Assistant Commissioner Of Cgst vs Vhcl Industries Pvt. Ltd. & Anr

IN THE MATTER OF: Assistant Commissioner, Central Goods and Service Tax. ...Appellant Versus VHCL Industries Ltd. & Anr. ...Respondents

Present: For Appellant : Mr. Piyush Beriwal and Mr. Nikhil Kumar Chaubey, Advocates. For Respondents : Mr. Saurabh Kalia and Mr. Sarvik Singhai, Advocates for R-2.

ORDER

(Hybrid Mode)

[Per: Justice Rakesh Kumar Jain] (Oral)

12.02.2024 : This Appeal is directed against the order dated 20.01.2021,

by which application filed by the Appellant bearing I.A. No. 923/2020 under

Section 42 of the Insolvency and Bankruptcy Code, 2016, (for short the Code)

with a Prayer that "(a) to allow this application and direct the Insolvency

Liquidator to accept the claim of the applicant and (b) to allow and direct the

Insolvency Liquidator to recognize the claim of the applicant and direct the

Resolution to pay the dues of the applicant giving priority upon realizing the tax

dues giving priority", has been dismissed.

2. In brief, M/s. VHCL Industries Ltd. (hereinafter referred to as the

Corporate Debtor) filed an application under Section 10 of the Code bearing

C.P. (IB) No. 76/2018 for initiation of Corporate Insolvency Resolution Process

(for short CIRP). The application was admitted by the National Company Law

Tribunal, Ahmedabad Bench on 19.12.2019 and appointed Kiran Shah as the Interim Resolution Professional (IRP). In the first Meeting of the Committee of

Creditors (CoC), held on 03.04.2019, the IRP was continued as Resolution

Professional (RP). Pursuant to publication by the IRP, the present Appellant

(Assistant Commissioner of CGST and Central Excise Range IV, Division X)

submitted its Claim in Form-B on 07.06.2019. The IRP/RP collated the

claims. However, in the 4th Meeting of the CoC, which was held in 14.01.2020,

the CoC decided to liquidate the Corporate Debtor (CD) and thereafter the

Adjudicating Authority passed the order of liquidation on 02.07.2020. The RP

was appointed as Liquidator. He made the publication on 08.07.2020.

According to the Liquidator (Respondent No. 2), he sent an email on

09.07.2020 to the Appellant to file the Claim. The Appellant filed the Claim in

Form-B on 10.07.2020 and on the same day Liquidator informed the

Appellant to file Form-C as per Insolvency and Bankruptcy Board of India

(Liquidation Process) Regulations, 2016 (for short the Regulations). The Claim

in Form-C dated 14.08.2020 was submitted by the Appellant on 17.08.2020

whereas the last date for filing claims was 31.07.2020. Thus, it was found by

Respondent No. 2 that the Claim submitted by the Appellant was delayed by

17 days and hence it was rejected by Order dated 05.09.2020. Aggrieved

against the Order dated 05.09.2020, the Appellant filed the Appeal under

Section 42 of the Code bearing I.A. No. 923/2020 on 03.12.2020. The Claim

filed by the Appellant on 17.08.2020 and the Appeal filed on 03.12.2020 have

been dismissed by the Tribunal on the ground of delay in filing the Appeal.

The Tribunal has observed that since the last date for filing the Claim was

31.07.2020 and the Claim was filed before the Liquidator on 17.08.2020,

therefore, it is beyond the stipulated time and without showing any reason for

Comp. App. (AT) (Ins.) No. 342 of 2021 2 of 5 the delay. Insofar as the Appeal under Section 42 of the Code, is concerned,

the Tribunal rejected the Appeal also on the ground that the period prescribed

for filing such an Appeal is 14 days whereas it has been filed after the delay

of about 75 days.

3. Aggrieved against the impugned order, the present Appeal has been

filed by the Appellant who has setup a Claim to the tune of

Rs.359,46,39,728/-.

4. Counsel for the Appellant has argued that insofar as, the issue

regarding the delay in filing of the Appeal under Section 42 of the Code is

concerned, the said Appeal was filed on 03.12.2020 and is thus protected by

the Order passed by the Hon'ble Supreme Court in Suo Motu Writ Petition

(Civil) No. 03/2020 in `Re: Cognizance of Extension of Limitation' by which the

Hon'ble Supreme Court has extended the period of limitation in all

proceedings before the Courts/Tribunals including the Supreme Court with

effect from 15.03.2020 till further Order. The said Order was

extended/continued on 08.03.2021, 27.04.2021, 23.09.2021 and

10.01.2022, further directing that the period from 15.03.2020 till 28.02.2022

shall stand excluded for the purposes of limitation as may be prescribed

under any general or special laws in respect of all judicial or quasi-judicial

proceedings.

5. Counsel for Respondent No. 2 could not dispute and this factual

situation as per which the case of the Appellant squarely falls within the

period which has been excluded for the purpose of counting the limitation. In

such circumstances, the order passed by the Tribunal dismissing the Appeal

on the ground of delay is hereby reversed.

Comp. App. (AT) (Ins.) No. 342 of 2021 3 of 5

6. Insofar as, the delay in filing the Claim is concerned, Counsel for the

Appellant has referred to Regulation 12(2)(a) and Regulation 16 of the

Regulations which are reproduced as under:

"12. Public announcement by liquidator:

(2) The public announcement shall-

(a) call upon stakeholders to submit their claims or update their claims submitted during the corporate insolvency resolution process, as on the liquidation commencement date."

"16. Submission of claim:

16. (1) A person, who claims to be a stakeholder, shall submit its claim, or update its claim submitted during the corporate insolvency resolution process, including interest, if any, on or before the last date mentioned in the public announcement.

(2) A person shall prove its claim for debt or dues to him, including interest, if any, as on the liquidation commencement date."

7. It is submitted that though the public announcement was made on

08.07.2020 and the Appellant was informed on 09.07.2020 but the fact

remains that the Appellant had already filed its Claim before the IRP/RP on

07.06.2019 in Form-B and it was only a matter of updating the same.

8. Counsel for Respondent No. 2 has though argued vehemently but he

could not find fault with the argument raised by the Appellant in respect of

Regulation 16 which provides that a person, who claims to be a stakeholder,

shall submit its claim, or update its claim submitted during the CIRP,

including interest, if any, before the last date mentioned in the public

announcement.

9. This is what precisely has happened in this case that the Form-B

submitted by the Appellant after the CIRP was initiated on 07.06.2019 and

Comp. App. (AT) (Ins.) No. 342 of 2021 4 of 5 on 19.12.2019 the Form-B again was submitted which was an act of updating

its Claim before the Liquidator.

10. Thus, in our considered opinion there is no delay in filing of Claim

before Liquidator by the Appellant and hence the finding recorded against the

Appellant by the Tribunal is also reversed.

11. As a result of the aforesaid discussion, the present Appeal succeeds and

the impugned order is hereby set aside.

As a consequence thereof, the Respondent No. 2 shall now consider the

Claim of the Appellant in accordance with law.

[Justice Rakesh Kumar Jain] Member (Judicial)

[Ajai Das Mehrotra] Member (Technical) himanshu/kam

Comp. App. (AT) (Ins.) No. 342 of 2021 5 of 5