2022 (9) TMI 425

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....ies, the matters have been heard finally. 3. The following substantial questions of law are proposed for adjudication in these revisions:- A. Whether in the facts and circumstances of the case, the learned Rajasthan Tax Board exercised its jurisdiction excessively and with material irregularity by ignoring the order dated 14.11.2018 passed by NCLAT, New Delhi read with the resolution plan and as well as not adhering to the orders passed by Hon'ble Supreme Court dated 26.07.2019 & 19.05.2020 & 24.01.2020 and the judgment dated 07.04.2020 of the Hon'ble Division Bench of Rajasthan High Court in true spirit of law and in rejecting the prayer to refund the amount paid as pre-deposit with the appeals (along with interest)? B. Whether in the facts and circumstances of the case, the learned Rajasthan Tax Board wrongly exercised its jurisdiction and acted with material irregularity as on one hand it has held that in view of order dated 14.11.2018 passed by NCLAT, New Delhi read with the resolution plan and orders passed by Hon'ble Supreme Court dated 26.07.2019 and 19.05.2020 and 24.01.2020 and the judgment dated 07.04.2020 of the Hon'ble Division Bench....

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....ts Resolution Plan and upon being declared the successful resolution applicant, the present petitioner took over the company Binani Cement Limited. 7. In terms of the approved Resolution Plan, all liabilities of the sick unit, except those admitted by the NCLAT, as they existed prior to acceptance of the Resolution Plan stood wiped off. This proposition of law has been enunciated by Hon'ble Supreme Court in the case of State of Gujarat Vs. Essar Steel Ltd. 8. Despite acceptance of the petitioner's Resolution Plan, the GST Department continued to raise demands for the period prior to acceptance of the Resolution Plan, upon which Writ Petition No. 9480/2019 (Ultra Tech Nathdwara Cement Ltd. Vs. Union of India & Ors.) came to be filed on behalf of the petitioner in this court, which was accepted vide order dated 07.04.2020 and the demands raised by the GST Department were quashed as being contrary to the IBC and the Judgment of Hon'ble Supreme Court in the case of Essar Steel Ltd. (supra). The said judgment of this court has attained finality. 9. Pursuant to acceptance of its Resolution Plan, the petitioner stepped into the shoes of the original appellant M/s. Bin....

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.... Department against the defaulting unit M/s. Binani Cement Ltd. had been extinguished over and above the amount of Rs. 61.05 crores approved under the Resolution Plan. He pointed out that all existing liabilities of the unit prior to the acceptance of the Resolution Plan have been disposed off by the Commercial Taxes Department by a formal order dated 12.08.2021. Thus, the Department has no subsisting claim against the unit beyond the sum of Rs. 61.05 crores. If the respondent Department is permitted to retain the amounts paid towards mandatory statutory obligation with the appeals, it would amount to unjust enrichment of the Department, which is not at all warranted. In support of his contentions, Dr. Acharya relied upon the following judgments:- 1. Ghanashyam Mishra and Sons Private Limited v. Edelweiss Asset Reconstruction Company Limited [2021] 91 GSTR 28 (SC) ; [2021] 227 Comp Cas 251 (SC) ; [2021] SCC Online SC 313. 2. GGS Infrastructure Private Limited v. Commissioner of CGST and Central Excise [2022] 100 GSTR 386 (Bom) ; [2021] 13 Comp Cas-OL 200 (Bom) (WP-LD-VC-NO. 268 of 2020) decided on December 22, 2020). 3. Jagat Janani Services v. Goods and ....

