AI OCR 
TaxTMI 
TaxTMI 
TaxTMI 
2025 (9) TMI 1164
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....ed. i. Declare that the Assignment Deed dated 13.12.2023, and the assignment of debt of Respondent No.2, in favor of Respondent No.1, is void and unenforceable; ii. Declare that Respondent No. 1 does not fall within the definition of "operational creditor" for the operational debt payable by the Corporate Debtor to Respondent No.2; iii. Direct Respondent No. 3 to reconstitute the CoC of the Corporate Debtor to reflect the status quo ante that existed prior to the assignment of debt of Respondent No. 2, in favor of Respondent No.1; iν. Reverse the effect and implementation of the decisions taken by the CoC during the period when Respondent No. 1 voting percentage was increased on the strength of Assignment of debt from Respondent No. 2; v. Pending hearing of the present application, Respondent No. 1 shall not participate in the CoC meetings or exercise its vote on the strength on impugned assignment; vi. Pending hearing of the present application, Respondent No. 1 increased voting share on account to impugned assignment shall not be counted while taking any decisions in the CoC meetings. vii. Pass any other order or d....
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.... CTIN Number 2311593956 on 24.11.2023 in respect of the entire 100% of the admitted claim of Respondent No. 2 against the CD. 8. Respondent No. 1 sent the debt assignment agreement (in short 'agreement') dated 13.12.2023 to the RP. The RP also received a latter dated 14.12.2023 in this regard. 9. After the receipt of agreement, the RP addressed an email to the members of the CoC on 20.12.2023 about the assignment of GST claim by Respondent No. 2 in favour of Respondent No. 1 and in compliance of Regulation 28(2) of the Insolvency and Bankruptcy Board of India (Insolvency Resolution Process for Corporate Persons) Regulations, 2016 (in short 'Regulations'), the RP filed I.A No. 609 of 2024 under Section 60(5) before the Tribunal intimating it about the aforesaid assignment and the consequent modification to the composition of the CoC. The Tribunal passed an order on 21.02.2024, taking on record, the reconstitution of the CoC in view of the assignment. 10. The RP convened 16th meeting of the CoC and placed the revised list of creditors of he CD and the revised composition of the CoC of the CD before the members of the CoC. 11. On 17.02.2024, the present appellant addressed....
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....llected by a private individual or a company. In this regard, he has referred to article 265 of the Constitution of India which read as under:- "Taxes not to be imposed save by authority of law. No tax shall be levied or collected except by authority of law" 19. He has also submitted that Section 23 of the Indian Contract Act provides that "the consideration or object of an agreement is lawful unless it is forbidden by law or is of such a nature that if permitted, it would defeat the provisions of any law." 20. The context of referring to this provision of the Contract Act is that the imposition and collection of tax is a sovereign function which cannot be delegated. It is also submitted that there is no provision in the GST Act, 2017 which permits the assignment of its tax to be collected by a private party. He has further submitted that the imposition of tax by authority of law means that the tax can be imposed either by law enunciated by parliament or by state legislature depending upon the subject provided in the respective lists and the collection of the tax is also provided in the special statute. In this regard, he has drawn our attention to Maharashtra GST Ac....
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.... amount so determined. Recovery of Tax 79. (1) Where any amount payable by a person to the Government under Recovery any of the provisions of this Act or the rules made thereunder is not paid, the of tax. proper officer shall proceed to recover the amount by one or more of the following modes, namely :- (a) the proper officer may deduct or may require any other specified officer to deduct the amount so payable from any money owing to such person which may be under the control of the proper officer or such other specified officer; (b) the proper officer may recover or may require any other specified officer to recover the amount so payable by detaining and selling any goods belonging to such person which are under the control of the proper officer or such other specified officer; ... (f) notwithstanding anything contained in the Code of Criminal Procedure, 1973, the proper officer may file an application to the appropriate Magistrate and such Magistrate shall proceed to recover from such person the amount specified thereunder as if it were a fine imposed by him. 21. It is contended by Mr. Gaurav Mitra that levy of tax is under....
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....recovered the amount of tax even though assessed by the GST Dept. on 17.05.2023, after filing of the claim on 29.12.2022 by Respondent No. 2 on the basis of show cause notice of an amount of Rs. 7,88,52,896/-, therefore, the nature of the amount lying with the CD has changed from a tax to a debt. It is submitted that the amount of Respondent No. 2 lying with the CD became an operational debt as defined under Section 5(21) of the Code which means "a claim in respect of the provision of goods or services including employment or a debt in respect of the payment of dues arising under any law for the time being in force and payable to the Central Government, any State Government or any local authority;" 25. It is submitted that as a natural corollary Respondent No. 2 became an OC as defined under Section 5(20) which means 'a person to whom an operational debt is owed and includes any person to whom such debt has been legally assigned or transferred;" 27. He has further submitted that the debt is also defined in Section 3(11) which means "a liability or obligation in respect of a claim which is due from any person and includes a financial debt and operational debt;" 28. He has s....
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....ommissioner, CGST & Central Excise and the amount payable was found Rs. 2,71,44,043/- which has been totally admitted. He has further submitted that the debt assignment deed was presented by Respondent No. 1 on the basis of which the assignee was given a place in the CoC with voting share of the assignor and the change in the constitution of the CoC was duly intimated to the AA by filing an application bearing I.A No. 609 of 2024. He has further submitted that as RP he has not committed any error in the performance of his duties and had collated the claim on the basis of order supplied by R2 dated 17.05.2023. It is submitted that after the approval of the plan, the Appellant has been paid its entire claim of Rs. 116577461 by a demand draft which has been encashed by the Appellant on 14.02.2025, therefore, the Appellant should not have any grievance either to file the application bearing I.A No. 2277 of 2024 or even to pursue this appeal as the Appellant is no more an aggrieved person whereas in order to file an appeal under Section 61, a person 'aggrieved' is a sine qua non. 34. Counsel for Respondent No.1 has also repeated the same argument which has been raised by Respondent N....
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....RP and moratorium is imposed under Section 14 then the execution of an order of any authority is also prohibited. In the present case, the amount crystallised to be recovered from the CD, by order dated 17.05.2023 passed by the R2 is Rs. 2,71,44,043/- but it cannot be recovered under the provisions of the GST Act or MGST Act, therefore, R2 had rightly filed its claim on 29.12.2022 in form B prescribed under Regulation 7 and RP has also rightly collated the claim to the tune of Rs. 2,71,44,043 because earlier amount of Rs. 7,88,52,896/-was tentative as it was the amount mentioned in the show cause cum demand notice whereas the amount of Rs. 2,71,44,043/- is the amount finally determined as payable by order dated 17.05.2023 by the competent authority but once, R2 wears the hat of OC, it has a right to assign its debt also as per provisions of the Code. This has precisely been done by Respondent No. 2 in favour of R1 who had agreed to reimburse the entire amount without any discount. 40. Thus, in our considered opinion, the Tribunal has not committed any error in dismissing the application of the Appellant challenging the assignment of debt by way of debt assignment agreement....