AI OCR 
TaxTMI 
TaxTMI 
TaxTMI 
2023 (2) TMI 630
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.... is against the deletion of addition of Rs. 2,75,15,116/- made u/s 68 of the Income Tax Act, 1961 ("the Act") in respect of disallowance of sundry creditors. 3. Facts giving rise to the present appeal are that in this case, the assessee had filed its return of income declaring an income of Rs.32,19,20,154/- on 31.08.2012 through e-mode. The case was selected for scrutiny assessment and the assessment u/s 143(3) of the Act, was framed vide order dated 27.03.2014. The Assessing Officer ("AO") during the course of assessment in order to verify the correctness of the claim of sundry creditors, issued notice u/s 133(6) of the Act. The AO received response from the sundry creditors partly therefore, treating 50% of the creditors as bogus, he made additions of Rs.2,75,15,116/- hence, assessed income at Rs.34,94,35,270/- against the returned income of Rs.32,19,20,154/-. 4. Aggrieved against this, the assessee preferred appeal before Ld.CIT(A). Before Ld.CIT(A), the assessee also filed certain evidence alongwith application under Rule 46A of the Income Tax Rules, 1962 ("the Rules"). Ld.CIT(A) sought Remand Report from the AO and after considering the Remand Report and material placed befo....
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....k equally between and among the following:- (i) workmen's dues for the period of twenty-four months preceding the liquidation commencement date; and (ii) debts owed to a secured creditor in the event such secured creditor has relinquished security in the manner set out in section 52; (c) wages and any unpaid dues owed to employees other than workmen for the period of twelve months preceding the liquidation commencement date; (d) financial debts owed to unsecured creditors; (e) the following dues shall rank equally between and among the following:- (i) any amount due to the Central Government and the State Government including the amount to be received on account of the Consolidated Fund of India and the Consolidated Fund of a State, if any, in respect of the whole or any part of the period of two years preceding the liquidation commencement date; (ii) debts owed to a secured creditor for any amount unpaid following the enforcement of security interest; (f) any remaining debts and dues; (g) preference shareholders, if any; and (h) equity shareholders or partners, as the case may be." It is important to note down here that, in terms of the provisi....
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....on has been upheld by the Supreme Court in the case of PCIT vs Monnet Ispat and Energy Ltd: SLP (C) No 6483 of 2018 (order dated 10.08.2018). The relevant extract of the said decision in this regard is reproduced below: "Given Section 238 of the Insolvency and Bankruptcy Code, 2016, it is obvious that the Code will override anything inconsistent contained in any other enactment, including the Income- Tax Act:" It was similarly held by the High Court of Andhra Pradesh and Telangana in the case of Leo Edibles & Fats Limited vs The Tax Recovery Officer (Central), Income Tax Department, Hyderabad: Writ Petition No.8560 of 2018, that, by virtue of section 238 of the Code, the provisions of the Income-tax Act, 1961 ('the Act') are overridden by the Code in entirety. Infact, the High Court went a step ahead and held that, the Income- tax Department cannot exercise any right of recovery even in respect of assets attached prior to initiation of liquidation process. The relevant extract of the said decision in this regard is reproduced below: 'As rightly pointed out by Mr. Vadeendra Joshi, learned counsel, Section 178(6) of the Act of 1961 starts with a non-obstante clau....
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.... 8. Reliance is placed upon the decision of the Co-ordinate Bench of the Tribunal in the case of M/s. Moserbaer India Ltd. vs DCIT in ITA No.4195/Del/2016 [Assessment Year 2011-12]. 9. We have heard Ld. Authorized Representatives of the parties and perused the material available on record and gone through the orders of the authorities below. We find that there is no dispute with regard to the fact that the assessee company has gone into liquidation, order passed by Ld. NCLT in (IB)- 144(PB)/2017 in the case of ICICI Bank Ltd. vs S.R.Foils & Tissue Ltd. order dated 04.03.2020 has directed as under:- 6. "Though this company petition has been admitted on 07.08.2017, till date neither resolution plan has come for approval before this Bench, nor has this bench decided the liquidation application pending before this Bench despite soon after two and half years passed by now. This objector has come before this Bench asking for another round of invitation of EOI is not acceptable because the CIRP period has already been over on 03.06.2019, therefore, we are of the view that this company petition is fit for passing the liquidation order because it is the CoC that has taken a decision tha....
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....ct by observing as under:- 5.3 "The remand report submitted by the AO is given to the appellant for filing reply. The appellant replied vide-letter dated 18.10.2016 and submitted that an application u/r 46A filed was not strictly related to additional evidence as the concerned confirmation were already on the record before AO. The Ld. AR further stated that it is appropriate to state that rule. 46A was referred only statistical purpose to cover arty negligible default on either part. The Ld. AR further relied upon various case laws plethora of case laws including the decision of Hon'ble Delhi High Court in the case CIT Vs. Virgin Securities & Credits Pvt.Ltd., [332 lTR 396] and Punjab & Haryana High Court in the case of CIT vs Jind Co-op. Sugar Mills Ltd. [335 ITR 43]. It is also submitted that the AO has ignored the copy of the paper book alowntih confirmation of the concerned creditors filed during the assessment proceeding. 5.4 I have carefully gone through the finding of the AO, remand report and submission of the appellant. In the remand report the AO has not given any comment on merit of the additional evidences. The remand report itself is full of contradiction as the A....