TaxTMI 
TaxTMI 
2025 (5) TMI 2004
X X X X Extracts X X X X
X X X X Extracts X X X X
....fore the Adjudicating Authority for appointment of Premraj Ramratan Laddha as Resolution Professional (RP) which was allowed on 16.03.2020. 3. Shorn of unnecessary details, M/s Suryadeep Alloys Steel Casting Pvt. Ltd. was the only resolution applicant. The CoC with 100% voting, approved the plan on 28.08.2020 pursuant to which RP filed an application bearing I.A No. 591 of 2020 before the Adjudicating Authority under Section 30(6) r/w Section 31 of the Code for seeking approval of the resolution plan. 4. The said application has been allowed vide impugned order dated 09.12.2020. 5. The present appeal has been filed by the State Tax Officer, Gujarat because against its admitted claim no provision has been made for any payment to the Appellant though it is claimed that the Appellant is also a secured creditor. 6. The Appellant has alleged that a sum of Rs. 11,70,47,801/- has accrued pertaining to assessment year 2009-11 and 2014 - 16 of the CD under the GVAT Act, 2003 (in short 'Act') and CST Act, therefore, a charge was created on the property of the CD by operation of law. 7. It is further alleged that the assessment orders were challenged by the CD before the Gujara....
X X X X Extracts X X X X
X X X X Extracts X X X X
....f the Hon'ble Supreme Court in the case of Paschimanchal Vidyut Vitran Nigam Ltd. Vs. Raman Ispat (P) Ltd. (2023) 10 SCC 60 to contend that electricity dues or statutory dues owed to government bodies do not enjoy precedence over secured creditors or other classes unless backed by valid security interest, therefore, the dues of the Appellant falling within the meaning of Government Dues and in liquidation will rank lower in priority under Section 53(1)(e)(i) of the Code. 10. It is submitted that the resolution plan submitted by Respondent No. 3 was approved by CoC whose wisdom is paramount and in this regard reliance has been placed upon the decisions of the Hon'ble Supreme Court in the cases of Pratap Technocrats (P) Ltd. & Ors. Vs. Monitoring Committee of Reliance Infratel Limited & Anr. 2021 SCC OnLine SC 661 and K Sashidhar Vs. Indian Overseas Bank & Ors., 2019 SCC OnLine SC 257. 11. It is also submitted that the Tribunal has passed the order in terms of Section 30(2) of the Code and since the wisdom of the CoC is supreme, therefore, limited scope of judicial review is available. In this regard, a reference has been made to the case of CoC of Essar Steel India Ltd. Vs. Sa....
X X X X Extracts X X X X
X X X X Extracts X X X X
....tion of the Appellant as operational creditor instead of a secured creditor, therefore, it has to be seen as to whether by virtue of the order passed under Section 48 of the GVAT Act a charge is created on the property of the CD by way of operation of law in view of the law laid down by the Hon'ble Supreme Court in the case of Rainbow Papers (Supra). 18. In the case of Rainbow Papers (Supra), the Hon'ble Supreme court has noticed the issue involved in para 4 which is reproduced as under:- "2. The short question raised by the appellant in this appeal is, whether the provisions of the IBC and, in particular, Section 53 thereof, overrides Section 48 of the GVAT Act which is set out herein below for convenience: "48. Tax to be first charge on property.- Notwithstanding anything to the contrary contained in any law for the time being in force, any amount payable by a dealer or any other person on account of tax, interest or penalty for which he is liable to pay to the Government shall be a first charge on the property of such dealer, or as the case maybe, such person." 19. The Appellant in the said case challenged the plan by filing an appropriate application bef....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... are reproduced as under:- "17. On or about 8th April, 2019, the appellant filed an appeal before the NCLAT against the aforesaid order dated 27th February 2019 of the Adjudicating Authority, under Section 61 of the IBC. The appeal has been dismissed by the NCLAT by the judgment and order impugned. 18. The NCLAT held : "34. The Adjudicating Authority noticed that the Appellant approached the 'Resolution Professional' on 22nd October, 2018 whereas the 'Resolution Plan' dated 26th May, 2018 along with Addendum dated 5th June, 2018 was approved by the 'Committee of Creditors' with voting majority of 72.79 per cent in favour of the 'Resolution Plan'. Thus, the claim was made by the Appellant at a much belated stage not only before the 'Resolution Professional' but also before the Adjudicating Authority. 35. We find that the Appellant has not filed claim within time. It approached the 'Resolution Professional' at belated stage after approval of the 'Resolution Plan' by the Adjudicating Authority. 36. Learned counsel for the 'Resolution Professional' submitted that the claim of the Appellant- 'State Tax Officer (1)' comes within the meaning of....
X X X X Extracts X X X X
X X X X Extracts X X X X
....created by operation of law. The definition of secured creditor in the IBC does not exclude any Government or Governmental Authority. 58. We are constrained to hold that the Appellate Authority (NCLAT) and the Adjudicating Authority erred in law in rejecting the application/appeal of the appellant. As observed above, delay in filing a claim cannot be the sole ground for rejecting the claim. 59. The appeals are allowed. The impugned orders are set aside. The Resolution plan approved by the CoC is also set aside. The Resolution Professional may consider a fresh Resolution Plan in the light of the observations made above. However, this judgment and order will not, prevent the Resolution Applicant from submitting a plan in the light of the observations made above, making provisions for the dues of the statutory creditors like the appellant. 60. There shall be no order as to costs." 22. There was a review petition filed in the aforesaid decision of the Rainbow Papers (Supra) which was also dismissed by the Hon'ble Supreme Court. 23. The argument raised by the Respondent that in the case of Paschimanchal Vidyut Vitran Nigam Ltd. (Supra) the correctness of....