TaxTMI 
TaxTMI 
2024 (12) TMI 455
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.... by the Bank with the terms and conditions that all cash flows of the business was to be routed through a designated account such as revenue receipts/receivables from the project including deposits, service charges, equity/shareholders contribution and deposited into the Project Escrow Account. Accordingly, an Escrow Agreement was executed on 20.02.2015, by the parties with the condition that further withdrawals from the Escrow Account upto the final settlement under the financing agreements, shall be permitted for the purposes of taxes and statutory requirements. However, the petitioner Company received an email dated 05.11.2020 from one of its tenants, informing that the GST amount had not been paid to the concerned authorities, whereafter it was discovered that the respondent Bank despite the stipulated conditions had adjusted the entire funds towards its debt repayment. Hence the writ petition. 3. Mr. K. Paul, learned Senior counsel assisted by Ms. B. Kharwanlang, learned counsel for the petitioner has submitted that under the Escrow Agreement, it had been specifically provided that withdrawals from the Escrow Account upto the final settlement was that taxes and statutory paym....
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....et off being provided under Section 19 (8) of the Recovery of Debts and Bankruptcy Act, 1993, the learned Senior counsel submits that the same is of no relevance, and is immaterial in the instant case, as the relief of prayer sought for by the petitioner Company is towards making good of the payments wrongfully and illegally adjusted by the Bank towards debt repayment. Apart from submitting that the said payments of dues towards GST must be made from the Bank itself, it is contended that the said Section 19 (8) as referred to above, is not applicable, as there is no counter claim being made by the petitioner, and no monetary relief is being sought directly from the respondent Bank. In support of his arguments, reliance has been placed in the case of Employees Provident Fund Commissioner vs. Official Liquidator of Esskay Pharmaceuticals Ltd. reported in (2011) 10 SCC 727, wherein he submits it has been held that all revenues, taxes, cesses and rates due from a Company to the Central or the State Government as also wages, gratuity etc. are payable in priority to all other debts. As such, he submits, the respondent Bank cannot as a defence, state that GST compliance and liability is t....
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....on), which required the submission of 9(nine) documents by the petitioner to the GST authorities, which was a pre-condition to the final quantification of GST amount was not complied with by the petitioner, as it failed to file a single GSTR-3B, since the roll out of GST w.e.f. July, 2017. The petitioner he asserts, cannot hold the respondent Bank responsible as the petitioner did not produce any GSTR-3B filings that had been submitted to enable the Bank to take required steps, and further merely on the basis of letters to release the GST amount without providing the actual amount to be released, cannot be permitted. He submits that the petitioner having failed to submit the required documents which are mandatory in nature, the claim against the Bank is nothing but a tactic to avoid the payment of the outstanding dues of both the Bank and the GST. The petitioner Company he submits, did not maintain proper communication with the tenants who had deposited their share of GST amount in the Escrow Account, and did not inform the Bank also in this regard. 10. In the facts and circumstances of the case, he contends the respondent Bank cannot be faulted on the issue of non-release of GST ....
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....itioner Company had control or the right to operate the Escrow Account. 13. On the first issue, as can be seen from the submissions recorded above, no doubt proceedings instituted by the respondent Bank, are pending before the Debts Recovery Tribunal in the form of O.A. No. 103/2023, wherein the relief sought for as given in the prayer, is for recovery of the amounts release under 2(two) term loans, and for order of attachment and sale of hypothecated properties and mortgage properties given in the schedule thereto. However, in the considered opinion of this Court, the issue raised in the instant petition is different and distinct, inasmuch as, the issue herein is regarding payment of debt, which was adjusted by the respondent Bank, leading to non-payment of GST by the petitioner, which is alleged, is contrary to the Escrow Agreement. On the aspect of non-joinder of the GST authorities as necessary party, again as the sole issue stems from the violation of the Escrow Agreement, the non-impleadment will not disable the instant writ petition. The Escrow Agreement also does not relate to any monetary claim by either of the parties, but is an agreement that was to govern all the cash....
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....s and set forth herein below. Now this Escrow agreement Witnessth as follows:- All the cash flows of the business shall be routed through designated account is to be executed. All revenue receipts/receivables of the project including deposits, service charges etc. drawdown under the facility and equity/shareholders contribution relating to the project, shall be deposited into designated Project Escrow Account, up to final settlement under the Financing Agreement shall be permitted for the following purposes of the project and in the following order: 1. Taxes & Statutory payments 2. Project expenses including fees and other dues payable under the agreement related to the project and Operational Expenses 3. Payment of interest 4. Debt service Reserve Account 5. Debt Repayment In Witness whereof both the parties set and subscribed their respective hands along seal on the day, month and year first above written. 15. From the table given in the said Agreement as quoted above, taxes and statutory payments are placed at Serial No. 1, meaning thereby priority be given to this payment, whereas, debt repayment is at Serial No. 5. Before proceeding further in the dis....
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....ory dues/GST component by the Bank, it appears resulted in the non-payment of rent by the tenants of the petitioner, which also significantly contributed to the petitioner being classified as a NPA in 2019. Paragraph - 3 of the affidavit filed by the respondent Bank on 01.08.2023, has infact, also substantiated this position, wherein it is acknowledged that the receivables in the Escrow Account had stopped since 24.07.2021, and that there were no credit deposits from any of the tenants thereafter. 17. Though it has been argued that the Bank on its own cannot calculate or quantify the amount of GST/statutory dues against a particular head or any transaction by a third party, from the Index of Disbursement of Funds and letters from the petitioner to the respondent Bank regarding release of GST, a compilation of which has been filed before the Court, it is noted that requests had been made since the year 2017, and invoices submitted to the respondent to enable them to comply with the filing of returns, which however appears went unheeded. Compliance with GST requirements i.e. GSTR-1, which is a monthly or quarterly return that captures the details or outward supplies or sales made by....