2022 (10) TMI 885

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.... the Deputy Commissioner of Sales Taxes and Excise (Himachal Pradesh) seeking a relief for setting aside the order dated 25.04.2019 passed by the Respondent levying Rs. 12,27,77,844/- as failure to pay tax, interest and penalty and for a direction against the Respondent to remove the lien created over the factory premises and landed property Khasra No. 167/177 962.18 bhigas) at Trilokpur Road, Kala Amb, Himachal Pradesh and after hearing the parties, the Adjudicating Authority vacated the lien marked on the Corporate Debtor on 13.05.2019 for two reasons: i. It being subsequent to the admission of the company petition; and ii. This order will not have any primacy over the overriding effect covered under Section 238 of the IBC and allowed the application filed by the Liquidator vacating the lean marked on asset of the Corporate Debtor on 13.05.2019. 2. The facts giving rise to this Appeal are as follows: i) That one M/s Case Cold Roll Forming Ltd. (Corporate Debtor) is a dealer registered under the Himachal Pradesh Value Added Tax, 2005 and the Central Sales Tax, 1956, for manufacturing Telecom Towers/Transmission Towers and Guard Rails etc. Assessment proceeding for the years ....

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....dice to its statutory rights. vii) Further case is that the Respondent in absence of resolution plan, the Committee of Creditors decided to resolve for Liquidation of the Corporate Debtor and the Adjudicating Authority vide its order dated 05.11.2019 passed an order of liquidation of the Corporate Debtor under Section 33(1) of the IBC and appointed the Respondent, Mr. Sanjay Gupta, as the Liquidator. viii) The Appellant in response to the Respondent's letter dated 14.11.2019 again filed its claim under Form-C on 20.11.2019. In the meanwhile, an application was filed by the Respondent / Liquidator being IA No. 1428/2020 in Company Petition No. 473(PB)/2018 praying, inter-alia, setting the orders dated 25.04.2019 passed by the Appellant levying Rs. 12,27,77,844/- and for directions to remove the lien marked over the immovable property of the Corporate Debtor and after hearing the parties the Adjudicating Authority by its impugned order dated 01.10.2020 allowed the application filed by the Respondent/Liquidator and vacated the lien marked on the asset of the Corporate Debtor on 13.05.2019 for two reasons: i. It being subsequent to the admission of the company petition; and ii. T....

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.... 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." 6. It is further submitted that another judgment in the case of "State Bank of Bikaner and Jaipur Vs National Iron and Steel Rolling Corporation & Ors. Reported in (1995) 2 SCC 19", the Hon'ble Supreme Court was considering the supremacy of 'statutory first charge' under Section 11AAAA of Rajasthan Sales Tax Act, 1954 over an existing mortgage. The provisions of Section 11AAAA are pari material with Section 26 of the HP VAT Act, which is tabulated hereunder: Rajasthan Sales Tax Act, 1954 "11-AAAA. Liability under this Act to be the first charge.- Notwithstanding anything to the contrary contained in any law for the time being in force, any amount of tax, penalty, interest and any other sum, if any, payable by a dealer....

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....red in its observation that Section 53 of the IBC over-rides Section 48 of the GVAT Act. Section 53 of the IBC begins with a non-obstante clause which reads :- "Not withstanding anything to the contrary contained in any law enacted by the Parliament or any State Legislature for the time being in force, the proceeds from the sale of the liquidation assets shall be distributed in the following order of priority..........." 56. Section 48 of the GVAT Act is not contrary to or inconsistent with Section 53 or any other provisions of the IBC. Under Section 53(1)(b)(ii), the debts owed to a secured creditor, which would include the State under the GVAT Act, are to rank equally with other specified debts including debts on account of workman's dues for a period of 24 months preceding the liquidation commencement date. 57. As observed above, the State is a secured creditor under the GVAT Act. Section 3(30) of the IBC defines 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 Aut....

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....ng communicated to all subordinate Courts/Tribunals within their respective jurisdiction." 11. The Ld. Counsel for the Appellant submitted that the present Appeal was filed on 23.03.2021, therefore, the delay, if any, covered by directions passed by the Hon'ble Supreme Court in Suo-Motu Writ Petition (Civil) No. 03/2020. 12. After hearing the parties and having gone through the aforesaid orders, we are of the view that this Appeal is covered by directions passed by the Hon'ble Supreme Court, therefore, the delay, if any, is condoned. I.A. No. 780 of 2021 is hereby allowed. 13. The Ld. Counsel for the Respondent submitted that Section 238 of the IBC provides overriding effect to the provisions of the Code over all other laws in the Country including the provisions of the Income Tax Act, 1961. In view of the facts and circumstances, the Adjudicating Authority has rightly passed the impugned order, therefore, there is no merit in the present Appeal, the Appeal is fit to be dismissed. 14. The Ld. Counsel for the Respondent further during the course of argument and in his reply affidavit in the merits of the present appeal along with written submissions submitted tha....