TaxTMI 
TaxTMI 
2022 (8) TMI 879
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....ections be issued to respondent No. 1-Kotaka Mahindra Bank to lift the lien from the account bearing No. 1211116245 belonging to the Corporate Debtor for an amount of Rs. 62,24,082/-, which was imposed in view of the order dated 02.07.2019 passed by respondent No. 2 i.e. Authorised Officer of the EPFO with the further direction to the respondent No. 2 to hold the proceedings initiated against the corporate debtor in view of the EPF and MP Act, 1952 and to file its claim with the Resolution Professional for the proper adjudication in view of the provisions of IBC, 2016. 3. It is stated that the corporate debtor defaulted on a payment of Rs. 62,24,082/- comprising a sum of Rs. 26,48,660/- assessed towards the damages under Section 14B of EPF and MP Act, 1952 and a sum of Rs. 35,75,422/- assessed as interest under Section 7Q of the aforesaid Act. In view of this default, the Authorised Officer of the Employees Provident Fund Organization (EPFO) exercised its power under Section 8B of the EPF and MP Act, 1952 and wrote a letter dated 02.07.2019 to the respondent No. 1-Kotak Mahindra Bank, where the corporate debtor maintained a current account bearing No. 1211116245 to remit the amoun....
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....ceedings as a moratorium imposed by the admission order dated 29.10.2019 by this Adjudicating Authority was in force. It is further stated that the letter dated 02.07.2019 by EPFO was rightly issued to the Bank by the competent authority under Section 8F of EPF & MP Act, 1952. It is also mentioned that Resolution Professional's request by his letter dated 21.01.2020 to lift the lien on the current account of the corporate debtor was against the provision of EPF & MP Act, 1952 and the provisions of the IBC, 2016 as the matter was finalized before the admission order dated 29.10.2019 and the amount would have already been realized if the bank has complied with the direction of the EPFO by order dated 02.07.2019. Thus, it was submitted that the present application is not maintainable because the Resolution Professional is trying to exercise authority beyond his jurisdiction and in contravention to the provisions of EPF & MP Act, 1952 and IBC, 2016. 6. The only additional fact submitted by the applicant's replication filed by Diary No. 01064/4 dated 23.11.2021, is that the Hon'ble Supreme Court and the Hon'ble NCLAT have in a number of matters held that the Code being ....
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....or the officer so authorised, as the case may be: Provided that nothing in this sub-section shall apply to any part of the amount exempt from attachment in execution of a decree of a civil court under section 60 of the Code of Civil Procedure, 1908 (5 of 1908). (3)(i) The Central Provident Fund Commissioner or any other officer authorised by the Central Board in this behalf may, at any time or from time to time, by notice in writing, require any person from whom money is due or may become due to the employer or, as the case may be, the establishment or any person who holds or may subsequently hold money for or on account of the employer or as the case may be, the establishment, to pay to the Central Provident Fund Commissioner either forthwith upon the money becoming due or being held or at or within the time specified in the notice (not being before the money becomes due or is held) so much of the money as is sufficient to pay the amount due from the employer in respect of arrears or the whole of the money when it is equal to or less than that amount. xxx xxx xxxx xxx xxxx (4) The Central Provident Fund Commissioner or the officer authorised by the Central Board in this beha....
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....s indicate that an enquiry under section 14B/7Q of the EPF and MP Act, 1952 was concluded and demand of 62,24,082/- was issued against the Establishment for the dues for the period from 09-02-2018 to 20-12-2019 and also for failure to deposit the PF amount. This amount also included damages under Section 14-B and interest under section 7Q of the Act. As the same was not deposited in time by the establishment, an attachment order under Section 8F was issued on 02.07.2019 to Kotak Mahindra Bank., which in turn marked a lien for Rs. 62,24,082/- but did not deposit the amount with the office of the EPFO. Subsequently, another notice under Sections 7Q/14B was issued on 17.01.2020 for an amount of Rs. 1,32,15,962/-. The records also indicate that the Resolution Professional has issued letters dated 21.01.2020 and 30.01.2020 to the EPFO pointing out that the demands for recovery are in the teeth of the provisions of Section 14(1)(c) of the IBC, 2016 inter alia provides for a moratorium during the CIRP, which is out-rightly prohibits (c) any action foreclose, recover or enforce any security interest created by the corporate debtor in respect of its property. 10. We are conscious of the de....
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....(4)(a)(iii) of the I & B Code, 2016 e. In this context, the following judgments are also referred to: i. The judgment of this Tribunal (3 Members Bench - comprising of Hon'ble Chairperson & two Members) in C.A. (AT)(Ins) No. 354 of 2019, decided on 19th August, 2019 Tourism Finance Corporation of India Ltd. Vs. Rainbow Papers Ltd. & Ors. given below: "44. However, as no provisions of the 'Employees Provident Funds and Miscellaneous Provision 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. 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 Provision Act, 1952' immediately, as it does not include as an asset of the 'Corporate Debtor'. The impugned orde....