TMI Blog2024 (5) TMI 42X X X X Extracts X X X X X X X X Extracts X X X X ..... y, guarantors and other stakeholders. There are no hesitation in holding that the order under Section 73 (Annexure P1) issued by respondent No. 1 in the three writ petitions is totally without jurisdiction and the same therefore deserves to be and are accordingly set aside/quashed. The writ petitions are allowed. - HONOURABLE SRI JUSTICE P. SAM KOSHY AND HONOURABLE SRI JUSTICE N. TUKARAMJI For the Petitioners : Mr. karan Talwar, Learned Counsel. For the Respondent Nos. 1 to 3 : Mr. K. Raji Reddy, learned Senior Standing Counsel for Income Tax Department Appearing. For Respondent No. 4 : Mr. K. Arvind Kumar, Central Government Counsel Appearing. COMMON ORDER (PER HON BLE SRI JUSTICE P. SAM KOSHY) Since all three writ petitions are in respect of the same assessees/petitioners, the issue involved also being identical in nature and the grounds of challenge also being identical, we proceed to decide the three writ petitions by this common order. 2. Heard Mr. karan Talwar, learned counsel for the petitioners, Mr. K. Raji Reddy, learned Senior Standing Counsel for Income Tax Department appearing for respondent Nos. 1 to 3 and Mr. K. Arvind Kumar, Central Government Counsel appearing for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aim of Rs. 1,01,070/- and the said claim was put forth before the NCLT which was ordered to be paid by the liquidator. Apart from the aforesaid Rs. 1,01,070/- raised from the department, there was no other claim raised by any of the departments which are pending before any of the authorities concerned and as such all other claims if at all those which are now been raised by the departments which are under challenge in these writ petitions all would stand automatically extinguished in terms of the order of the NCLT and it is for this reason that the instant writ petitions have been filed. 6. Learned counsel for the petitioners referred to the decision of this Court in W.P. No. 23436 of 2006 decided on 23.01.2024 which arose from an approval of a resolution plan by the NCLT and prayed for applying the same principle in the instant cases also. Apart from the said judgment, he also relied upon a recent decision of the Gujarat High Court on the said subject in the case of KRBL Limited v. State of Gujarat R/Special Civil Application No. 19804 of 2022 decided on 22.09.2023 wherein the Gujarat High Court while allowing the petition, set aside the order passed by the department in the said ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... against, or in relation to or in connection with the Corporate Debtor (other than against the erstwhile promoters or former members of the management of the Corporate Debtor), pending or threatened, present or future, in relation any period prior to the Transfer Date shall not be continued and/or instituted in future against the Corporate Debtor/Applicant or their successors or assignees; Granted. Since the applicant should not be saddled with the liability prior to the issuance of sale certificate. 9. In the light of the aforesaid order of the NCLT, it would now be relevant to take note of the decision of the Hon ble Supreme Court in the case of Ghanashyam Mishra and Sons Private Limited v. Edelweiss Asset Reconstruction Company Limited (2021) 9 SCC 657 which reads as under: 65. Bare reading of Section 31 of the I B Code would also make it abundantly clear, that once the resolution plan is approved by the Adjudicating Authority, after it is 61 satisfied, that that the resolution plan as approved by CoC meets the requirements as referred to in sub-section (2) of Section 30, it shall be binding on the Corporate Debtor and its employees, members, creditors, guarantors and other stake ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vernment and statutory authorities are also require to be contained in the information memorandum. So also the details regarding the number of workers and employees and liabilities of the Corporate Debtor towards them are required to be contained in the information memorandum. 68. All these details are required to be contained in the information memorandum so that the resolution applicant is aware, as to what are the liabilities, that he may have to face and provide for a plan, which apart from satisfying a part of such liabilities would also ensure, that the Corporate Debtor is revived and made a running establishment. The legislative intent of making the resolution plan binding on all the stakeholders after it gets 64 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 the should start with fresh slate on the basis of the resolution plan approved. 69. This aspect has been aptly explained by th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Central Government in respect of the period prior to the approval of resolution plan by NCLT, will have to be considered. 73. Vide Section 7 of Act No. 26 of 2019 (vide S.O. 2953 (E), dated 16.8.2019 w.e.f. 16.8.2019), the following words have been inserted in Section 31 of the I B Code. including the Central Government, any State Government or any local authority to whom a debt in respect of the payment of dues arising under any law for the time being in force, such as authorities to whom statutory dues are owed 74. As such, with respect to the proceedings, which arise after 16.8.2019, there will be no difficulty. After the 67 amendment, any debt in respect of the payment of dues arising under any law for the time being in force including the ones owed to the Central Government, any State Government or any local authority, which does not form a part of the approved resolution plan, shall stand extinguished. 79. In the Rajya Sabha debates, on 29.7.2019, when the Bill for amending I B Code came up for discussion, there were certain issues raised by certain Members, the Hon ble Finance Minister stated thus: IBC has actually an overriding effect. For instance, you asked whether I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e that would relieve the petitioner of the liability to pay tax dues. In light of the decision in the case of Ghanshayam Mishra and Sons Private Limited (supra), the petitioner was entitled to a clean slate. 5.20 Even otherwise as per Section 100 of the Transfer of Property Act, a charge cannot be enforced against any property in the hands of a person to whom such property has been transferred for consideration and without notice of such charge. The State moved in to get a charge registered on 15.12.2022 much later. 6. For the aforesaid reasons, petition is allowed. The order dated 05.01.2022 is set aside. 11. Taking into consideration the authoritative decision of the Hon ble Supreme Court in the case of Ghanashyam Mishra and Sons Private Limited (supra) and also the view taken by the Gujarat High Court in the case of KRBL Limited (supra) and the recent decision of this Court in W.P. No. 23436 of 2006, we have no hesitation in holding that the order under Section 73 (Annexure P1) issued by respondent No. 1 in the three writ petitions is totally without jurisdiction and the same therefore deserves to be and are accordingly set aside/quashed. 12. In the result, the writ petitions ar ..... X X X X Extracts X X X X X X X X Extracts X X X X
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