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TMI Blog2024 (5) TMI 1301X X X X Extracts X X X X X X X X Extracts X X X X ..... ereinafter referred to as an 'Act'. On account of assessee's failure to get its accounts audited u/s. 44AB of the Act. 2. The brief facts leading to the appeal state that the assessee filed its return of income electronically on 28.11.2017 for the Assessment year 2017-18, declaring a total loss of Rs. 47,06,21,218/-. The case was selected for scrutiny under CASS. The assessment was completed Under Section 143(3) of the Act at a loss of Rs. 45267456/- on 25.12.2018. Authorities under the Act learnt from the website of ministry of Corporate affairs that the assessee was under liquidation before the NCLT during the course of assessment proceedings. It was also learnt that assessee's turnover was Rs. 2481251472/- for the relevant Assessmen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d by the tribunal, Learned Representative for the department appeared and participated in the hearing of the case. 5. We have gone through the materials available on record and Heard learned representatives for both the parties. 6. The following points are to be determined under appeal. I. Whether, the provisions of the IBC code 2016 would prevail over the Income Tax Act 1961, and if so to what extent? II. Whether learned CIT(A) erred in not adjudicating the issue on merit, merely because of the pendency of the liquidation process against the assessee corporate debtor? III. Whether assessee is entitled to any relief? 7. At the very outset, it is pertinent to mention that all the Income Tax Authorities had knowledge of the fact that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by or against the company, whether such suit or proceeding has been instituted or is instituted. A careful examination of these provisions of law makes it clear that once a winding-up order is made or the official liquidator is appointed as provisional liquidator, no proceedings can continue or be instituted against the company without the permission of the court.........." 9. Learned Representative for the revenue department has submitted that no leave of the adjudicating authority is necessary to be obtained by the Revenue Department in respect of assessment proceedings. He has referred Official Liquidator, High Court,...Vs Commissioner of Income Tax, West Bengal, AIR 1970 CAL349, in support of his arguments. The relevant para 49a read a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Provision of this Code to override other laws.- The Provisions of this Code shall have effect, notwithstanding anything inconsistent therewith contained in any other law for the time being in force or any instrument having effect by virtue of any such law." 11. The non-obstante clause in the above referred Section 238 clarifies that the IBC Code shall have the effect of overriding the provisions of other laws. Section 178 of the Act makes provision in respect of the 'company in liquidation'. The relevant Section 178(6) of the Income Tax Act reads as under: "(1)................... (2)..................... (3)...................... (4)...................... (5)....................... (6) The provisions of this section shall have ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ues at its own during the period of moratorium in violation of Section 14 or 33(5) of the IBC. The Income Tax Authorities are like any other creditor, may stake their claim before liquidator in the statutory limitation period provided under the IBC. The first point is accordingly determined in positive in favour of the assessee. 14. Secondly, in view of the findings given at point no.1, it is easily concluded that Learned CIT(A) has erred in not adjudicating the matter which was with respect to the determination of tax dues only, more so, when the liquidator, himself, was pursuing the matter. The second point is accordingly determined in positive in favour of the assessee and against the revenue department. 15. Now coming thirdly and last ..... X X X X Extracts X X X X X X X X Extracts X X X X
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