TaxTMI 
TaxTMI 
2023 (9) TMI 1692
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....t, 1992') read with Section 222 of the Income Tax Act, 1961 (for short 'the Act, 1961'). 3. The brief background facts that lead to issuance of the impugned notice are as under:- The Securities and Exchange Board of India (for short 'the SEBI') conducted an investigation into the trading in the scrip of ICSA (India) Limited (for short 'the ICSAI') for the period from 01.02.2009 to 28.02.2010 and after conducting an adjudication under Section 15I of the SEBI Act, 1992, an order, dated 15.10.2015, was passed imposing penalty of an amount of Rs.40,00,00,000/- under Section 15G and 15HA of the SEBI Act, 1992, against the petitioners herein and certain others to be paid by them jointly and severally. The said order, dated 15.10.2015, has become final by virtue of dismissal of Civil Appeal No.7981 of 2019 by an order, dated 21.10.2019, by the Hon'ble Apex Court. 4. Pursuant to the said order, dated 15.10.2015, the impugned recovery certificate/notice was issued by respondent No.2. There is no dispute about the liability of the petitioners to pay an amount covered by the impugned recovery certificate. However, the said certificate is questioned on the ground that the same c....
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....ayed and the creditors are required not to initiate any action/proceedings in respect of the debt. It is further contended that the respondents herein are the operational creditors and they can enforce the penalty amount due by filing a claim petition before the Resolution Professional, but not by directly enforcing the orders passed by the adjudicating authority under the provisions of the SEBI Act, 1992. It is also contended that by virtue of operation of Section 238 of the Code, 2016, the provisions of the Code, 2016, were given overriding effect on the provisions of the SEBI Act, 1992, and as such, the impugned certificate cannot be enforced. In support of the said contention, the petitioners also relied upon the judgment of the Hon'ble Supreme Court in the case of Principal Commissioner of Income Tax v. Monnet Ispat and Energy Ltd. (SLP(C) No.6487/2018) [(2018) 18 SCC 786] and the decision of the Hon'ble Apex Court in the case of M/s. Innoventive Industries Ltd v. ICICI Bank and another [(2018) 1 SCC 407]. 8. On the other hand, it is contended by Sri Vedula Srinivas, learned Senior Counsel, on behalf of the respondents that the amount that is covered by the impugned certifi....
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....under:- "238. Provisions of this Code to override other laws.- The provisions of this Code shall have effect, notwithstanding anything inconsistent therewith contained in any other law for the time being in force or any instrument having effect by virtue of any such law." The very same issue has fallen for consideration before the Hon'ble Apex Court in M/s. Innoventive Industries Ltd. (2 supra) case and following the decision of the Hon'ble Apex Court in M/s. Innoventive Industries Ltd. (2 supra) case, the High Court of Delhi in the case of Principal Commissioner of Income Tax-6, New Delhi v. Monnet Ispat and Energy Ltd. [2017 SCC Online Del 12759], held as under:- "It appears to the Court that Section 238 of the Code is categorical that the Code will apply, notwithstanding anything inconsistent therewith contained in any other law for the time being in force. Section 14(1)(a) of the Code states, inter alia, that on the 'insolvency commencement date' the Adjudicating Authority (AA) shall by order declare moratorium for prohibiting "the institution of suits or continuation of pending suits or proceedings against the corporate debtor including ex....
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.... was ordered to be wound up by virtue of the orders passed by this Court, as early as on 21.08.2018. But, the petitioners for the reasons best known to them neither disclosed the stage of such liquidation proceedings nor stated as to how the Director of a Company under liquidation can represent petitioner No.6, when admittedly a liquidator was appointed for the said company. It is settled legal position that once a Company is ordered to be wound up and a liquidator is appointed, the said Company can sue or be sued represented by its liquidator alone, but not the original Directors of the said Company. Therefore, the very filing of this Writ Petition by petitioner No.6 represented by its Director/former Director is incompetent and the same is liable to be dismissed, insofar as petitioner No.6 is concerned, on this ground alone. POINT No. III:- The Code, 2016, consists of various parts covering Sections 1 to 255. Part 2 of the Code, 2016, deals with the Insolvency Resolution and Liquidation for Corporate Persons and it consists of seven (07) chapters. Part 3 of the Code, 2016, deals with the Insolvency Resolution and Bankruptcy for individuals and partnership firms. In this Writ P....
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...., or not. 10. The next question that arises for consideration is whether the order passed by the adjudicating authority under Section 15I of the SEBI Act, 1992, would fall within the meaning of the order passed by a Court or Tribunal. A perusal of Section 15I of the SEBI Act, 1992, contemplates an enquiry to be conducted by the adjudicating officer in the prescribed manner after giving an opportunity to the person concerned of being heard for the purpose of imposing any penalty. Sub-section (2) of Section 15I of the SEBI Act, 1992, further confers the power on the adjudicating officer to summon and enforce the attendance of any person acquainted with the facts and circumstances of the case to give evidence or to produce any document and further empowers the adjudicating officer to impose a penalty on such person if he fails to appear or produce document, as required by the adjudicating officer. Thus, it is very much clear that the adjudicating officer, while discharging his duties under Section 15I of the SEBI Act, 1992, was conferred with all the powers satisfying all the facets of a judicial forum and therefore, this Court has no hesitation to hold that the adjudicating office....