TaxTMI 
TaxTMI 
2023 (9) TMI 1385
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....5) of IBC, 2016 read with Rule 11 of NCLT Rules, 2016 by the Appellant / Applicant) passed by the Adjudicating Authority / NCLT Bengaluru Bench. 2. Earlier, the Adjudicating Authority / NCLT Bengaluru Bench while passing the impugned order on 28.06.2023 in IA No. 393/2022 in CP (IB) No. 51/BB/2018 filed by the Appellant / Applicant, u/s 60(5) of the I&B Code, 2016 at paragraph Nos. 8 to 19 had observed the following: - 8. "On perusal of the facts it is observed that the Applicant herein i.e. Asst. Commissioner of Commercial Taxes, LGSTO-150, Bangalore has filed a claim on 21.12.2018 in Form-F for Rs.54,46,13,819/- after adjusting the receipts of Rs.10,36,36,873/- in respect of GST liability and the same has and resultantly, dismissed the 'Application'. Appellant's Submissions 3. According to the Learned Counsel for the Appellant / Applicant, the 'Corporate Debtor', is a 'Company', among other things, engaged in the 'Business of Manufacture and sale of products of wood, cork, straw and plating materials'. In the course of its' Business', the 'Corporate Debtor', had effected taxable supplies of 'Goods' in and from the State of Karnataka and registered under the provisions of th....
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....he claim / demand of Rs. 54,46,13,819/- of the Appellant, and not by indicating the 'claim', in its entirety in the IM, and, therefore, it is obvious that placing reliance upon the decision in State Tax Officer (1) Vs. Rainbow Papers Ltd. Dated 06.09.2022, the 'Information Memorandum', the Resolution Plan, as approved by the 'Committee of Creditors' and the Application filed by R3, 4 and 5 before this Tribunal, all of which merits to be set aside as 'null and void' and 'not in accordance with law', as prayed for by the Appellant. 8. The Learned Counsel for the Appellant, points out that the Adjudicating Authority, had failed to appreciate that the 1st Respondent, had failed to follow the requirements u/s 30(2) of the I&B Code, 2016, which mandates that the 1st Respondent, to ensure that the 'Resolution Plan' conforms to the parameters prescribed in the said provision, in the I&B Code. 9. Advancing his argument, the Learned Counsel for the Appellant, comes out with a plea, that the Adjudicating Authority had not appreciated the decision of the Hon'ble Supreme Court in Ebix Singapore Pvt. Ltd. Vs. Committee of Creditors of Educomp Solutions Ltd. and Anr., reported in (2022) 2 SCC 4....
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.... 1st Respondent as well as the 'Committee of Creditors', comprising of R3, 4 and 5 had ignored the ruling of the Hon'ble Supreme Court in 'Committee of Creditors of Essar Steel India Ltd. Vs. Satish Kumar Gupta & Ors.' Reported in 2020 8 SCC 531,wherein it was observed and held that all claims must be submitted to and decided by the Resolution Professional, so that all prospective resolution applicants know exactly what was to be paid in order that it may then take over and run the business of the Corporate Debtor. 14. According to the Appellant, the Adjudicating Authority, had failed to appreciate that the Respondent No. 1/Resolution Professional, was placing the interest of the 'Corporate Debtor', on a high pedestal, than that of State's interest and hence the information memorandum prepared on 17.10.2019 by the Respondent No. 1 is prejudicial to the State's interest and hence, cannot be allowed to stand. 15. The Learned Counsel for the Appellant, points out that the 'Adjudicating Authority' / 'Tribunal' has failed to taking into account that actions of 1st Respondent, adjudicating, and rejecting the demand of Appellant, of a sum of Rs.54,46,13,819/- in the information memorand....
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....While winding up, the Learned Counsel for the Appellant, prays for setting aside the impugned order dated 28.06.2003 in I.A. No. 393/2022 in CP(IB) No. 51/BB/2018 passed by the 'Adjudicating Authority' / 'Tribunal'. 1st Respondent's 'Pleas' 22. Contending contra, the Learned Senior Counsel for the 1st Respondent, points out that the 1st Respondent had not withdrawn the 'Appeal', filed before this Tribunal and that the said 'Appeal' was dismissed as 'infructuous', as the Hon'ble High Court of Karnataka had set aside the 'Best Judgment Assessment,' orders, passed by the Appellant. Further, the claim of the 'Appellant', was based on the 'Best Judgment Assessment'. 23. According to the 1st Respondent, Appellant, had moved the 'Adjudicating Authority' / 'Tribunal,' with similar reliefs, prayed in his earlier I.A. No. 134/2020, on the basis of Assessment Order quashed on the Hon'ble High Court in its order dated 02.07.2021 and is 'estopped', by the 'Principle of 'Res-Judicata'. 24. It is represented on behalf of the 1st Respondent, that the 'Adjudicating Authority', had rightly held, that the Appellant, is not a 'secured creditor', and that the decision of the Hon'ble Supreme Court i....
