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TaxTMI 
TaxTMI 
TaxTMI 
2021 (5) TMI 551
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....of the 'Adjudicating Authority' on 19.01.2021. As such, the 'impugned Order' was made available at a later date. That apart, there has occasioned a delay of 15 days in preferring the instant 'Company Appeal', because of the prevailing circumstances, on account of the 'on-going' pandemic of COVID-19 in the country, which is neither wilful nor wanton but due to the aforesaid reasons. This 'Tribunal', on being subjectively satisfied as to the reasons ascribed for the delay of 15 days that has occasioned in preferring the present Company Appeal (AT) (INS) 07 of 2021, condones the delay of 15 days to secure the ends of justice and allows the I.A.No.20/2021 in Company Appeal AT(INS) No.07/2021. No costs. Background: 2. The Appellant/Successful Resolution Applicant has filed the 'Instant Appeal' being aggrieved with the Order dated 24.12.2020 passed by the 'Adjudicating Authority' (National Company Law Tribunal, Hyderabad Bench, Hyderabad in I.A.No.868/2020 in C.P.(IB)No.186/9/HDB/2019 filed by the Resolution Professional of the 1st Respondent) under Section 30(6) of the I & B Code R/W Regulation 39(4) of the Insolvency and Bankruptcy Board of India (Insolvency Resolution Process for Co....
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.... contends that the 'Impugned Order' of the 'Adjudicating Authority' to the extent that it refuses and denies allowing and granting the necessary and critical conditions for implementation of the 'Resolution Plan' and waiver thereof, contrary to the Provisions of the I & B Code. 5. According to the Appellant, the 'Adjudicating Authority' had committed an error in appreciating that the 'Resolution Plan' was approved by the 'Committee of Creditors' with the majority of 80.64% thereby meaning that the 'Committee of Creditors' in its 'Commercial Wisdom' approved the conditions imposed by the 'Appellant' for the implementation of the 'Resolution Plan' 6. The grievance of the Appellant is that the 'Adjudicating Authority' had committed an error by placing an additional paragraph 22 of the 'Impugned Order', as a result thereof, the financial viability of the plan has been seriously affected by opening of the plan towards 'undecided claims'. It is also represented on behalf of the Appellant that the 'Appellant' does not have a finality towards the liabilities of the 'Corporate Debtor'. 7. The Learned Counsel for the Appellant takes a plea that in the instant case, the total debt amount o....
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....s, it will only send the 'Resolution Plan' back to the 'Committee of Creditors', for re-submission and cannot interfere with commercial aspects. [Vide Paragraphs 65.1, 66, 67, 67.1, 67.2, 67.4, 67.5, 69, 72, 73, 74.2, 74.3, 75.2, 77, 77.1, 77.5, 127, 209, 216(A)]. 10. Advancing his arguments, the Learned Counsel for the Appellant points out that in the 'Adjudicatory Process' pertaining to a 'Resolution Plan' under the I & B Code, there is no scope for interference with the Commercial Aspects of the decision of the 'Committee of Creditors' and in fact, there is no scope for substituting any commercial term of the 'Resolution Plan' approved by the 'Committee of Creditors'. 11. The Learned Counsel for the Appellant submits that the 'Adjudicating Authority' had not appreciated the decision of the Hon'ble Supreme Court in 'Committee of Creditors of Essar Steel India Limited v Satish Kumar Gupta (2019, SCC Online SC, 478), wherein it is observed and held that the Resolution Applicant cannot be faced with the 'undecided' claims after the 'Resolution Plan' is approved as this would amount to a hydra head popping up which would throw into uncertainty amount payable by a prospective Resolu....
