Krishna Infosolutions Private Limited vs Anil Anchalia

In the matter of: Krishna Infosolutions Pvt. Ltd. ....Appellant Vs. Anil Anchalia Resolution Professional of Atlantic Projects Ltd. ....Respondent Present For Appellant: Ms. Aditi Sharma & Mr. Nilesh Sharma, Advocates. For Respondent: Mr. Anil Anchalia, RP in person.

ORDER

(Virtual Mode)

31.05.2022: Heard Learned Counsel for the Appellant and Resolution

Professional.

This Appeal has been filed against the Order dated 25.11.2021 passed by

the NCLT (National Company Law Tribunal, Kolkata Bench, Kolkata) in I.A (IB)

No.- 352/KB/2021 in CP (IB) No. 174/KB/2018 limited to the extent, whereby,

the order refuses the relief and concession as prayed for in Ref. of Clause

12.1.1 . Learned Counsel for the Appellant has referred in paragraph 31 at

Serial No. 1, 2 & 3, which is to the following effect:-

Sl. Ref to Relief, concessions and approvals Orders No. Clause sought thereon

1. 12.1.1 CBDT i. All income tax demands/ interest and penalty This is for the assessed/ to be assessed/claimed/ to be claimed relevant tax against the corporate debtor for the FY/ period authorities to up to the effective date shall stand written off/ consider, and not waived and extinguished on approval of in the nature of a Resolution Plan by the Hon'ble Adjudicating waiver, concession Authority.

2 or relief to be granted by this Adjudicating Authority. 2. ii. CD shall be exempted from the applicability of This is for the provisions of sections 41(1), Section 79 and relevant tax Section 115 JB of the Income Tax Act, 1961 in authorities to

respect of net credit balance pursuant to write off consider, and not of assets (considered unrecoverable) of the CD in the nature of a and waivers/ extinguishments of the claims/ waiver, concession outstanding dues/ outstanding liabilities of the or relief to be creditor of the CD, whether provided in the books granted by this of the CD or not, made pursuant to the approved Adjudicating Resolution Plan. All demands of whatever nature Authority for the Financial years/ period up to the Effective Date; shall be deemed to have been waived/ written off/ extinguished and no amount shall be payable to the Income Tax Department by the Corporate Debtor.

3. III. The CD/RA shall be exempted from the This is for the applicability of section 56(2) (x) of the Income Tax relevant tax Act, 1961 due to consideration offered to authorities to Creditor which might be different to the fair value consider, and not of such assets. in the nature of a waiver, concession or relief to be granted by this Adjudicating Authority.

He submits that no claim was filed by the Income Tax Department in

CIRP process, hence, all claim up to the date is stand extensive in view of the Comp. App. (AT) (Ins.) No. 83 of 2022 3

Judgement passed by Hon'ble Supreme Court of India in 'Ghanashyam

Mishra & Sons Pvt. Ltd. vs. Edelweiss Assets Reconstruction Company

Ltd.'

Learned Counsel for the Appellant further submitted that with regard to

any direct taxes in Serial No. 10 the Adjudicating Authority has record and

relied on 'Ghanashyam Mishra & Sons Pvt. Ltd. vs. Edelweiss Assets

Reconstruction Company Ltd.' and granted the relief and concession.

Learned Counsel for the Respondent No. 1 submitted that no claim was

filed in Income Tax Department in the CIRP Process.

We have heard Learned Counsel for the Parties.

Reply filed by the Resolution Professional in Paragraph 11 the following

has been stated:-

"11. The Applicant submits that in terms of the provisions of section 25(2)(h) of the Code read with regulation 36A(1) of the Insolvency and Bankruptcy Board of India (Insolvency Resolution Process for Corporate Persons) Regulations, 2016, invitations in Form 'G' for Expressions of Interest (Eol) from potential resolution applicants were issued three times, details fo which are given below:-

i. On 28.12.2019 in Business Standard, (English) and Aajkal (Bengal) newspapers of Kolkata edition. ii. On 31.01.2020 in Financial Express, (English) and Ekdin, Aajkal (Bengal) newspapers of Kokata edition.

iii. On 08.09.2020 in Business Standard, (English) and Ekdin, Aajkal (Bengal) newspapers of Kolkata edition."

From the material on record, it does appear that no claim was filed by

the Income Tax Department thus, all claims with regard to date of

commencement of the CIRP Process was 15.10.2019 shall stand extinguish in

Comp. App. (AT) (Ins.) No. 83 of 2022 4

view of the law laid down in Judgement passed by Hon'ble Supreme Court of

India in 'Ghanashyam Mishra & Sons Pvt. Ltd. vs. Edelweiss Assets

Reconstruction Company Ltd.

Adjudicating Authortiy had already referred in regard to indirect taxes

the same order ought to have been passed with regard to Clause-1, in

paragraph 31 at Serial No. 1, 2 & 3.

Learned Counsel for the Appellant submits that Adjudicating Authority

ought to have held that claims of the Income Tax Department till date of

extinguish in view of Judgement of Supreme Court of India which is mentioned

herein above.

In paragraph 31 at Serial No. 1, 2 & 3 we see no necessity to pass any

order. We just confine this appeal to at Serial No. 1 Clause 12.1.1 holding that

all payments of Income Tax Department till the commencement of CIRP shall

stand extinguish.

The appeal is allowed to the above extend.

[Justice Ashok Bhushan] Chairperson

[Mr. Naresh Salecha] Member (Technical) Simran/nn

Comp. App. (AT) (Ins.) No. 83 of 2022