Vaibhav Goel (Resolution Applicant) vs Deputy Commissioner of Income Tax

Anant Bijay Singh;

This Appeal has been preferred by the Appellants namely Mr. Vaibhav Goel and Mrs. Madhu Goel (Joint Resolution Applicants) aggrieved and dissatisfied by the order dated 17.09.2020 passed by the Ld. Adjudicating Authority (National Company Law Tribunal), New Delhi, Court - IV in IA No. 3412/ND/2020 in (IB)-447/ND/2018 whereby and where under the application filed by the Monitoring Professional (Respondent No. 2 herein) was dismissed with cost of Rs. 1,00,000/- was imposed on the present Applicants (Joint Resolution Applicants).

The facts giving rise in the instant Appeal are as under:

i) That the Corporate Insolvency Resolution Process (for short CIRP) was initiated against the Corporate Debtor on 31.05.2018 on an application filed by one operation creditor namely, Amit Steels.

ii) The Ld. Adjudicating Authority appointed Praveen Bansal as the Interim Resolution Professional (for short IRP) of the Corporate Debtor and IRP was later confirmed as Resolution Professional by the Committee of Creditors.

iii) Further case is that after the subsequent developments and earnestly following the CIRP regulations, 2016 one Resolution Applicant came forth upon the publication of the Form-G (Expression of Interest). The Joint Resolution Applicants (Appellants herein) submitted a resolution plan.

iv) Further case is that in the 6th Committee of Creditors meeting took place on 02.02.2019, the CoC approved the resolution plan submitted by the Joint Resolution Applicants and as a natural outcome an application under Section 30(6) of the Code was moved by the Resolution Professional for the approval of the Resolution Plan. The copy of the Resolution Plan is Annexure A-3 at page 44 to 93 of the Appeal Paper Book.

v) The Learned Adjudicating Authority approved the Resolution Plan on 21.05.2019 submitted by the Joint Resolution Applicants (Annexure A-4 at page 94 to 120 of the Appeal Paper Book).

vi) Further case is that the Ld. Adjudication Authority while approving the Resolution Plan in the para 25 of the Resolution Plan approval order recorded that the Resolution Plan is in compliance of the Section 30(2) of the Code and recorded as under:

"Secondly as per clause (b) of Section 30 (2) of the Code, the Resolution Plan must provide for the payment of the debts of operational creditors in such manner as may be specified by the Board which shall not be less than the amount to be paid to the operational creditors in the event of a liquidation of the corporate debtor under section 53. Resolution plan offers to make payment equivalent to 50% of the amount due to operational creditors. The said amount is more than the amount payable to the operational creditors in the event of liquidation of the corporate debtor under Section 53. Proof of claim has not been received from any worker. Considering the estimated liability due to workers from insolvency commencement date i.e. 31.05.2018, CoC has allocated Rs. 0.17 Crores for payments to workers and employees. Payment to workers and employees will be made for whole of the liability in the normal course of business. Resolution Plan proposes to make full payments towards any claim on account of unpaid wages, salaries and other entitlements relating to the period before the commencement of the CIRP. There is thus clear allocation of fund and protection, and therefore this condition stands satisfied."

vii) Further, in the paragraph 18 of the Resolution Plan approval order, the Ld. Adjudicating Authority in respect of the Resolution Plan recorded as under:

" 3. No waiver has been sought in respect of debt in respect of statutory dues, unsecured financial creditors and workers and employees. Payment will be made in the due course of business.

Contingent liabilities on account of show cause notices issued by electricity department, central excise department, income tax department, VAT department has been proposed to be paid in full in instalments post availing all remedies available with resolution applicants, without any interest,penal interest or damages. Resolution Applicants has also proposed for protection from coercive action by these departments for deposit/settlement of the demand, which are subject to the appeal and waiver of the requirement for pre-deposit."

viii) Further case is that the Ld. Adjudicating Authority denied granting the protection to the Joint Resolution Appellants with regard to waiver of requirement of pre-deposit, waiver of interest etc. in reference to statutory dues. The Ld. Adjudicating Authority while approving the Resolution Plan recorded as under:

" 44. In the resolution plan, relief and concession has been sought in respect of statutory dues for making payment in instalments, no coercive action, waiver of requirement of pre-deposit for filing appeals, waiver of interest, penal interest or damages. These are issues to be decided by the respective government department and appropriate application may be moved before them."

ix) Further case is that the Resolution Plan was approved by the Ld. Adjudicating Authority, however, it is imperative to add that after the approval of the Resolution Plan, the Respondent No. 1 started agitating demands which were prior to the CIRP initiation.

x) Further case is that the Resolution Professional did not receive any claim from the Respondent No. 1 till the time of submission of Resolution Plan, however, the Resolution Professional had disclosed / admitted liability of INR 16,85,79,469 Crores for the assessment year 2014-15, which was pending as contingent liability of the Corporate Debtor towards the Respondent No. 1.

