2023 (3) TMI 401 - AT - Income Tax

Appeals dismissed due to Insolvency & Bankruptcy Code; Tribunal grants liberty to recall order.

The appeals and cross objections filed by the Revenue and the Assessee were dismissed due to the overriding effect of the Insolvency & Bankruptcy Code ... Overriding effect of the Insolvency and Bankruptcy Code over other enactments including the Income-tax Act - liquidation order bars institution or continuation of proceedings against the corporate debtor under section 33(5) of the IBC - moratorium under section 14 of the IBC - liquidator steps into the shoes of the corporate debtor - duties and liabilities of the liquidator under section 178 of the Income-tax Act - liberty to recall the order by the Official Liquidator for appropriate applicationOverriding effect of the Insolvency and Bankruptcy Code over other enactments including the Income-tax Act - liquidation order bars institution or continuation of proceedings against the corporate debtor under section 33(5) of the IBC - liquidator steps into the shoes of the corporate debtor - duties and liabilities of the liquidator under section 178 of the Income-tax Act - liberty to recall the order by the Official Liquidator for appropriate application - Appeals and cross objection pending before the Tribunal are to be dismissed where liquidation proceedings against the assessee company have commenced and the Official Liquidator has been appointed. - HELD THAT: - The Tribunal recorded that NCLT had passed a liquidation order against the assessee company and appointed an Official Liquidator, with moratorium and vesting of powers in the liquidator. In view of the liquidation order, the Official Liquidator steps into the shoes of the corporate debtor and, by virtue of section 33(5) of the IBC, no suit or other legal proceeding shall be instituted by or against the corporate debtor except as permitted with prior approval of the Adjudicating Authority. The Tribunal relied on the supremacy of the IBC where it conflicts with other enactments (section 238 of the IBC and the Supreme Court decision in Principal Commissioner of Income-tax v. Monnet Ispat & Energy Ltd.) and noted the legislative accommodation in section 178 of the Income tax Act which prescribes the duties and liabilities of the liquidator and recognizes the primacy of the IBC. Having regard to these legal principles and consistent decisions of coordinate benches, the Tribunal dismissed the appeals and cross objection while affording the Official Liquidator and the assessee liberty to recall the order by filing appropriate application within permissible limitation; the question of limitation for filing fresh proceedings is to be considered in accordance with the Supreme Court authority referenced by the Tribunal. [Paras 2, 4, 5, 7, 8]Appeals by the Revenue and by the assessee, and the assessee's cross objection, dismissed with liberty to the Official Liquidator or the assessee to recall the order by appropriate application within permissible limitation.Final Conclusion: On commencement of liquidation and appointment of the Official Liquidator, pending appeals and cross objection under the Income tax Act were dismissed on the ground that the IBC and the liquidation order bar continuation of proceedings against the corporate debtor; liberty granted to recall the order if and when appropriate. Issues Involved:1. Corporate Insolvency Resolution Process (CIRP) and Liquidation Proceedings under Insolvency & Bankruptcy Code (IBC).2. Overriding effect of IBC over the Income-tax Act.3. Non-representation by the Official Liquidator.4. Dismissal of appeals and cross objections.Issue-wise Detailed Analysis:1. Corporate Insolvency Resolution Process (CIRP) and Liquidation Proceedings under Insolvency & Bankruptcy Code (IBC):The assessee, engaged in the manufacturing of poultry feeds, was under CIRP initiated by the National Company Law Tribunal (NCLT) under the provisions of IBC 2016. The NCLT, through its order dated 22.10.2019, appointed an Insolvency Resolution Professional (IRP) and granted a moratorium under section 14 of IBC. Subsequently, the NCLT ordered the liquidation of the corporate debtor as per section 33(2) of IBC on 19.02.2021, appointing Mr. Sunil Mohan Acharya as the liquidator. This order also directed the cessation of powers of the Board of Directors and key managerial personnel, vesting all powers in the Liquidator.2. Overriding Effect of IBC over the Income-tax Act:The judgment emphasizes that IBC has an overriding effect over the provisions of the Income-tax Act, as upheld by the Hon'ble Apex Court in Principal Commissioner of Income-tax Vs Monnet Ispat & Energy Ltd. [2019] 107 taxmann.com 481. Section 238 of IBC stipulates that IBC will override any inconsistency in other enactments, including the Income-tax Act. Additionally, section 178 of the Income-tax Act has been amended to prevent conflict with IBC provisions, ensuring that liquidators notify the Income-tax Officer about their appointment and set aside amounts for tax liabilities as directed by the Income-tax Officer.3. Non-representation by the Official Liquidator:The judgment notes that despite the initiation of liquidation proceedings and the appointment of an Official Liquidator, there was no representation from the Liquidator before the Bench in the ongoing appeals and cross objections. The cases were adjourned multiple times due to the lack of representation, even during the moratorium period specified under section 14(1)(a) of IBC.4. Dismissal of Appeals and Cross Objections:Given the overriding effect of IBC and the non-representation by the Liquidator, the Tribunal dismissed the appeals filed by the Revenue and the Assessee, as well as the cross objection filed by the Assessee. The Tribunal granted liberty to the appellants/Official Liquidator to recall the present order if necessary, in accordance with the decision of the Hon'ble Supreme Court in New Delhi Municipal Council vs Minosha India Ltd. [2022] 138 taxmann.com 73. The judgment also referenced a similar decision by the ITAT, Mumbai in Pratibha Industries Ltd. Vs. DCIT [2022] 142 taxmann.com 295, which held that IBC proceedings have an overriding effect over the Income-tax Act, leading to the dismissal of cross appeals by the Revenue and the Assessee.Conclusion:The appeals and cross objections filed by the Revenue and the Assessee were dismissed due to the overriding effect of IBC over the Income-tax Act and the non-representation by the Official Liquidator. The Tribunal provided liberty to recall the order if necessary, following the guidelines set by the Hon'ble Supreme Court. The judgment reaffirms the precedence of IBC in cases of parallel proceedings under the Income-tax Act and IBC.