Mohit Chawla Liquidator Of M/S Lakshmi ... vs Dy. Commissioner Income Tax Central ...

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NATIONAL COMPANY LAW APPELLATE TRIBUNAL PRINCIPAL BENCH NEW DELHI COMPANY APPEAL (AT)(INS) NO.1442/2023 & IA NO.5120 OF 2023 In the matter of: Mohit Chawla Liquidator of Lakshmi Energy and Foods Ltd Appellant Vs Dy. Commissioner Income Tax Central Circle 3 Ludhiana Respondent For Appellant:Mr Harsh Garg, Advocate. For Respondent:Mr Puneet Rai, Sr Standing Counsel, Mr. Rishabh Nangia, Jr Standing Counsel, Mr Ashvini Kumar, Jr Standing Counsel, Mr. Nikhil Jain, Advocates. ORDER

HYBRID MODE 06.12.2024:This is an appeal against an impugned order dated 06.07.2023.

The impugned order was passed on an application filed by the Income Tax

Department/Respondent for setting aside of letter dated 07.11.2022 issued

by the Liquidator of M/s Lakshmi Energy and Foods Ltd on the ground there

is delay in filing of its claim and rather the claim was already rejected on

27.08.2022.

2. The impugned order passed by the Ld. NCLT held there was no delay in

filing the claim by the respondent as it was filed on 16.03.2020 prior to the

liquidation of M/s Lakshmi Energy and Foods Ltd. In para 8 of the impugned

order the Ld. NCLT records since the dues of the Respondent are Government 2

dues they need to be treated as secured creditors. The challenge in this

appeal is the Income Tax dues can not be equated with dues of secured

creditors.

3. If one peruse the claim documents of the Income Tax Department filed

with the RP and the then Liquidator; the respondent Department is claiming

itself to be an operational creditor and not a secured creditor. Its claim and its

updated claim(s) are annexed with Appeal Paper Book at Pages No.86, 90, 93

and 100. The said documents reveal the respondent department made a

claim as an operational creditor within the meaning of section 5(20) of I&B

Code and hence to this effect the observation made by the Ld. NCLT that the

debt is of a secured creditor needs to be set aside.

4. Qua delay the learned counsel for the appellant submits the claim was

initially filed by the respondent on 29.06.2022 and it was rejected on

22.08.2022. It is further argued an appeal under Section 42 of I&B Code

against such rejection of claim was to be filed before the Ld. Adjudicating

Authority within 14 days but was not filed within such period.

5. However, if one peruse claim documents, one would find the claim was

initially filed on 16.03.2020. The claim form filed reveal penalty proceedings

under Section 271(1)(c )of the Income Tax Act, 1961, which were still pending

against the Company for the A.Y 2013-14 and 2017-18 and it noted, its non-

compliance would lead to further demands. The claim form dated August

2022 revealed the penalty proceedings qua financial year 2017-18 were

complete but the penalty proceedings for the AY 2013-14 were still pending

and non-compliance could lead to further demand. The updated claim as on 3

26.8.2022 was for Rs.118,62,92,493/- and an updated claim of

Rs.126,58,50,964/- as on 4.11.2022 were subsequently lodged after

completion of penalty proceedings for AY 2013-14 but was rejected on

07.11.2022.

6. Thus from documents we find per Regulation 12(2) of IBBI (Liquidation

Process) Regulations, 2016, there has been no delay in filing of the claim as

was initially filed during the continuation of CIRP. The issue viz. if Income

Tax dues, are dues of a secured creditor has no relevance in the context of

this case as Income Tax Department has filed its claim as an operational

creditor . Thus this issue is left open.

7. The Appeal is disposed of in terms of the above.

8. Pending applications stands disposed of.

(Justice Yogesh Khanna) Member (Judicial)

((Mr. Ajai Das Mehrotra) Member (Technical) Bm/md