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....laim, which is not part of the resolution plan". 16. The Learned Counsel for the Appellant relies on the Judgment of this Tribunal dated 24.01.2020 in Santosh Wasantrao Walokar v Vijaykumar v Iyer (Company Appeal(AT) INS No.871-872 of 2019, reported in 2020 SCC Online at NCLAT 128, wherein at Paragraph 30(ii) it is held that "the conditional plans are to be approved by the National Company Law Tribunal in the event the same have been accepted by the Committee of Creditors.". 17. The Learned Counsel for the Appellant points out the Order of the National Company Law Tribunal, Hyderabad dated 17.10.2019, in Indian Opportunities Pvt. Ltd. & Vistra ITCL (India)Ltd. v Sai WardhaPower Generation Ltd, CP (IB) No.275/7/HDB/2018 wherein the Tribunal granted reliefs as prayed for in the 'Resolution Plan' in regard to the 'Waiver from collection of stamp duty and fees applicable in relation to the Resolution Plan and its implementation and other dues of the Corporate Debtor in respect of all Government bodies/authorities for the period prior to the effective date. 18. The Learned Counsel for the Appellant seeks in aid of the Order of the Hon'ble Andhra Pradesh High Court in the case of Leo ....
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....nted relief under Section 79(2)(c) of the Income Tax Act, 1961. Moreover, the 'Adjudicating Authority' at Paragraph 22 of the Order had observed that the 'Resolution Plan' shall not consider any 'Waiver' to any 'Statutory Obligations/ Liabilities' arising out of the approved 'Resolution Plan' and has followed the whole that the same shall be subject to the approval to be granted by the 'Authority'. 21. The Learned Counsel for the 1st Respondent points out that in regard to the reliefs claimed by the 'Resolution Applicant' under Section 28(iv) 41(1), 56, 115(j)(b) and 170 of the Income Tax Act, the department had raised their objections. Evaluation: 22. At the outset, this Tribunal pertinently points out that the 'Resolution Plan' dated 16.07.2020 in respect of the 1st Respondent/Sujana Universal Industries Ltd. (Suil) at Sl.No.9 'Conditions' to implementation of this Plan at Sl.No.9.1 reads as under: "9.1 Grant of certain reliefs is critical for the implementation of this Resolution Plan, and the Resolution Applicants shall not be obligated to implement this Plan unless the following critical conditions are satisfied, or waived by the Resolution Applicants: (i) The NCLT shal....
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....ons at all levels. (vi) The Resolution Applicants shall be permitted to apply and obtain fresh Goods and Services Tax (GST) registration Number or any other new registration (including but not limited to ESI, PF Importer Exporter Code (IEC), TAN, Professional Tax) or new license for the Corporate Debtor, as may be required, in place of the existing GST registration, or any other existing registrations or existing licenses. Any pending proceedings / dues (including interest and penalty) towards GST liability, or any other Statutory Liability/Dues, which shall be considered to have been waived / exempted in the manner prescribed in the above Clause." 24. It comes to be known that the final 'Resolution Plan' was put up for due consideration by the 'Committee of Creditors' in the meeting that took place through 'Video Conferencing' on 15.09.2020. In reality, the said 'Resolution Plan' was approved by 80.64% of the voting share of the 'Committee of Creditors'. Besides this, the 'Resolution Applicant' had confirmed that 'Resolution Plan' duly complied with the requirements of the I & B Code and Regulations made thereunder. Based on the approval of 'Resolution Plan' by the 'Committee o....
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....mended on 06.02.2018) a 'Resolution Plan' shall provide for the measures, as may be necessary for 'Insolvency Resolution of Corporate Debtor' for maximisation of value of its assets including but not limited to the matters specified in this Regulation. 30. Regulation 39 of the 'Insolvency Resolution Process' for 'Corporate persons' Regulations, 2016 (as amended by IBBI [3rd amendment] Regulations, 2017 and IBBI amended Regulation enjoins that a 'Resolution Applicant' shall endeavour to submit a 'Resolution Plan' prepared in accordance with the Code, etc. 31. As per Regulation 39(2), the 'Resolution Professional' shall present the 'Resolution Plans' that meet the requirements of the 'Code' and these Regulations to the 'Committee' for its consideration. In fact, Regulation 39(2) amended by the Board (Insolvency Resolution Process for Corporate Persons') [3rd Amendment] Regulations, 2017, says that the 'Resolution Professional' shall submit to the 'Committee' all 'Resolution Plans' which comply with the requirements of the Code and Regulations made thereunder together with the details of transactions under Section 43, 45, 50 and 66. 32. The Regulation 39(3) of the Board says that t....