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Judgment
O R D E R
Per: Justice Rakesh Kumar Jain: (Oral)
11.04.2023 This Appeal is directed against the order dated 21.06.2021 by which an Application filed by the Resolution Professional under Section 30(6) of the Insolvency and Bankruptcy Code, 2016 (in short ‘the Code’) for seeking approval of the Resolution Plan submitted by M/s Constantia Corporate Shared Services Private Limited and Alfa Buildhome Private Limited (Resolution Applicant) has been allowed.
Counsel for the Appellant has submitted that the Tribunal has committed an error in approving a sum of Rs. 2,34,990/- out of Rs.2,34,98,999/- of the actual statutory dues of sales tax which comes to only 1 %. In this regard, reliance has been placed upon a Judgment of the Hon’ble Supreme Court rendered in the case of “State Tax Officer Vs. Rainbow Papers Limited” [2022 SCC OnLine SC 1161].
On the other hand, Counsel appearing on behalf of the Respondent has submitted that in another case bearing Company Appeal (AT) (Insolvency) No. 246 of 2022 titled as ‘Department of State Tax, Through the Dy. Commissioner of State Tax Vs. Zicom Saas Pvt. Ltd. & Anr.’ a similar issue was raised that only 1% of the admitted claim has been allotted in the Resolution Plan but the coordinate bench of this Tribunal, noticed the decision rendered in the case of “State Tax Officer (supra) and observed as under:-
9.When we compare the provisions of Section 48 of the provision of Gujarat Values Added Tax which was relied in “Rainbow Papers Limited” and the Provisions of Section 37 which is sought to be relied on in the present Appeal, distinction between the provisions is clear. Section 37 specifically uses the expression “subject to any provision regarding creation of first charge in any central act”. The provision itself contemplated thus that Section 37 was subject to any provision in Central Act. The IBC Section 53 itself provides waterfall mechanism which may be treated to be law which has been contemplated under Section 37 of the MVAT Act, 2002.
10.We thus are of the view that the Judgement of the Hon’ble Supreme Court in “Rainbow Paper Limited” relied by Learned Counsel for the Appellant is distinguishable. The Appellant having been treated as Operational Creditor allocation of amount in the Resolution Plan cannot be said to be in violation of Section 30 (2)(b). We thus are of the view that no ground has been made to interfere with the Impugned Order.”
It is therefore argued that the present Appeal is squarely covered by the decision rendered in the case of Zicom Saas Pvt. Ltd. (supra).
We have heard Counsel for the parties and after considering the rival contentions are of the considered opinion that the present appeal is squarely covered by the decision rendered by this court in the case of Zicom Saas Pvt. Ltd. (Supra), therefore, the present appeal is found to be without any merit and the same is hereby dismissed. No cost.