VAIBHAV GOEL Vs. DEPUTY COMMISSIONER OF INCOME TAX

JUDGEMENT

(1.) FACTUAL DETAILS : This appeal under Sec. 62 of Insolvency and Bankruptcy Code, 2016 (for short, 'the IB Code') takes an exception to the judgment and order dtd. 25/11/2021 passed by the National Company Law Appellate Tribunal ('the NCLAT'). The Corporate Insolvency Resolution Process (CIRP) was initiated concerning the corporate debtor M/s. Tehri Iron and Steel Casting Ltd. ('the CD'). The appellants are the Joint Resolution Applicants. They submitted a Resolution Plan dtd. 21/1/2019. The National Company Law Tribunal ('the NCLT'), vide its order dtd. 21/5/2019, approved the Resolution Plan submitted by the appellants.

(2.) The Resolution Plan had referred to the liability of Rs.16,85,79,469.00 (Rupees Sixteen-crores, eighty-five lakhs, seventy-nine thousand, four-hundred and sixtynine only) of the first respondent (Income Tax Department) for the assessment year 2014-15 based on the demand dtd. 18/12/2017 which was rectified under sec. 154 of the Income Tax Act, 1961 (for short, 'the IT Act'). The liability was shown in the Resolution Plan under the heading "Contingent liabilities". After the approval of the Resolution Plan, the first respondent issued demand notices dtd. 26/12/2019 and 28/12/2019 under the IT Act concerning assessment years 2012-13 and 2013-14, respectively, in respect of the CD. However, admittedly, no claim about the demands for the two assessment years was submitted before the Resolution Professional. The second respondent, the Monitoring Professional, addressed a letter to the first respondent, contending that the demands for the two aforesaid assessment years were unsustainable in law. As the first respondent issued a letter dtd. 2/6/2020 asserting the said demands, the second respondent applied to the NCLT for declaring that the demands made by the first respondent pertaining to assessment years 2012-13 and 2013-14 were invalid. It was urged that the said demands were invalid as no claim in respect thereof was made before the Resolution Professional until the Resolution Plan was approved by the order dtd. 21/5/2019. By the order dtd. 17/9/2020, the NCLT dismissed the application, holding it to be frivolous. The costs of Rs.1.00lakh were made payable by the appellants and the second respondent. Being aggrieved by the said order, an appeal under Sec. 61 of the IB Code was preferred before the NCLAT. By the impugned judgment and order dtd. 25/11/2021, the NCLAT dismissed the said appeal.

(3.) The learned senior counsel appearing for the appellants submitted that the NCLT dismissed the application made by the second respondent without assigning any reasons. He pointed out that though no claim was received from the first respondent pertaining to the assessment year 2014-15 till the submission of the Resolution Plan, the Resolution Professional by itself admitted the liability of payment of income tax for the assessment year 2014-15, which was pending as a contingent liability of the CD. He relied upon a decision of this Court in the case of Committee of Creditors of Essar Steel India Ltd. vs. Satish Kumar Gupta & Ors., (2020) 8 SCC 531. He submitted that the issue was squarely covered by a decision of a Bench of three Hon'ble Judges of this court in the case of Ghanashyam Mishra and Sons Pvt. Ltd. through the authorised signatory v. Edelweiss Asset Reconstruction Company Ltd. through the Directors & Ors., (2021) 9 SCC 657. However, the NCLAT has brushed aside the said binding decision. He, therefore, submitted that the impugned orders of NCLT and NCLAT deserve to be quashed and set aside.