Hon ble Supreme Court in the case of State Tax Officer (1) Vs. Rainbow Papers Limited, Civil Appeal No. 1661 of 2020 dated 06th September, 2022 wherein Hon ble Supreme Court held as hereunder: 41. Section 31 of the IBC which provides for approval of a Resolution Plan by the Adjudicating Authority makes it clear that the Adjudicating Authority can approve the Resolution Plan only upon satisfaction that the Resolution Plan, as approved by the Committee of Creditors (CoC), meets the requirements of Section 30(2) of the IBC. When the Resolution Plan does not meet the requirements of Section 30(2), the same cannot be approved. 42. In Ghanshyam Mishra Sons (P) Ltd. v. Edelweiss Asset Reconstruction Co. Ltd., cited by the learned Solicitor General, this Court observed :- 64. It could t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on RP to examine that the resolution plan does not contravene any of the provisions of the law for the time being in force . 43. The learned Solicitor General rightly argued that when a grievance was made before the Adjudicating Authority with regard to a Resolution Plan, the Adjudicating Authority was required to examine if the Resolution Plan met the requirements of Section 30(2) of the IBC. The word satisfied used in Section 31(1) contemplates a duty on the Adjudicating Authority to examine the Resolution Plan The Resolution Plan cannot be approved by way of an empty formality. 44. Section 61(3) of the IBC which stipulated the grounds for challenge to the approval of a Resolution Plan, is set out hereinbelow for convenience :- 61. Appeals and Appellate Authority.-(1) (2) (3) An appeal against an order approving a resolution plan under Section 31 may be filed on the following grounds, namely- (i) the approved resolution plan is in contravention of the provisions of any law for the time being in force; (ii) there has been material irregularity in exercise of the powers by the resolution professional during the corporate insolvency resol ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eriod for completion of CIRP. Section 31(1) provides that the adjudicating authority shall approve the resolution plan if it is satisfied that it complies with the requirements set out under Section 30(2) IBC. Essentially, the adjudicating authority functions as a check on the role of the RP to ensure compliance with Section 30(2) IBC and satisfies itself that the plan approved by the CoC can be effectively implemented as provided under the proviso to Section 31(1) IBC. Once the resolution plan is approved by the adjudicating authority, it becomes binding on the corporate debtor and its employees, members, creditors, guarantors and other stakeholders involved in the resolution plan... . 48. A resolution plan which does not meet the requirements of Sub-Section (2) of Section 30 of the IBC, would be invalid and not binding on the Central Government, any State Government, any statutory or other authority, any financial creditor, or other creditor to whom a debt in respect of dues arising under any law for the time being in force is owed. Such a resolution plan would not bind the State when there are outstanding statutory dues of a Corporate Debtor. 49. Section 31(1) of the I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l creditors, cannot secure their own dues at the cost of statutory dues owed to any Government or Governmental Authority or for that matter, any other dues. 55. In our considered view, the NCLAT clearly erred in its observation that Section 53 of the IBC over-rides Section 48 of the GVAT Act. Section 53 of the IBC begins with a non-obstante clause which reads :- Not withstanding anything to the contrary contained in any law enacted by the Parliament or any State Legislature for the time being in force, the proceeds from the sale of the liquidation assets shall be distributed in the following order of priority........... 56. Section 48 of the GVAT Act is not contrary to or inconsistent with Section 53 or any other provisions of the IBC. Under Section 53(1)(b)(ii), the debts owed to a secured creditor, which would include the State under the GVAT Act, are to rank equally with other specified debts including debts on account of workman s dues for a period of 24 months preceding the liquidation commencement date. 57. As observed above, the State is a secured creditor under the GVAT Act. Section 3(30) of the IBC defines secured creditor to mean a creditor in favour ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and whether or not notified to or claimed against ACIL) of all Government Authorities (including in relation to Taxes and all other dues and statutory payments to any Government Authority) relating to the period prior to the Effective Date, shall stand fully and finally discharged and settled. In this regard referred following judgments: Essar Steel India Limited Committee of Creditors v. Satish Kumar Gupta, (2020) 8 SCC 531 : 2019 SCC OnLine 1478 Page 616. Ghanashyam Mishra Sons (P) Ltd. v. Edelweiss Asset Reconstruction Co. Ltd., (2021) 9 SCC 657; (2021) 4 SCC (Civ) 638 : 2021 SCC OnLine SC 313 Page 699. Manish Kumar v. Union of India (2021) 5 SCC 1 : 2021 SCC OnLine SC 30 Page 161. Department of Goods Service Tax, Deputy Commissioner of CGST, Kadi v. Technovaa Plastic Industries Pvt. Ltd. and Anr 2021 OnLine NCLAT 499. 13. It is further submitted that the Resolution Plan duly approved and implemented cannot be modified. The law is well laid down that once the resolution plan is duly approved by the Committee of Creditors and the Adjudicating Authority, it cannot be altered or modified. In the present case the Appellants had filed its claim for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Ltd., 2019 SCC OnLine SC 73. 16. It is further submitted that the Appellate Tribunal has no inherent power to review. A mere perusal of the NCLAT Rule, 2016 unerringly point out that there is no express Rule for Review . There can be no two opinions of a prime fact that Rule 11 of NCLAT Rules, 2016 is not a substantive Rule which confers any power or jurisdiction on the Tribunal . Kapra Mazdor Esta Union v. Brla Cotton Spg. And Wvg. Mills Ltd. (2005) 13 SCC 777 : 2006 SCC (L S) 1635. Kuntesh Gupta v. Hinu Kanya Mahavidyalaya (1987) 4 SCC 525 : 1987 SCC (L S) 491. Deepakk Kumar v. M/s Phoenix ARC Pvt. Ltd., Company Appeal (AT) (Insolvency) No. 848 of 2019. Swiss Ribbons Pvt. Ltd. v. Union of India Ors. (2019 SCC OnLine SC 73). 17. It is further submitted that the Appellant relied upon the judgment passed by the Hon ble Supreme Court in the case of State Tax Officer (1) Vs. Rainbow Papers Limited, Civil Appeal No. 1661 of 2020 dated 06th September, 2022 which is not maintainable since the statutory authority was not paid any amount through the resolution plan whereas in the instant case Rs. 1,97,92,084/- was accepted and subsequently Rs. 1,20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ting the entire amount alleged to be due to the Appellants. Subsequently, the NCLT vide its order dated 22.10.2019 stated that since the Resolution Professional intimated the Appellants that the demand after finalization of appeal by CIT(A) would be payable by the new promoter, such written intimation of the Resolution Professional is to be read with the new resolution plan and the demand of the Appellants is duly considered and the Appellants have a right to lay its claim before the new promoter of the Respondent Company. Thereafter, the Appellants vide letter bearing no. ITBA/COM/F/17/2019-20/1021317132(1) dated 29.11.2019 (Annexure A/7) wrote to the Respondent for payment of outstanding dues along with interest under Section 220(2) of the Income Tax Act, 1961. Further, the Respondent stated that the demands of the Appellants are premature as it is pending with CIT(A) for Assessment year 2013-14 and with the ITAT, Guwahati Bench for the Assessment Year 2014-15. Further, the Respondent also stated that the demand for Assessment Year 2014-15 has been stayed by the Tribunal vide its order dated 14.06.2019. We also observed that the Respondent were examined and rebuttal letter bea ..... X X X X Extracts X X X X X X X X Extracts X X X X
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