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....ject to the provisions of section 86, an appeal against any order of an Assistant Commissioner, a Commercial Taxes Officer, an Assistant Commercial Taxes Officer or Junior Commercial Taxes Officer or Incharge of a check-post or barrier shall lie to the appellate authority. (2) The appeal shall be presented within sixty days of the date on which the order sought to be appealed against is communicated; but the appellate authority may admit an appeal even after the said period of sixty days if it is satisfied that the appellant had sufficient cause for not preferring the appeal within the said period. (3) Notwithstanding anything contained in sub-section (4) of section 38, no appeal under this section shall be entertained unless it is accompanied by a satisfactory proof of the payment of tax and other amounts admitted by the appellant to be due from him or of such installment thereof as might have become payable and in case of an appeal from an ex-parte assessment order, five percent of, and in other cases ten percent of the 'disputed tax amount'." (Emphasis supplied) (4) Notwithstanding that an appeal has been preferred to the appellate aut....

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....djustment against the tax or other sum due in respect of any tax period. **** (2) Notwithstanding anything contained in this Act, where a registered dealer files a return and claims refund on account of sales in the course of export outside the territory of India, the assessing authority or officer authorized by the Commissioner may require such dealer to furnish such documents as may be prescribed and after having been satisfied shall within thirty days from the date of such claim, grant the dealer a refund in cash.  (3) Where an amount or tax is collected from any person who is not registered under this Act and such amount or tax is not found payable by him, or where an amount in lieu of tax for any works contract is deducted in any manner by an awarder from any bill of payment to a contractor, who is not liable to pay tax under this Act, the amount so collected or deducted shall be refunded in the prescribed manner by the Assistant Commissioner or the Commercial Taxes Officer, as the case may be, in whose territorial jurisdiction such person or contractor ordinarily resides; and where such person or contractor does not reside in the State, then su....

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....ow for the sake of ready reference:- "27. Refund. - (1) (a) Subject to the provisions of sub-section (2) of section 17, section 53 and section 54, the assessing authority or the authorised officer, after having verified the fact of deposit of such amount, is satisfied that the payment made by a dealer or a person is in excess of any tax, penalty, interest or other sum due, as a result of an assessment made or in pursuance of an order passed by any competent officer, authority or court, such assessing authority or authorised officer, either suo motu or on an application made in this behalf in Form VAT-20 or VAT-21 or VAT-22 as the case may be, shall pass an order for refund within fifteen days of such assessment or receipt of such order or receipt of completed application. Refund order shall be passed in favour of a dealer or a person who has account in a bank having core banking system (CBS) in Form VAT-23A, and in case of others in Form VAT-23." 19. On going through the aforesaid provisions of the Act of 2003 and the Rules of 2006, it becomes clear that mandatory statutory obligation pre-deposit with the appeal comprises of a proportion of VAT liability imposed upon th....

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....s with the liabilities of the unit towards the Department having been settled by the NCLAT. The withdrawal of the appeals was as good as acceptance because in effect, all the outstanding liabilities of the Department stood disposed of, by virtue of the Department's order dated 12.08.2021. 23. Once the tax liability raised by the Department had been fixed by effect of acceptance of Resolution Plan, manifestly, the Department could not hold on to any payment made by the assessee in excess of what has been approved under the Resolution Plan, i.e. Rs. 61.05 crores. The reasoning given by the Tax Board in the impugned orders that the amount deposited by the assessee by way of statutory pre-deposit was not a part of the Resolution Plan is absolutely without foundation for the simple reason that this amount was a proportion of the tax liability fixed on the assessee and once the total tax liability has been quantified by the NCLAT, any amount paid by the assessee over and above such amount would have to be reimbursed as per Section 53 (3) (3A) of the Act of 2003 read with Rule 27 of the Rules of 2006. 24. The Tax Board held that the burden of establishing that the amount deposit....

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....nds which they may contemplate for the period prior to the resolution plan being finalized. The demand notices are ex-facie illegal, arbitrary and per-se and cannot be sustained. Accordingly, the impugned demand notices and orders viz. notice dated 11.2.2019 (Annex. 10), letter dated 7.9.2018 (Annex. 11), order dated 20.3.2019 (Annex. 12), notice dated 6.3.2019 (Annex. 13), notice dated 8.3.2019 (Annex. 14), notice dated 29.3.2019 (Annex. 15), notice dated 29.3.2019 (Annex. 16), notice dated 10.4.2019 (Annex. 18), order dated 9.4.2019 (Annex. 19), two notices dated 11.6.2019 (Annex. 20) and any further demands pending as on the date of finalization of the resolution plan issued/raised by the respondents Central Goods and Service Tax Department, Govt. of India are quashed and struck down." 26. Drawing analogy from the conclusions drawn by this court in the judgment dated 07.04.2020, any demand made by the State Commercial Taxes Department in excess of that approved by the NCLAT would have to be struck off and if any amount has already been received over and above what has been approved under the Resolution Plan, the same would have to be refunded. 27. The Com....