xi) Further case is that it is a matter of covered the dues of the Respondent No. 1 pertaining to assessment year 2014-15 and the Joint Resolution Applicants undertook to pay the liability of the department in full after exhausting all the remedies available with the Joint Resolution Applicants [Annexure A-5 (Colly) at page 121 to 122 of the Appeal Paper Book].

xii) Further case is that the Respondent No. 1 also agitated the fresh demands after the approval of the Resolution Plan which is completely against the scheme of the Code and regulations therein. The Respondent No. 1 after the approval of the Resolution Plan raised two demand notices relating to the assessment year 2012-13 and assessment year 2013-14 [Annexure A-6 (Colly) at page 123 to 183 of the Appeal Paper Book].

xiii) The reply letter dated 30.01.2020 (Annexure A-7 at page 184 to 215 of the Appeal Paper Book) was sent by the Monitoring Professional to the Respondent No. 1 stating therein clearly that no demand can be raised from the Corporate Debtor at the stage of implementation of the already approved resolution plan and requested the Respondent No. 1 not to take any coercive action.

xiv) The Appellant again received the notice on 02.06.2020 and agitation of the fresh demands by the Respondent No. 1 were assailed by the Monitoring

Professional before the Adjudicating Authority and the Adjudicating Authority after hearing the submissions made by the Counsel of Monitoring Professional issued notice on 27.08.2020 to the Respondent No. 1 as service affidavit was

also filed on behalf of Monitoring Professional in compliance of order dated 27.08.2020 [Annexure A-9 (Colly) at page 218 to 224 of the Appeal Paper Book] surprisingly, the IA No. 3412/ND/2020 in (IB)-447/ND/2018 filed by the Monitoring Professional (Respondent No. 2 herein) was dismissed on 17.09.2020 with cost of Rs. 1,00,000/- was imposed on the present Applicant and Joint Resolution Applicant and hence this Appeal.

Submissions on behalf of the Appellants

The Learned Counsel for the Appellants during the course of argument and his memo of Appeal alongwith Written Submissions submitted that the Ld. Adjudicating Authority approved the Resolution Plan on 21.05.2019 and observed that the Resolution Plan submitted qualifies the requirements stipulated under Section 30(2) of the Code.

It is further submitted that the Ld. Adjudicating Authority denied granting the protection to the Joint Resolution Applicants with regard to waiver of requirement of pre-deposit, waiver of interest etc. in reference to statutory dues.

It is further submitted that the Ld. Adjudicating Authority failed to appreciate that the Deputy Commissioner of Income Tax - Respondent No. 1 after the approval of the plan started agitating for the demands which were prior to the CIRP initiation.

It is further submitted that the letter dated 30.01.2020 (Annexure A-7 at page 184 to 215 of the Appeal Paper Book) sent by Monitoring Professional to the Respondent No. 1 stating therein clearly that no demand can be raised from the Corporate Debtor at the stage of implementation of the already approved resolution plan and requested the Respondent No. 1 not to take any coercive action.

The Learned Counsel for the Appellant further submitted that these facts are not considered by the Ld. Adjudicating Authority while passing the impugned order. So, based on these submissions the impugned order is fit to be set aside and the Appeal be allowed.

Submissions on behalf of the Respondent No. 1

The Learned Counsel for the Respondent No. 1 during the course of argument and his Reply Affidavit alongwith Written Submissions submitted that a search operation was conducted by the Directorate General of Central Excise Intelligence (DGCE) on 04.07.2013 at the premises of the above named company. On the basis of information/documents gathered during the search operation, the Central Excise Department estimated that the assesse company had evaded Union Excise duty on account of clandestine removal of goods. The said information was passed on to the Income Tax Department by the Excise Authorities. On the basis of information so passed on by the Excise Department, the case of the assesse company for A.Ys 2012-13 to 2014-15 were re-opened by issuing notices under Section 148 of the Income Tax Act, 1961. The assessment proceedings for A.Y. 2014-15 was completed on 18.12.2017 itself, while those for A.Y. 2012-13 was completed on 26.12.2019 and for A.Y. 2013-14 on 27.12.2019 which led to the creation of the following demands: -

A.Y. 2014-15 Rs. 16,85,79,469/-

A.Y. 2012-13 Rs. 9,46,80,622/-

A.Y. 2013-14 Rs. 25,55,43,350/-

First Appeal of the assesse company against these three assessment orders are still pending with CIT(A).

It is further submitted that during the FY 2018-19 one M/s Amrit Steels (operational Creditor of the assesse) filed an application against the assesse company before the NCLT, New Delhi under Section 9 of the Insolvency and Bankruptcy Code, 2016 and the same was admitted by the NCLT vide its order dated 31.05.2018 appointed as the IRP and moratorium was also imposed under Section 14 of the Code. The Ld. NCLT vide its order dated 21.05.2019 [in (IB)-447/ND/2018] approved the resolution plan. The Ld. NCLT vide para 47 of its order lifted the moratorium imposed by it vide order dated 31.05.2018.