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...., 1956, the Recovery of Debts Due to Banks and the Financial Institutions Act, 1993, the Securitisation and Reconstruction of Financial Assets and the Enforcement of Security Interest Act, 2002 and the Insolvency and Bankruptcy Code, 2016, be the first charge on the property of the assesse or the person, as the case may be. 8. From the usage of the words 'save as provided in' in Section 11E is in the nature of an exception intended to exclude the class of cases, mentioned in Companies Act, 1956, 'The Recovery of Debts due to Banks and the Financial Institutions Act, 1993', 'SARFAESI Act, 2002' and 'I & B Code, 2016'. The 'Secured Interest' as defined under the Code excludes charges created by Operation of law. Section 11E of the Central Excise Act, 1944 is distinct from the provisions of the 'Gujarat VAT Act, 2003' and therefore, the decision in the matter of 'State Tax Officer Vs. Rainbow Papers Limited', (Supra) cannot be made applicable to the facts of this case. It is also pertinent to mention that the Master Circular No.1053/02/2017-CX, issued by the Ministry of Finance, Department of Revenue, Central Board of Excise and Customs specifies that dues under 'Central Excise Act,....
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....ellant / Petitioner, for Rs.54,46,13,819/-; in admitting the 'whole claim', and to 'suitably', revised the 'Information Memorandum' and 'Expression of Interest', in the 'CIRP', of the 'Corporate Debtor', after taking into consideration of its claim for Rs.54,46,13,819/-. 30. It transpires that the Adjudicating Authority / Tribunal, had dismissed the I.A. No. 134/2020, with a direction being issued to the 'Commercial Taxes Department', to place before the 'Resolution Professional', only 'ascertained' 'crystalised Demand' that might have arisen from a regular assessment for the period under consideration and that the 'Resolution Professional' is to place the same, before the Committee of Creditors/ reconstituted Committee of Creditors for its considerations. 31. It cannot be brushed aside, that in IA No. 393/2022 in CP(IB) No.51/BB/2018, (Filed by the Appellant / Petitioner under Section 60(5) of the Code, 2016, read with Rule 11 of the NCLT Rules, 2016), a declaration was sought in respect of the Resolution Plan, approved by the Committee of Creditors, based on the 'Information Memorandum' prepared by the 1st Respondent / Resolution Professional, as 'null and void', since, the 'pl....
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....n the one hand, and dues payable to the government on the other clearly signifies Parliament's intention to treat the latter differently - and in the present case, having lower priority. As noticed earlier, this intention is also evident from a reading of the preamble to the Act itself. 51. According to the principles of statutory interpretation, when an enactment uses two different expressions, they cannot be construed as having the same meaning. It was held in Member, Board of Revenue v. Anthony Paul Benthall36 that: "When two words of different import are used in a statute, in two consecutive provisions, it would be difficult to maintain that they are used in the same sense..." This idea is reflected in a subsequent judgment in Brihan Mumbai Mahanagarpalika & Anr. v. Willington Sports Club & Ors." 52. The views expressed by the present judgment finds support in the decision reported as Sundaresh Bhatt, Liquidator of ABG Shipyard v. Central Board of Indirect Taxes and Customs38. In that case, Section 142A of the Customs Act 1962 was in issue - authorities had submitted that dues payable to it were to be treated as 'first charge' on the property of the assessee concerned. ....
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....th the position discussed in Sundaresh Bhatt and Duncan Industries (supra) [refer also: Innoventive Industries (supra), CIT v. Monnet Ispat & Energy Ltd. 40, Ghanashyam Mishra & Sons (P) Ltd. v. Edelweiss Asset Reconstruction Co. Ltd. 41, and Jagmohan Bajaj v. Shivam Fragrances Private Limited. 53. In view of the above discussion, it is held that the reliance on Rainbow Papers (supra) is of no avail to the appellant. In this court's view, that judgment has to be confined to the facts of that case alone." 35. It is to be remembered that the 'Hon'ble High Court Karnataka', had set aside all the 'Assessment Orders', (vide order dated 02.07.2021 in WP No.45290/2019) issued by the Appellant / Petitioner relating to the period September, 2017 to December, 2018, and directed the 'GST Department' to 'process' the Return, filed by the 'Corporate Debtor' in accordance with law, however, the GST Department had not adhered to the Hon'ble High Court's order dated 02.07.2021, in WP No.45290/2019 and had not made any Regular Assessment' in accordance with the Returns Filed. 36. As far as the present case is concerned, this Tribunal, ongoing through the impugned order dated 28.06.2023, in IA N....