2023 (3) TMI 508

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.... seizure operation conducted under section 132 of the Income-tax Act, 1961 (for short 'the Act') in case of the assessee, proceedings under section 153A was initiated against the assessee for the impugned assessment years. Subsequently, assessment orders were passed under section 143(3) read with section 153A of the Act enhancing the income declared by the assessee after making a number of additions. Against the assessment orders so passed, the assessee preferred appeals before learned Commissioner (Appeals). While deciding the appeals, learned Commissioner (Appeals) granted partial relief to the assessee. Being aggrieved with the decision of learned Commissioner (Appeals), both, the assessee and the Revenue went in appeal before the Tribunal. The appeals were disposed of by the Tribunal by deleting certain additions made by the Assessing Officer. Whereas, issues relating to some other additions were restored back to the Assessing Officer for fresh adjudication. In the fresh assessment proceedings in pursuance to the direction of the Tribunal, as alleged by the Assessing Officer, the assessee did not respond to the notices issued and queries raised seeking information and details. ....

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....ders passed despite the moratorium imposed by NCLT are invalid in the eye of law. 7. Without prejudice, he submitted, the NCLT, in the meanwhile has passed the final order on 24.07.2018 in case of the assessee, wherein, taking note of the fact that there is huge difference in the total amount of secured financial creditors and the liquidation value of the company, the NCLT applied the waterfall mechanism provided under section 53 of the IBC Code and determined the liquidation value due to unsecured financial creditors, operational creditors and other creditors of the assessee as NIL. Thus, he submitted, in view of the final order of the NCLT, the present demands having been written off, hence, no more enforceable, as, they have been extinguished. Thus, he submitted, the assessment orders have to be declared as null and void. He submitted, under identical facts and circumstances, the Tribunal in two separate orders has dismissed the appeals of the Revenue for assessment years 2005-06, 2006-07, 2007-08 and 2013-14. 8. Learned Departmental Representative submitted, in course of assessment proceedings the assessee neither appeared nor furnished the necessary details as called for....

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.... (VI) That this Bench hereby appoints Mr. Sunlit Binani, Room No4 46 Floor 24, Commerce House, Ganesh Chandra Avenue, Kolkata 700013, Registration No. IBBI/IPA-0014F-N0000512016- 2017/10025 as Interim Resolution Professional to carry the functions as mentioned under Insolvency 6z Bankruptcy Code. 10. In terms with the IBC Code, an IRP was appointed by NCLT. By the time, the assessment proceedings were taken up in pursuance to the direction of the Tribunal for the impugned assessment years, the moratorium order of the NCLT has already been passed and IRP has been appointed. In such a scenario, the assessee had no locus standi to appear in the assessment proceedings. A reading of the assessment orders clearly reveal that in pursuance to the statutory notices issued by the Assessing Officer, the IRP, vide letter dated 11.12.2017, has clearly intimated the fact of moratorium imposed by the NCLT as well as the order passed by Hon'ble Delhi High Court dismissing the appeals of the Revenue on the ground that in view of the moratorium imposed by NCLT proceedings cannot continue. Therefore, the submission of learned Departmental Representative that necessary details called for by ....

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.... 191,351,015 Total 122,660,006,561 114,780,950,325 6. The Resolution Professional determined the liquidation value of the company as 2356,35,25,186, but whereas the total amount of admitted secured financial creditors is Rs.9772 crores and the admitted claims of the unsecured financial creditors Is Rs.1243 crores, put, together it would come to Rs.11,478,09,50,325. By this difference the liquidation value of the asset of the Corporate Debtor is not even sufficient to satisfy the admitted claim of secured financial creditors In full and therefore, the liquidation value due to the unsecured financial creditors, operational creditors and other creditors of the Corporate Debtor as per the waterfall mechanism mentioned under Section 53 of the Code is NIL. In the backdrop of it, the Resolution Plan approved by the COC discloses that the Resolution Applicant would make an upfront payment of amount equivalent to Rs. 2457 crores (less the liquidation value paid to the dissenting secured financial creditors) to the assenting secured financial creditors on pro rata basis alongwith conversion of an amount of Rs. 215.20 crores Into equity shares of the Corporate 'Debtor ....

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....e been fully extinguished and reduced to Nil in the final order of the NCLT. Taking note of the aforesaid factual position, the Coordinate Bench, while deciding Revenue's appeal in assessment year 2013-14 vide order dated 16.08.2021 passed in ITA No.173/Del/2018 has held as under: "5. We have gone through the record in the light of submissions made on either side. Dues to the Income-tax Department are reflected in list - B appended to the order dated 24.07.2018 passed by the NCLT. By such order, NCLT observed that there is a huge difference in the total amount of admitted secured financial creditors which is to the tune of Rs.1,14,78,09,50,325/- and the liquidation value of the company to the tune of Rs.23,56,35,25,186/- and therefore, by application of the waterfall mechanism mentioned in section 53 of the Code, the liquidation value due to unsecured financial creditors, operational creditors and other creditors of the assessee becomes nil. It is clear that in terms of the resolution plan as approved by the NCLT, all claims or demands or liabilities or obligations owed or payable to or assessed by or assessable by the Central Government/State Government in relation to any....