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....spect of the debts owed to them. In order to remedy the said mischief, the legislature thought it appropriate to clarify the position, that once such a resolution plan was approved by the Adjudicating Authority, all such claims/dues owed to the State/Central Government or any local authority including tax authorities, which were not part of the resolution plan shall stand extinguished. ..... 95. In the result, we answer the questions framed by us as under: (i) That once a resolution plan is duly approved by the Adjudicating Authority under subsection (1) of Section 31, the claims as provided in the resolution plan shall stand frozen and will be binding on the Corporate Debtor and its employees, members, creditors, including the Central Government, any State Government or any local authority, guarantors and other stakeholders. On the date of approval of resolution plan by the Adjudicating Authority, all such claims, which are not a part of resolution plan, shall stand extinguished and no person will be entitled to initiate or continue any proceedings in respect to a claim, which is not part of the resolution plan; (ii) 2019 amendment to Section 31....

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....34. As a consequence, the consolidated impugned order dated 28.12.2020 passed by the Rajasthan Tax Board, Ajmer in the appeals filed by the petitioner is set aside to the extent the applications filed by the petitioner for refund of pre-deposit amounts with interest were rejected. The amounts deposited by M/s. Binani Cement Ltd. as mandatory statutory obligation while filing the appeals before the Tax Board shall be reimbursed to the petitioner within a period of three months from today with interest at the rate applicable by law. 35. The revisions are allowed in these terms. ============= Document 1 "(vii) अपीलार्थी के विरूद्ध सृजित और इन अपीलों में विवादग्रस्त मांग 479,73,13,819/- राशियों की वैधता माननीय सर्वोच्च न्यायाà¤....

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.... विरुद्ध कुल बकाया मांग में से केवल रूपये 61.05 करोड़ की वसूली करने के ही अधिकार हैं। अतः हस्तगत अपीलों में अपीलीय प्राधिकारी द्वारा पुष्ट मांग वैध एवं अंतिम (Legal & Final) तो हो है लेकिन इसमें से विभाग को केवल रूपये 61.05 करोड़ की वसूलने का अधि....

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....¿à¤• दायित्व (Mandatory Statutory Obligation) के निर्वहन में रिफण्ड चाही जा रही राशि जमा करवायी गयी है। स्टेट्यूटरी क्रेडिटर को राशि जमा कराना अपीलार्थी का दायित्व (Liability) हो सकता है परिसम्पत्ति (Asset ) नहीं । अपीलार्थी इकाई रुग्ण (Sick ) नहीं होती और हस्तगत अपीलों में अ....

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....¤•à¤¾à¤° किया गया है। प्रत्यर्थी विभाग द्वारा एन.सी.एल.ए.टी. के समक्ष प्रस्तुत अपने क्लेम रूपये 479,73, 13,819 /- में अपील पेश करने हेतु अपीलार्थी द्वारा आज्ञापक रूप से जमा करायी गयी राशि को शामिल नहीं किया गया तथा दावा केवल तत्समय अदत्त (unpaid ) राशि के à....

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....अपीलार्थी द्वारा जमा करायी गयी राशि अपीलार्थी को लौटाने योग्य नहीं है । फलस्वरूप इस राशि के रिफण्ड की प्रार्थना के सम्बन्ध में अपीलार्थी के विविध प्रार्थना-पत्र अस्वीकार किये जाते है । " Document 3 में "अतः IBC 2016 के प्रावधानों (विशेष Section 238 ) के à....