TaxTMI 
TaxTMI 
TaxTMI 
2019 (10) TMI 58
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....lders have filed objections. Therefore, before examining the "Resolution Plan", it is necessary to deal with the objections of the stakeholders, which are as follows:- I. The objections filed by operational creditor viz., Arjun Chemicals Private limited; (i) It is stated by the objector/operational creditor that their Counsel had sent an e-mail dated 04.06.2019 calling upon the Resolution Professional to furnish the entire Resolution Plan, to which the Resolution Professional replied vide his e-mail dated 05.06.2019 annexing an unsigned draft "Corporate Insolvency Resolution Plan" containing a few clauses that appears to be incomplete and numbered incorrectly. It is stated that the document received vide mail dated 05.06.2019 does not even reveal the name of the Resolution Applicant and is in violation of the dictum laid down in Company Appeal (AT) (Insolvency) No. 82 of 2018 by Hon'ble NCLAT in Binani Industries Ltd. v. Bank of Baroda. (ii) It is stated by the objector that out of the admitted claim of the Operational Creditor amounting to Rs. 19,63,772/-, only an amount of Rs. 2,55,290/- is proposed to be paid to the present objector. Further, one of the clauses of the Reso....
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....onal creditor are devoid of merits and stand rejected. II. The objections filed by the State of Tamil Nadu represented by State Tax Officer: (i) The State Tax Officer, Government of Tamil Nadu states that vide communication dated 23.5.2019, he was informed that the Resolution Plan had approved only a sum of Rs. 2,89,080/- out of a total claim of Rs. 30,47,372/- (Tax of Rs. 8,23,686/- and interest of Rs. 22,23,686). He further contends that levy and collection of the taxes on sale or purchase in the State of Tamil Nadu is governed by TNVAT Act 2006. The Resolution Plan insofar as it provides for a haircut of 87%, contravenes the provisions of TNVAT Act, 2006. (ii) The Objector states that the order of assessment had been made for the Assessment Years 2009-10 to 2013-14. However, the assessment order is yet to be served in the manner prescribed under TNVAT Act 2006. Therefore, the State of Tamil Nadu is not presently pressing for the remaining sum of Rs. 11,09,95,646/- (Tax Rs. 5,11,48,488/- and Penalty of Rs. 5,98,47,158/-) but reserves its liberty to file the claim in respect of the above sum either before the Liquidator, if the Resolution Plan fails or not approved or with t....
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....s made on extraneous consideration. In view of it, the submissions made by the Counsels for the Resolution Applicant and the suspended directors appear to be correct, the fresh claim of the CT department being flawed and time barred stands rejected. III. The objections filed by TANGEDCO: (i) It is recalled that initially the TANGEDCO vide its letter dated 06.03.2019 sent by the Superintending Engineer, Dindigul, informed the Resolution Professional that an amount of Rs. 82,32,871/- as current consumption charges are payable by the Corporate Debtor and Rs. 80,32,790/- as security deposit is available with them for the HT Service No. 311. The RP has sent a letter on 25.03.2019 to TANGEDCO informing that their claim was considered and allocation of funds is made like other operational creditors with a hair-cut of 87% by providing a sum of Rs. 10,70,273/- in the Resolution Plan. The deposit amounting to Rs. 80,32,790/- lying with TANGEDCO has been treated as assets of the Corporate Debtor (ii) On receipt of the above communication, the superintending Engineer, Dindigul has sent one more letter dated 06.06.2019 informing the Resolution Professional that they have adjusted the CC c....
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....on will have priority over other debts, in the case of such insolvent proceedings, so the claim amount of Rs. 20,48,611/- should be paid fully to the ESI Corporation. In relation to the objection raised by the ESIC, the counsel for the Resolution Applicant has submitted that the contention of the objector/operational creditor to be entitled to the entire dues without adopting the hair cut method is unsustainable in law, the ESIC is entitled to get the due payable to them in the same hair-cut method approved for other operational/financial and statutory creditors. An identical issue was raised before the Hon'ble Supreme Court in SLP (C) No(s) 6438, 2018 titled PR. CIT v. Monnet Ispat & Energy Ltd., wherein Apex Court has been observed as under: "Given Section 238 of the Insolvency and Bankruptcy code 2016, it is obvious that the Code will override anything in consistent contained in any other enactment, including the Income-tax Act." (ii) Further, in another matter titled Innoventive Industries Ltd. v. ICICI Bank Ltd. and Anr., (Civil Appeal Nos. 8337-8338 of 2017) the Hon'ble Supreme Court has observed that 'it is clear that later non-obstante clause of the parliamentary ....
