2024 (2) TMI 545

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....e main petitions are taken up for hearing and disposed of through this common order. 2. The particulars of the proceedings that have been put to challenge in these petitions are tabulated hereunder :- Sl. No. Quash petition before the Hon'ble High Court of Madras Complaint pending before Hon'ble learned Additional Chief Metropolitan Magistrate (E.O.II) at Egmore Complaint filed under Section 277 of the Income Tax Act, 1961 for undisclosed Income and Assessment year 1. Crl OP No.264 of 2023 E.O.CC No.179 of 2016 Assessment year 2010-2011 and undisclosed Income Rs.1,60,07,054/- 2. Crl OP No.151 of 2023 E.O.CC No.180 of 2016 Assessment year 2011-2012 and undisclosed Income Rs.4,61,09,828/- 3. ....

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.... the resolution plan. The NCLT, Chennai, approved the resolution plan and IRP was appointed as the Chairman of the Monetary committee. He submitted the list of creditors including the name of the Income Tax Department, which was also shown as one of the Creditor. The Successful Resolution Applicant took over the Management of the A1 company on 01.04.2023. 5. Pursuant to the above, the NCLT passed an order on 03.02.2023 and the relevant portion in the order is extracted hereunder :- 33. All the Civil and criminal litigations, investigations, enquiries, proceedings, causes of action, claims, disputes or other judicial, regulatory proceedings as against the Corporate Debtor or the affairs of the Corporate Debtor, pending or threatened....

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.... if the control of the corporate debtor goes in the hands of the new management which is different from the original old management. b. The prosecution in relation to "every person who was a "designated partner" as defined in clause (j) of Section 2 of the Limited Liability Partnership Act, 2008 (6 of 2009) , or an "officer who is in default", as defined in clause (60) of Section 2 of the Companies Act, 2013 (18 of 2013) , or was in any manner in charge of, or responsible to the corporate debtor for the conduct of its business or associated with the corporate debtor in any manner and who was directly or indirectly involved in the commission of such offence" shall be proceeded and the law will take it's own course. Only the corporat....

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....is pertinent to determine the following two issues, i.e., i. Whether the offence as complained in the impugned criminal proceedings has been alleged to be committed before the initiation of corporate insolvency resolution process or during such process? ii. Whether the resolution plan has resulted in change in the management or corporate debtor in consonance with the provisions of Section 32A(1) of IBC, 2016? 5. With respect to Issue No. 1, it is pertinent to note that the corporate insolvency resolution process as against the Petitioner/Corporate Debtor was initiated on 13.03.2019 when the application was accepted and the Order of Moratorium under Section 14 of the IBC, 2016 was imposed by NCLT, Kolkata in the af....

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....nt to the order passed by the NCLT dated 03.02.2023. In view of the same, the new management takes over the A1 company as a clean slate and the criminal liability can no longer be mulcted as against A1 company. Therefore, the continuation of criminal proceedings as against A1 company can no longer subsist. 13. The company has been taken over by a new management and the criminal liability cannot be passed on to the new management. The Apex Court had an occasion to directly deal with this issue in a recent judgement reported in 2023 4 MLJ Criminal 497. Paragraph 30 in that judgement is extracted hereunder :- 30. It is, therefore, noticeable that the criminal liability of a company (a) is recognized where it can be attributable to ....