TaxTMI 
TaxTMI 
TaxTMI 
2025 (8) TMI 336
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....roval of the Resolution Plan was rejected. 2. The appellant is a Successful Resolution Applicant (SRA) of the Corporate Debtor namely M/s Vijay Citispace Pvt Ltd. By the impugned order the Ld. NCLT had refused to accord approval to the Resolution Plan submitted by the appellant hence the appellant is aggrieved of the impugned order and has filed this appeal. 3. The facts are vide an order dated 20.07.2021, the Ld. NCLT admitted CP (IB) 3352/2023 under Section 9 of the IBC filed by one Regency Ispat Pvt Ltd (Operational Creditor) against M/s Vijay Citispace Pvt Ltd and had directed the commencement of CIRP against the Corporate Debtor and appointed Respondent No.2 as an Interim Resolution Professional. 4. After obtaining valuation from registered IBBI valuers for the assets of the Corporate Debtor, at the 3rd CoC Meeting dated 14th October 2021, the CoC approved publication of Form G - Invitation for Expression of Interest ("EoI") and the eligibility criteria for prospective Resolution Applicants. Accordingly, Form G - Invitation for EoI was published on 20th October 2021 and only one EOI was received. Committee of Creditors, in 4th Meeting decided to republish Form G. 5. In res....
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.... Code. 14. Ld. NCLT further held Mr. Anil Gupta is deemed disqualified to be a Director under the Companies Act, 2013. The said finding has been returned as his three (3) companies, other than the Appellant i.e. (i) SKS Power Trading Ltd. (ii) SKS Power Generation Ltd. and (iii) SKS Power Holding Ltd., have been struck off by the Registrar of Companies ("RoC") for alleged non compliance under Section 164(2)(b) of Companies Act, 2019 (for non-filing of financial statements for 3 financial years). Accordingly, appellant has been held to be disqualified under Section 29A (e) read with (j) of IBC. 15. Section 29A of IBC read as under:- "29-A Persons not eligible to be resolution applicant-A person shall not be eligible to submit a resolution plan, if such person, or any other person acting jointly or in concert with such persons:- (a) Xxxx (b) Xxxx (c) [at the time of submission of the resolution plan has an account,] or an account of a corporate debtor under the management or control of such person or of whom such person is a promoter classified as non performing asset in accordance with the guidelines of the Reserve Bank of India issued under the Banking Regulation Act, 194....
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....t or control of the business of the corporate debtor during the implementation of the resolution plan; or (iii) the holding company, subsidiary company, associate company or related party of a person referred to in clauses (i) and (ii): Provided that nothing in clause (iii) of Explanation I shall apply to a resolution applicant where such applicant is a financial entity and is not a related party of the corporate debtor. Provided further that the expression "related party" shall not include a financial entity, regulated by a financial sector regulator, if it is a financial creditor of the corporate debtor and is a related party of the corporate debtor solely on account of conversion or substitution of debt into equity shares or instruments convertible into equity shares 4[or completion of such transactions as may be prescribed], prior to the insolvency commencement date; 16. The crux of the argument advanced by the learned senior counsel for the Respondent is Mr Anil Gupta is a connected person of appellant and hence is deemed disqualified as a director by operation of law solely on the basis of the ROC striking off three of his companies. This objection is taken by the Resp....
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....esolution applicant is a Director. It has been argued that the said company collected share application money pending allotment and did not refund the same; and consequently, in terms of Section 164(2)(b) of the Companies Act, this default would disqualify the resolution applicant from acting as a Director and thereby, would render him ineligible to submit a resolution plan. We find it difficult to accept the submissions aforesaid and the propositions against the resolution applicant on this score. 175. Even if there had been any possibility of the resolution applicant incurring such a disqualification in terms of Section 164(2)(b) of the Companies Act, because of alleged default of another company, in which he is a Director, to refund the share application money, the same would essentially be a matter of consideration of the Registrar of Companies. Unless a categorical finding was recorded in the competent forum as regards any such default and unless specific order disqualifying the resolution applicant as Director because of such default came into existence, it could not have been taken by way of any process of assumption that the appellant- resolution applicant was disqualifie....
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....executed on 12th November 2018 with Agritrade Resource Ltd. and its affiliates, the company was transferred to another foreign entity which has no connection as on date with Respondent No.3 or its other related or connected parties. Respondent No.3 craves leave to place on record the share transfer documents as and when required to do so However, for the sake of convenience, the letter issued by SBI on 18th March 2019 clarifying that the entire transaction concluded is annexed and marked as Exhibit "B" to this Affidavit." 41. There is no case made out which would show or demonstrate in any manner that the Respondent No.3/the Resolution Applicant is barred under Section 29-A of IBC. The reliance placed on the Chhattisgarh entity is thoroughly misconceived as stated herein above. The records available with this Tribunal where the proceedings of Chhattisgarh entity are ongoing will clearly demonstrate that the Resolution Applicant are not the owners and promoters. The company is managed, owned and controlled by a completely different entity/management. This company was transferred by lenders of the very same entity under a share transfer transaction. The Applicant of the present app....
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....as an NPA as on date of submission of Resolution Plan, or that a period of one year has lapsed from the date of such classification till the commencement of CIRP of CD i.e. till 20.07.2021. Moreover, it was reiterated by the appellant that appellant had no relation with M/s SKS Power Generation (Chhattisgarh) Ltd. since 12.11.2018. 25. The learned counsel for R-1 also placed reliance on the Judgment of Hon'ble Allahabad High Court in Crl. M. WP No. 9949 of 2021 titled as Ms. Baba Beti v. State of UP &Ors. dated 19.03.2024 [Paras 5.4, 5.8, 5.11, 24] to state M/s Agritrade Resource Ltd. is also an entity owned by proxies of Mr. Anil Gupta. However, the said allegation can not be considered by this Tribunal, as the Allahabad High Court has itself in Paras 34 and 37 of its order clarified that: "34. It is evident from the counter affidavit filed by the Enforcement Directorate, Department of Revenue, Government of India that the Zonal Office at Prayagraj has already registered an ECIR bearing No.ECIR/ALSZO/01/2022 dated 10.2.2022 with the approval of the competent authority. Consequently, we leave to the wisdom of Enforcement Directorate's officers, to trace the proceeds of the crime....