TaxTMI 
TaxTMI 
2021 (4) TMI 522
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....r Section 43(1) of Insolvency and Bankruptcy Code,2016 [hereinafter referred to as 'I&B Code,2016'] seeking a declaration that the transactions held from 29.11.2017 to 28.11.2019 as related party transactions and direct the related parties to pay back the amount to the Company. 2. It is stated that the Applicant made an opinion in the Second CoC meeting dated 15.02.2020, that the Company involved in various related party transactions and entered into a Land Sale Agreement in 2019. 3. The Applicant further stated that SVAR and Associates [Chartered accountants] conducted a limited transaction review and submitted a Report that the following payments from 29.11.2017 to 28.11.2019 are considered as Preferential Transactions as loan repay....
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....e through the averments made by both the parties in this Application and heard the arguments advanced by both sides. The Tribunal vide order dated 08.01.2021 in I.A. No. 202 of 2020 in IBA/21/KOB/2020 had approved the Resolution Plan submitted by the Successful Resolution Applicant. 7. At this juncture, it is pertinent to note the provision of Section 43 of the I&B Code that deals with the Preferential Transactions as under: - (1) Where the liquidator or the resolution professional, as the case may be, is of the opinion that the corporate debtor has at a relevant time given a preference in such transactions and in such manner as laid down in sub-section (2) to any persons as referred to in sub-section (4), he shall apply to the ....
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.... Provided that any transfer made in pursuance of the order of a court shall not, preclude such transfer to be deemed as giving of preference by the corporate debtor. Explanation. -For the purpose of sub-section (3) of this section, "new value" means money or its worth in goods, services, or new credit, or release by the transferee of property previously transferred to such transferee in a transaction that is neither void nor voidable by the liquidator or the resolution professional under this Code, including proceeds of such property, but does not include a financial debt or operational debt substituted for existing financial debt or operational debt. (4) A preference shall be deemed to be given at a relevant time, i....
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....elated party transactions were happened. 10. In the present case, the impugned transactions are between the Respondents [erstwhile Directors of the Corporate Debtor] and Corporate Debtor. The Applicant's case is that these transactions are preferential in nature because the amount was advanced by the Corporate Debtor to the Respondents and Land Sale Agreement was also made between them. However, the Applicant failed to prove that these transactions made by the Corporate Debtor were preferential in nature, by producing any document. According to the Applicant SVAR and Associates conducted Audit and filed a Report, but that was not produced along with the Application. Similarly, in order to prove the time period of transaction held prior t....
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....g process. The examination has to commence on the insolvency commencement date. The Resolution Professional has to form an opinion by the 75th day of commencement of CIRP. If the Resolution Professional comes to the conclusion that the Corporate Debtor has been subject to preferential transactions, the determination has to be made by the 115th day commencement of CIRP. The Resolution Professional also has to apply to the NCLT for appropriate relief on or before the 135th day commencement of CIRP. The prescription of the above timelines has a purpose. However, what is significant is the fact that under Regulation 39, the Applicant has to submit, along with the Resolution Plans, details of all the objectionable transactions including preferen....