2023 (11) TMI 201

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....der Section 142(1) of the Income Tax Act, 1961 [in short, "1961 Act"]. This order was passed under Section 272A(1)(d) of the 1961 Act. Via the said order, RGPCL has been mulcted with a penalty of Rs. 10,000/-. The demand notice dated 22.11.2019 seeks to recover the said amount. 1.2 The second set comprises the impugned order and demand notice bearing the same date, i.e., 06.12.2019. The assessment order dated 06.12.2019 has been framed under Section 143(3) of the 1961 Act and concerns Assessment Year (AY) 2017-18. Via the said assessment order, RGPCL's income was assessed at Rs. 28,93,60,000/-against a loss declared by it amounting to Rs. 3,13,43,192/. The aforesaid assessed income resulted from an addition of an equivalent amount under Section 68 of the 1961 Act vis-à-vis unexplained credits. The Assessing Officer (AO), via the same assessment order, also initiated penalty proceedings against RGPCL under Section 271AAC of the 1961 Act. 1.3 Accordingly, a demand amounting to Rs. 12,05,47,497/- was raised via notice dated 06.12.2019. RGPCL was granted 30 days to defray the tax demand. 1.4 For convenience, the penalty order passed on 21.11.2019, the demand notice date....

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....own, secured or unsecured, disputed or undisputed, whether or not set out in the provisional balance sheet, the balance sheets of the company or the profit and loss account statements of the company of the list of creditors, shall in accordance with Regulation 37 of the CIRP Regulations, be deemed be written off in full and be permanently extinguished by virtue of the order of the Adjudicating Authority approving this Resolution Plan, and the Company and the Resolution Applicant shall at no point of time be, directly or indirectly, held responsible or liable thereto." 7. Apparently, a revised financial proposal was submitted by KCPL on 28.06.2018. The revised resolution plan of KCPL, which included the financial proposal, was accepted by the Committee of Creditors [COC] on 30.06.2018. By this time, the other entities, i.e., AEPL and APPL, were out of the fray. 8. Thus, after going through the usual rigours provided under the 2016 Code and the extant regulations, the RP filed by KCPL was approved by the NCLT on 13.11.2018. Among other things, the NCLT, while approving the plan, adverted to the following: "19. The learned counsel for the RP submitted on instructions th....

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....ts books of accounts. This amount was apparently received as share application money pending allotment. The AO sought to make the addition under Section 68 and imposed tax under Section 115BBE of the 1961 Act. 14. The aforesaid show cause notice resulted in the AO framing the impugned assessment order dated 06.12.2019 under Section 143(3) of the 1961 Act. The addition proposed in the show cause notice dated 03.12.2019 was made, which resulted in the impugned demand notice dated 06.12.2019 being issued to the petitioner under Section 156 of the 1961 Act. RGPCL was, thus, called upon to pay Rs. 12,05,47,497/-. 15. The record shows that on 11.02.2020, the new management, which had taken over the affairs of RGPCL, wrote to the AO, explaining the reasons for non-participation in the assessment proceedings. A request was also made for the deletion of the additions made via the impugned assessment order having regard to the fact that the moratorium, as ordered by the NCLT, was in place. Since there was no response from the revenue, RGPCL took recourse to the instant writ action. 16. Notice in the instant writ petition was issued on 18.05.2020. While issuing notice, an interim dir....

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....laims were not lodged with the Resolution Professional, pursuant to the public announcement publication dated 31.01.2018, as they had not fructified into demands on that date. In this regard, our attention was drawn to when the impugned orders and demand notices were issued, i.e., 21.11.2019 and 06.12.2019. It was, therefore, submitted that the judgment cited on behalf of RGPCL was distinguishable. 20. Insofar as the other aspects of the matter were concerned, Mr Sharma drew our attention to the counter-affidavit, which broadly captured the date and events we have adverted to in the earlier part of this judgment. However, an emphasis was made that the reply to the notices issued under Section 143(2) and 142(1) of the 1961 Act was tendered by the new management quite late in the day. Reasons and Analysis: 21. Having heard learned counsel for the parties, what is not in dispute insofar as the instant case is concerned is that some of the notices issued under Section 143(2) of the 1961 Act predated the order dated 13.11.2018 passed by the NCLT, whereby KCPL's RP was approved. These notices are dated 09.08.2018, 28.09.2018 and 30.09.2018. These notices adverted to the fact tha....

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....d the aspects mentioned in the first notice dated 09.08.2018, issued under Section 143(2) of the 1961 Act. 24.1 The aforementioned impugned order and notice, dated 21.11.2019, cannot have a life on its own and are inextricably linked to the fate of the impugned assessment order and notice dated 06.12.2019. 25. Thus, having regard to the fact that the revenue had not lodged its claim, despite the publication of the public announcement by the Resolution Professional inviting claims from creditors, including statutory/operational creditors such as the revenue, no provision could be made [even if it may otherwise have been possible] in the approved RP. The terms contained in the approved RP are binding on all stakeholders, including those who could have filed claims but chose not to lodge them. The revenue, having failed to lodge its claim, cannot enforce the impugned orders and notices, given the binding nature of the approved RP. 26. Section 31 of the 2016 Code, among other things, stipulates that once the RP is approved, it shall be binding on the corporate debtor and its employees, members, and creditors, which includes the Central Government, State Government, Local Autho....