TaxTMI 
TaxTMI 
2021 (8) TMI 656
X X X X Extracts X X X X
X X X X Extracts X X X X
....d they have never been informed about the Impugned Order. It is submitted that the 'Appellant' is a Statutory Organisation comes under Ministry of Labour and Employment, Government of India and it has to act in accordance with law and procedure vested with power to overlook the implementation of the Employees Provident Fund and Miscellaneous Provisions Act, 1952. The 'Appellant' is custodian of interest of the poor workers and the Employees Provident Fund Organisation is a Social Welfare Legislation. 2. The Learned Counsel for the 'Appellant' submitted that M/s. Bunt Solar India Pvt. Ltd., under liquidation has defaulted in payment of Employees Provident Fund and allied dues to the tune of Rs. 2,34,10,240/- and the details have been (extracted from Page: 08) of Appeal Paper Book. 1. Order dated 30.11.2018 issued under section 7A of the EPF & MP Act, 1952 (Dues for the period from March, 2016 to December, 2017 Rs. 1,22,13,876/- 2. Provisional Dues assessed vide order dated 03.7.2019 under section 14 B towards Penal Damages & interest undersection 7Q of the EPF & MP Act, 1952 (for the period from March, 2016 to December, 2017) Rs. 1,11,96,310/- 3. Dues under section....
X X X X Extracts X X X X
X X X X Extracts X X X X
....e Code, the EPF dues are outside the Liquidation Estate in light of the above provision of law. Therefore, the EPF dues ought to have been paid in priority, in accordance with Section 36(4) of the I&B Code. 6. In this regard, the Learned Counsel emphasized the decision of this 'Tribunal' in the matter of Regional Provident Fund Commissioner -I Ahmedabad Vs Ramachandra D. Choudhary Comp app (AT)(INS) No. 354 of 2019. In view of the above, the Learned Counsel for the 'Appellant' requested the Bench to allow the appeal by setting aside the Impugned Order dated 06.01.2021 and sought directions to the Respondent to pay the entire dues of the 'Appellant' amounting to Rs. 2,34,10,240/- Respondents Submissions': - 7. Sri. Gorur Narasimhamurthy Venkataraman, Advocate for the Liquidator (1st Respondent), filed his Response to this appeal and submitted that the 'Appellant' has no Locus Standi to file this appeal for the reason that the 'Appellant' is not an aggrieved person, since the Corporate Debtor had been dissolved by the Impugned Order of the Hon'ble 'Adjudicating Authority'. However, as per Section 61(4) of the I&B Code 2016, the appeal against the Liquidation Order passed und....
X X X X Extracts X X X X
X X X X Extracts X X X X
....' is not an aggrieved party, as defined under Section 61 of IBC 2016. 11. The Learned Counsel for the Respondent also submitted that one of the Operational Creditor namely M/s. Rashmika Info Technologies Pvt. Ltd. had filed the application initiating Corporate Insolvency Resolution Process, against M/s. Bunt Solar India Pvt. Ltd., vide application no. CP (IB No. 72/BB/2019) under Section 9 of the IBC 2016. The said application was admitted by the Hon'ble 'Adjudicating Authority' on 14.06.2019, and appointed the Respondent as IRP. 12. The IRP constituted Committee of Creditors (CoC). The Corporate Debtor does not own any Assets/Properties. As such the liquidation value being nil and (CoC) recommended for liquidating Corporate Debtor through Resolution Professional. The 'Adjudicating Authority' passed order for liquidation of Corporate Debtor as per Section 33 of IBC in IA 408 of 2019 in CP 72 of 2019, vide order dated 05.09.2019. The 'Appellant' should have filed an appeal within thirty days from the date of receipt of the copy of the Order, but, did not participate in any of the proceedings before the 'Adjudicating Authority'. It is submitted that the liquidation value of Cor....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... Nagar, Bangalore. As stated supra, the IRP made public announcement of the liquidation of the Corporate Debtor in Form 'B' in Kannada (Vernacular language) as well as English Newspaper, inviting claims from stakeholders. Since the company was liquidated by the Hon'ble 'Adjudicating Authority'. The 'Appellant' submitted their claim in Form 'F' dated 11.10.2019. 18. The stand of The Liquidator / Respondent is that the claim which was submitted in Form 'E' has not been Notarized and requested the 'Appellant' to resubmit the Form 'E' duly notarized as per the regulations. Further, after the public announcement made on 05.10.2019 in English Newspaper and Kannada (Vernacular language), the Respondent vide letter dated 16.10.2019 stated that as per the public announcement, the last date of filing of the claims by Operational Creditor is on 30.10.2019, and all the Operational Creditors have to submit proof of claim, in respect of liquidation forms that is in Form 'C' duly Notarized, as per regulations of IBC 2016. Further it is also stated by the Respondent in their letter dated 16.10.2019 that "Considering you are Government Department and you had made claims earlier with respect to I....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ion estate does not include the sums due to any workman or employee from the Provident Fund etc. The Learned Counsel for the 'Appellant' also relied upon the Judgment of this Bench, whereby this 'Tribunal' is also of the view that "Para 44" of the said Judgment, reads as:- "However, as no provisions of the 'Employees Provident Funds and Miscellaneous Provisions Act, 1952' is in conflict with any of the provisions of the 'I&B Code' and, on the other hand, in terms of Section 36 (4) (iii), the 'Provident Fund' and the 'gratuity fund' are not the assets of the 'Corporate Debtor', there being specific provisions, the application of Section 238 of the 'I&B Code' does not arise". "Para 45" - Therefore we direct the 'Successful Resolution Applicant', 2nd Respondent ('Kushal Limited') to release full provident fund and interest thereof in terms of the provisions of the 'Employees Provident Funds and Miscellaneous Provisions Act 1952' immediately, as it does not include as an asset of 'Corporate Debtor'. The Impugned Order dated 27.02.2019 approving the 'Resolution Plan' stands modified to the extent above." 21. We completely agree with the Judgment of this 'Tribunal'. In the ab....