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Judgment
Ashok Bhushan, J.
This Appeal has been filed by the Appellant Income Tax Department challenging the order dated 11.10.2023 passed by NCLT, Mumbai Bench-1, by which order the I.A. filed by the Resolution Professional for approval of the Resolution Plan has been allowed and the Resolution Plan in the CIRP of Topworth Steel and Power Private Limited has been approved. The Appellant aggrieved by the approval of the Resolution Plan has come up in this Appeal. Brief facts of the case necessary to be noticed for deciding this appeal are:-
(i) CIRP commenced against the Corporate Debtor - Topworth Steel and Power Private Limited, by order dated 29.01.2020. IRP was appointed by order dated 29.01.2020. Subsequently, vide order dated 14.07.2020, Mr. Sanjay Gupta (Respondent herein) was appointed as Resolution Professional.
(ii) In pursuance of public announcement made by the IRP, claims were filed in the CIRP by Financial Creditors and Operational Creditors. In all 29 CoC meetings were held. Registered Valuers were appointed. According to the report of the Valuers, the average liquidation value of the Corporate Debtor was determined as R.238,15,90,254/-.
(iii) Resolution Plan was submitted. The Resolution Plan came to be approved by the CoC. On basis of which, application was filed being I.A. No.513 of 2022 by the Resolution Professional for approval of the plan which plan stood approved by the impugned order.
Appellants case in the Appeal is that the Appellant being unaware of the CIRP process could not file its claim whereas total demand against the Corporate Debtor is Rs.360,73,33,263/-. It was further submitted that all Assessment Orders were passed ex-parte under Section 144 of the Income Tax Act against the Corporate Debtor since the Corporate Debtor did not participate. In appeal, the Appellant has given the details of various Assessment Orders and date of order passed against the Corporate Debtor.
The perusal of the details given at page 4 and 5 of the appeal indicate that all Assessment Orders which have been passed against the Corporate Debtor are subsequent to the initiation of CIRP against the Corporate Debtor i.e. subsequent to 29.01.2020.
An Additional Affidavit has been filed by the Appellant where two more Assessment Orders for Assessment Years 2007-08 to 2013-14 dated 10.11.2016 and 02.12.2019 has been brought on the record along with the Audit Report under Section 44AB of the Income Tax Act dated 31.10.2019.
Learned counsel for the Appellant submits that the Appellant being not aware of the CIRP could not file claim. It is submitted that the Appellant came to know about the CIRP only after approval of the Resolution Plan, when the Resolution Professional informed about the approval of the Resolution Plan. Appellant Department by email dated 26.10.2023, 27.10.2023 and 30.10.2023 sought information with respect to CIRP.
We have considered the submissions of learned counsel for the Appellant as well as learned counsel appearing for the Respondent.
Learned counsel for the Resolution Professional submitted that since no claim was filed by the Department, the Appellant is not reflected in the list of creditors nor any amount has been allocated to it.
Appellants case itself in the Appeal is that they could not file claim and they come to know about the order only after approval of the Resolution Plan vide order dated 11.10.2023. Learned counsel for the Appellant submits that in the Audit Report dated 31.10.2019, the Corporate Debtor has acknowledged its contingent liability to the Income Tax dues. It is relevant to notice the details which were given in the appeal by the Appellant in Para 7(i). Appellant has given details of different Assessment Orders which according to the Appellant were passed after initiation of CIRP i.e. during moratorium period. Para 7(i), including the table is as follows:
i. The Assessment Orders came to be passed on various dates after the initiation of moratorium period under CIRP for Assessment Years 2008-09, 2009-10, 2012-13, 2013-14, 2014-15, 2015-16, 2016-17, 2017-18, 2018-19, 2019-20 and 2020-21 for the amount aggregating to Rs.20,09,73,58,125/-. The breakup of the assessment details with respect to the relevant Assessment Years has been reproduced herein below:
Sr.
A.Y.
Section
Date of
initiation of proceedings
Date of order
Demand raised (In Rs.)
1.
2008-09
271(1)(c)
03.12.2019
17.02.2022
78,77,262
2.
2009-10
271(1)(c)
13.12.2019
17.02.2022
16,22,678
3.
2012-13
154 r.w.s. 144
08.08.2022
08.08.2022
4,05,34,55,992
4.
2012-13
271(1)(b)
25.12.2019
01.06.2021
20,000
5.
2012-13
271(1)(c)
25.12.2019
01.06.2021
15,89,03,100
6.
2013-14
271(1)(b)
13.04.2022
20.10.2022
20,000
7.
2013-14
271(1)(c)
04.04.2022
21.10.2022
37,25,83,696
8.
2013-14
153C r.w.s. 144
26.03.2021
12.03.2022
75,1477,870
9.
2014-15
271(1)(b)
13.04.2022
20.10.2022
20,000
10.
2014-15
271(1)(c)
04.04.2022
21.10.2022
32,33,18,839
11.
2014-15
153C r.w.s. 144
26.03.2021
12.03.2022
92,46,91,810
12.
2015-16
271(1)(b)
13.04.2022
20.10.2022
20,000
13.
2015-16
271(1)(c)
04.04.2022
21.10.2022
14,07,37,906
14.
2015-16
153C r.w.s. 144
26.03.2021
12.03.2022
29,55,41,100
16.
2016-17
144 r.w.s. 263
02.05.2022
22.07.2022
1,92,56,16,704
17.
2016-17
271(1)(b)
13.04.2022
20.10.2022
20,000
18.
2016-17
271(1)(c)
13.04.2022
21.10.2022
7,92,54,098
19.
2016-17
271(1)(b)
25.07.2022
27.01.2023
10,000
20.
2016-17
271(1)(c)
19.12.2019
09.06.2021
94,37,14,540
21.
2017-18
272A(1)(d)
13.04.2022
20.10.2022
20,000
22.
2017-18
270A
04.04.2022
21.10.2022
1,77,66,95,920
23.
2017-18
153C r.w.s. 144
26.03.2021
12.03.2022
1,52,91,73,080
25.
2018-19
272A(1)(d)
13.04.2022
20.10.2022
20,000
26.
2018-19
270A
04.04.2022
21.10.2022
37,53,36,556
27.
2018-19
272A(1)(d)
13.04.2022
12.10.2023
20,000
28.
2018-19
153C r.w.s. 144
26.03.2021
12.03.2022
30,12,59,670
30.
2018-19
234D
26.03.2021
12.03.2022
1,28,631
31.
2019-20
272A(1)(d)
13.04.2022
20.10.2022
20,000
32.
2019-20
270A
04.04.2022
21.10.2022
2,97,05,98,266
33.
2019-20
144
26.03.2021
12.03.2022
1,79,48,92,850
35.
2019-20
234D
26.03.2021
12.03.2022
12,697
36.
2020-21
143 1a
20.12.2021
20.12.2021
1,37,02,74,860
TOTAL
20,09,73,58,125
When we look into the aforesaid table, it is clear that all Assessment Orders were passed subsequent to initiation of CIRP and initiation of moratorium, which is an admitted fact.
In facts of the present case, when no claim was filed and Appellant itself submits that Assessment Orders were passed after enforcement of moratorium, we see no ground to interfere with the order passed by the Adjudicating Authority approving the Resolution Plan. We, thus, do not find any ground to interfere with the impugned order. Appeal is dismissed.