TaxTMI 
TaxTMI 
2022 (10) TMI 742
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....e (NOC) to the Liquidator and Director of Industries in order to register the properties and allowed the application filed by the Liquidator under Section 60(5) of the Insolvency and Bankruptcy Code, 2016 (for short IBC). 2. The facts giving rise to this Appeal are as follows: i) The Excise and Taxation Officer Flying Squad, South Zone Parwanoo (office of Appellant No. 2) vide letter dated 05.02.2016 issued to Dy Director Industries, Baddi (Appellant No. 3) directed that the property of M/s Biotropics Pharma Private Limited be debarred for sale/transfer in the interest of Government revenue as the dealer has made a default of additional demand under the HP VAT Act, 2005 and this was done in terms of Section 25 and 26 of the HP VAT Act, 2005. ii) The Corporate Insolvency Resolution Process (For short CIRP) was initiated against M/s Biotropics Pharma Private Limited - Corporate Debtor and Mr. Naresh Kumar Sood, the Liquidator initially appointed as Interim Resolution Professional in the matter. The IRP sent a letter on 16.04.2018 (Annexure A/3 of the Appeal) to Assistant Commissioner, Sales Tax Department intimating the last date of submission of claims is 25.04.2018. iii) Pursua....
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....e sale mode the following immovable properties comprised of land and building of the Corporate Debtor. a. Unit 1 & 2 at Plot No. 76/II (hereinafter referred to as 'Plot No. 76/II) DIC Industrial Area, Baddi, District, Solan, Himachal Pradesh-173205 sold to M/s Global Merchandise (A Partnership Firm) and b. Unit III at Plot No. 17 and Plot No. 18 (hereinafter referred to as 'Plot No. 17 & 18) at APCIA, Katha, Bhatolikam, Baddi, Himachal Pradesh-173212 sold to Packzone Industries Private Limited. ix) The Appellants appeared and filed his reply affidavit along with written submissions before the NCLT in which the Appellants taken plea that the claim of the Appellants within the knowledge of Respondent whereby the Appellants have been intimated the Respondent vide letter dated 15.06.2018. Despite these facts, the impugned order was passed and Appellants were also directed to issue No Objection Certificate to the Respondent. Hence this Appeal. Submissions on behalf of the Appellants 3. The Ld. Counsel for the Appellants during the course of argument and in his memo of Appeal along with written submissions submitted that the Adjudicating Authority while passing impugned order fail....
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....other amount, if any, payable by a dealer or any another person under this Act, shall be the first charge on the property of the dealer, or such person." Himachal Pradesh Value Added Tax Act 2005 "26. Tax, penalty and interest to be first charge on property. Notwithstanding anything to the contrary contained in any law, any amount of tax and penalty including interest, if any, payable by a dealer or any other person under this Act shall be a first charge on the property of the dealer or such other person." 7. It is further submitted that Section 26B of the Kerala Sales Tax is same to Section 26 of HP VAT Act, 2005. In Central Bank's case the Hon'ble Supreme Court was pleased to hold that the 'first charge' referred to in the State law would prevail over the Central Act i.e. DRT and Securitisation Act. The relevant paragraphs from the judgment of the Hon'ble Supreme Court are paras 111, 112, 113, 126, 129, 130 and 131. 8. It is further submitted that the issue is now settled by the Hon'ble Supreme Court vide judgment dated 06.09.2022 in the case of "State Tax Officer (1) Vs. rainbow Papers Limited bearing Civil Appeal No. 1661 of 2020". While dealing with Section....
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....efines secured creditor to mean a creditor in favour of whom security interest is credited. Such security interest could be created by operation of law. The definition of secured creditor in the IBC does not exclude any Government or Governmental Authority." 9. The Ld. Counsel for the Appellant submits that in view of the submissions and judgment passed by the Hon'ble Supreme Court the impugned order is fit to be set aside and the Appeal be allowed. Submissions on behalf of the Respondent 10. The Ld. Counsel for the Respondent during the course of argument and in his reply along with written submissions submitted that the Section 238 of the IBC overrides other laws. As per Section 77(3) of the Companies Act, 2013 liquidator cannot take into account any charge, unless it is duly registered with the ROC. 11. It is further submitted that the Adjudicating Authority has rightly observed and held in para 12 of the impugned order which is hereunder: "As to the facts of the present case, it is seen that the Respondent has filed a claim before the Liquidator, and from the written submission filed by the Liquidator, it is seen that the Liquidator has accepted the claim of 2nd Responden....
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.... that as long as the asset is declared as part of Liquidation Estate, it has to be governed by IBC not by some other enactment". Further, in para 12 of the impugned order the Adjudicating Authority taken note of the fact that the Respondent (the Appellant herein) has filed a claim before the Liquidator and the Liquidator accepted the claim of 2nd Respondent and included his name in the list of stakeholders. As per Regulation 21A of the IBBI (Liquidation Process) Regulation, 2016 the secured creditor has to inform the Liquidator of its decision to relinquish its security interest to the liquidation estate or to realize its security interest in the prescribed Form and if the secured creditor has failed to intimate its decision within thirty days from the liquidation commencement date, the assets covered under the security interest shall form part of the Liquidation estate. Admittedly in the present case, 2nd Respondent has filed its claim before the Liquidator which came to be admitted by the Applicant to the tune of Rs. 1,22,70,000/- as 'operational debt'. Further, held once 2nd Respondent has submitted himself to the liquidation process, he cannot exercise any charge over the prope....