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....at is very useful to sustain the industry as one of the profit making industry in future, which is the main object of the Resolution Process under the IBC, 2016. (iii) The counsel for the suspended board of directors has submitted that in terms of the decision given in Haryana Hotels Ltd.'s case (supra), which has been referred by the Income Tax officer, it has clearly been recorded by the Hon'ble High Court of Punjab and Haryana that the assessee is entitled to claim carry forward of unabsorbed depreciation for the earlier years, even if no valid returns for the said period have been filed. In view of it, the Resolution Applicant is directed to seek the permission of the competent authority to file the ROIs for the relevant assessment years for which the returns have not been filed for availing the benefit of carry forward of losses and unabsorbed depreciation. Further, it is already noted that the Hon'ble Apex Court in Monnet Ispat & Energy Ltd.'s case (supra) has held that Section 238 of the Insolvency and Bankruptcy Code, 2016 will override anything in consistent contained in the Income Tax Act. In view of it the objections raised by the Income Tax officer stand rejected. 2.....
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....from prospective Resolution Applicant for submitting the Resolution Plan for the Corporate Debtor and had complied with the statutory requirements in receiving claims, collating the same, conducting the CIR Process by taking possession of the assets, valuing the assets, re-verification of the claims, protecting and preserving the assets of the Corporate Debtor. 7. The Applicant states that pursuant to the publication, the Applicant received six "EoI", Out of it, the Resolution Professional received two Resolution Plans on 25.3.2019 and 27.3.2019 respectively. The details of the Eligibility Criteria and Resolution Applicants are as follows: Particulars Net Worth Turnover Eligibility Criteria (As fixed by the Committee of Creditors for Prospective Resolution Applicants as per EOI as per the last audited financials) Rs. 5 Crores Rs. 15 Crores in the last 3 years M/s. SB HOMES, Chennai 51.65 Crores 41 Crores M/s. Hi Tech Bio Products, Chennai 18.16 Crores 48.92 Crores 8. It is stated that during the 5th Meeting of CoC held on 22.04.2019, the Applicant had physically circulated a copy of the Resolution Plans along with Resolution Professional's certificate of compliance....
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....case of any appeal against the order of approval of the Resolution Plan, the second trench of payment shall be made after extinguishment of all appealable Rights. 3 Arjun Chemicals Ltd-Operational Creditor 19,63,772/- 2,55,290/-(immediately post 45 days post approval of the Resolution Plan) Paid out propionate to the Liquidation Value 4 A. Subrammaniam 29,537/- 3,840/- (immediately post 45 days post approval of the Resolution Plan) Paid out propionate to the Liquidation Value 5 A.C Commercial Taxes, Palani Government Dues 22,23,686/- (8,23,686+ compounded interest @ 18%, Rs. 14,00,000/-) 2,89,080/- (immediately post 45 days post approval of resolution plan) Paid out propionate to the Liquidation Value and attachment to be lifted 6 Employees State Insurance Corporation, Madurai 20,48,611/- 2,66,319/- (immediately post 45 days post approval of resolution plan) 7 Local Tax - Thalayuthu Panchyat 6,30,000/- 81,900/- (immediately post 45 days post approval of resolution plan) 8 Superintending Engineer D.E.D.C / Dindigul-2 TENGEDO 82,32,871/- (Form F not submitted) 10,70,273/- (immediately post 45 days post approval of resolution plan) Supply t....
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....ion with the Corporate Debtor or affairs of the Corporate Debtor, pending or threatened, present or future in relation to any period prior to the Plan approval date, or arising on account of implementation of this Resolution Plan shall deemed to have been waived, withdrawn and dismissed. This is with a view to implement the Resolution Plan successfully as approved by the CoC, so that the Corporate Debtor be put on the track of business again without facing any hardship. Further, the approval stands granted for reduction of the capital as contemplated under the resolution plan without requiring compliance with the provisions of Sec. 66(1) and (2) of the Companies Act, 2013. 13. It is noted that the Resolution Professional has filed Compliance Certificate in Form H as required under Regulation 39 (4) of the Code. Pursuant to the meeting of the CoC held on 26.4.2019 (e-voting dated 01.05.2019), the Resolution Professional issued the letter of intent to the successful Resolution Applicant viz., M/s. Hi Tech Bio Products and the Resolution Applicant had furnished the Performance Bank Guarantee as required under Sub-Regulation (4A) of Regulation 36B of the Code. The Resolution Applicant....