Department Of State Tax vs D S Kulkarni Developers Ltd & Anr

Department of State Tax ...Appellant

Versus

D.S. Kulkarni Developers Ltd. & Anr. ...Respondents

Present: For Appellant: Ms. Shwetal Shepal, Advocate. For Respondents: Mr. Anand Singh Sengar, Advocate for RP. Mr. Puneet Singh Bindra, Mr. Rishabh Gupta and Mr. Someer Sethi, Advocates for SRA.

ORDER

08.11.2023: Heard learned counsel for the Appellant as well as learned

counsel for the Respondent. We have also heard learned counsel for the

Successful Resolution Appliclant and Resolution Professional. This Appeal has

been filed against the order of the Adjudicating Authority dated 23.06.2023 by

which the Adjudicating Authority has approved the Resolution Plan of the

Corporate Debtor - Ashdan Properties Pvt. Ltd. The Appellant who is

Department of State Tax has come up in this Appeal challenging the order.

2. The grievance of the Appellant is that the Appellant has filed claim of

amount of Rs.67 Crores and odd whereas in the Resolution Plan the amount

earmarked to the Operational Creditor is less than 1%. The learned counsel

for the Appellant has relied on the judgment of Hon'ble Supreme Court in

"State Tax Officer vs. Rainbow Papers Ltd".

Cont'd.../ -2-

3. Learned counsel for the Respondent submits that similar issue has been

decided by this Tribunal by judgment dated 07.02.2023 in Company Appeal

(AT) (Ins.) No.246 of 2022 where appeal filed by the Department of State Tax

challenging approval of Resolution Plan on the same ground has been rejected.

4. We have considered the submissions of learned counsel for the parties

and perused the record.

5. The claim filed by the Appellant was as Operational Creditor and it is

not shown that Operational Creditor was entitled for any more amount as per

Section 30(2)(e) under which the Operational Creditor is entitled for the

amount equivalent to the amount which could have been paid to the

Operational Creditor in event of liquidation as per waterfall mechanism under

Section 53. In judgment of this Tribunal in in "Company Appeal (AT) (Ins.)

No. 246 of 2022, Department of State Tax, Through the Dy.

Commissioner of State Tax vs. Zicom Saas Pvt. Ltd. & Anr.", the

submission on the basis of "Rainbow Paper" was considered and repelled.

Para 7 to 10 of the judgment are as follows:

"7. There are no dispute between the parties regarding the facts which took place in the CIRP and the claim which was admitted in the CIRP. In "Rainbow Paper Limited" (supra), Section 48 of the GVAT Act was relied, which has been quoted in paragraph 2 of the Judgement which is to the following effect:

"The short question raised by the appellant in this appeal is, whether the provisions of

Company Appeal (AT) (Insolvency) No.1284 of 2023 -3-

the IBC and, in particular, Section 53 thereof, overrides Section 48 of the GVAT Act which is set out herein below for convenience:-

48. Tax to be first charge on property.- Notwithstanding anything to the contrary contained in any law for the time being in force, any amount payable by a dealer or any other person on account of tax, interest or penalty for which he is liable to pay to the Government shall be a first charge on the property of such dealer, or as the case may be, such person"

8. The Provision of Section 37 of Maharashtra Value Added Tax, 2002 is to the following effect:

"37. Notwithstanding anything contained in any contract to the contrary, but subject to any provision regarding creation of first charge in any Central Act for the time being in force, any amount of tax, penalty, interest, sum forfeited, fine or any other sum, payable by a dealer or any other person under this Act, shall be the first charge on the property of the dealer, or as the case may be, person."

9. When we compare the provisions of Section 48 of the provision of Gujarat Values Added Tax which was relied in "Rainbow Papers Limited" and the Provisions of Section 37 which is sought to be relied on in the present Appeal, distinction between the provisions is clear. Section 37 specifically uses the expression "subject to any provision regarding creation of first charge in any central act". The provision itself contemplated thus that Section 37 was subject to any provision in Central Act. The IBC Section 53 itself provides waterfall mechanism which may be treated to be law which has been contemplated under Section 37 of the MVAT Act, 2002.

Company Appeal (AT) (Insolvency) No.1284 of 2023 -4-

10. We thus are of the view that the Judgement of the Hon'ble Supreme Court in "Rainbow Paper Limited"

relied by Learned Counsel for the Appellant is distinguishable. The Appellant having been treated as Operational Creditor allocation of amount in the Resolution Plan cannot be said to be in violation of Section 30 (2)(b). We thus are of the view that no ground has been made to interfere with the Impugned Order."

6. Following the aforesaid judgment, we are of the view that no grounds

have been made to interfere with the order approving the Resolution Plan.

Appeal is dismissed.

[Justice Ashok Bhushan] Chairperson

[Barun Mitra] Member (Technical)

[Arun Baroka] Member (Technical) Archana/nn

Company Appeal (AT) (Insolvency) No.1284 of 2023