It  is  further  submitted  that  the  resolution  plan  itself  offered  and approved 100% payment of tax dues on crystallization of tax demand. The instant demands were raised by the Income Tax Department pursuant to assessment order dated 26.12.2019 and 27.12.2019 i.e. after the moratorium imposed by the Ld. NCLT on 21.05.2019. Hence, on the date of demand, no moratorium under Section 14 of the Code was operative.

It is further submitted that the Appellants preferred an application before the Ld. NCLT for stay of demand which was dismissed by Ld. NCLT vide its order dated 17.09.2020 with cost of Rs. 1,00,000/- for wasting the precious judicial time.

It is further submitted that the order approving the Resolution Plan at para 44 (page 119 of the Appeal Paper Book) is hereunder:

" 44. In the resolution plan, relief and concession has been sought in respect of statutory dues for making payment in instalments, no coercive action, waiver of requirement of pre-deposit for filing appeals, waiver of interest, penal interest or damages. These are issues to be decided by the respective government department and appropriate application may be moved before them"

The Learned Counsel for the Respondent No. 1 further submitted that the Ld. Adjudicating Authority rightly dismissed the IA No. 3412/ND/2020 in (IB)-447/ND/2018 filed by the Monitoring Professional (Respondent No. 2 herein) with cost of Rs. 1,00,000/- was imposed on the present Applicant and Joint Resolution Applicant. Based on these submissions there is no merit in the instant Appeal, the Appeal is fit to be dismissed.

FINDINGS

After hearing the parties and having gone through the pleadings made on behalf of the parties, we are of the view that the IA No. 3412/ND/2020 in (IB)-447/ND/2018 filed by Mr. Ajay Kumar Aggarwal, Monitoring Professional (Respondent No. 2 herein) with a prayer before the Ld. Adjudicating Authority (at page 37 of the Additional Affidavit) is hereunder:

"a) Declare that the demand raised in respect of the Assessment year 2012-13 are invalid in light of Hon'ble Supreme Court decision rendered in Essar Steel and restrain the Respondent from raising such demand;

b) Declare that the demand raised in respect of the Assessment Year 2013-14 is invalid in light of Hon'ble Supreme Court decision rendered in Essar Steel and restrain the Respondent from raising such demand;

c) Re-adjudicate and Reconsider the relief sought by the Joint Resolution Applicants in reference to the statutory dues for making payments in instalments, requirement of Pre-deposit for filing appeals, waiver of interest, penal interest or damages, coercive action etc. for effective implementation of the Resolution Plan;

d) Any  other  relief  that  this  Hon'ble  Tribunal  may  consider necessary in the interest of justice, equity and fair play."

Since the Appellants are successful resolution applicants, the resolution plan was not challenged by them and the judgment passed by the Hon'ble Supreme Court reported in 2021 SCC OnLine SC 313 (Ghanashyam Mishra and Sons Vs. Edelweiss Asset Reconstruction Company Limited through the Director & Ors.) as has been relied by the Learned Counsel for the Appellants is not applicable. This Appellate Tribunal cannot appreciate the ratio of the judgment of "Ghanashyam Mishra" in this case in much as the Judgment of "Ghanashyam Mishra" was not cited before the Ld. Adjudicating Authority and further in absence of challenge the Resolution Plan which was approved vide order dated 21.05.2019.

The Ld. Adjudicating Authority while approving the Resolution Plan vide order dated 21.05.2019 in para 44 has rightly observed that " In the resolution plan, relief and concession has been sought in respect of statutory dues for making payment in instalments, no coercive action, waiver of requirement of pre-deposit for filing appeals, waiver of interest, penal interest or damages. These are issues to be decided by the respective government department and appropriate application may be moved before them".

The Appellants herein through Respondent No. 2 have filed the IA No. 3412/ND/2020 in (IB)-447/ND/2018 and has rightly pointed out by the Ld. Adjudicating Authority that the application is filed for wasting precious time of Judicial Forum and delay the matter.

ORDER

In view of the above, we are of the considered view that there is no illegality committed by the Ld. Adjudicating Authority while passing the impugned order therefore, we do not need to interfere in the impugned order. The impugned order dated 17.09.2020 passed by the Ld. Adjudicating Authority (National Company Law Tribunal), New Delhi, Court - IV in IA No. 3412/ND/2020 in (IB)-447/ND/2018 is hereby affirmed. There is no merit in the Appeal. The Appeal is hereby dismissed. No order as to costs.

Registry to upload the Judgment on the website of this Appellate Tribunal and send the copy of this Judgment to the Ld. Adjudicating Authority (National Company Law Tribunal), New Delhi, Court - IV, forthwith.