Mr. Sunil Kumar Jain Rp vs Employee’S Provident Fund ...

[Arising out of the Impugned Order dated 21.03.2025 passed by the Adjudicating Authority, National Company Law Tribunal, New Delhi Bench in I.A. No. 470/2024 in C.P. (IB) No. 1683/ND/2018]

In the matter of: MR. SUNIL KUMAR JAIN (IBBI/IPA-002/IP-N00334/2017-2018/10917) (Resolution Professional of Vas Data Services Private Limited) 80-D, DDA Flats, Gulabi Bagh, Delhi-110007. .... APPELLANT

Versus EMPLOYEE'S PROVIDENT FUND ORGANIZATION (Ministry of Labour & Employment, Government of India) Through Regional Provident Fund Commissioner-II, Regional Office, Delhi, Central Bhavishyanidhi Bhavan, 28, Community Centre, Wazirpur Industrial Area, New Delhi - 110052. .... RESPONDENT Present: For Appellant : Mr. Pankaj Jain and Mr. Yuvraj Singh, Advocates along with Mr. Sunil Kumar Jain-RP in person. For Respondent : Mr. Braja Bandhu Pradhan, Mr. Sandeep Kumar and Mr. Kishor Kumar, Advocates.

WITH Company Appeal (AT) (Insolvency) No. 793 of 2025

[Arising out of the Impugned Order dated 21.03.2025 passed by the Adjudicating Authority, National Company Law Tribunal, New Delhi Bench in I.A. No. 470/2024 in C.P. (IB) No. 1683/ND/2018]

In the matter of: COMMITTEE OF CREDITORS OF VAS DATA SERVICES PRIVATE LIMITED (UNDER CIRP) THROUGH AUTHORIZED REPRESEANTATIVE Mr. PRADEEP KUMAR BANSAL D-108, CHARMS CASTLE RAJ NAGAR EXTENSION, GHAZIABAD - 201017 MOB: +91 9971824631 .... APPELLANT Versus

1. EMPLOYEE'S PROVIDENT FUND ORGANIZATION (Ministry of Labour & Employment, Government of India) Through Regional Provident Fund Commissioner-II, Regional Office, Delhi, Central Bhavishyanidhi Bhavan, 28, Community Centre, Wazirpur Industrial Area, New Delhi - 110052. .... RESPONDENT NO.1

2. M/s. MANSIR DAGER AND ASSOCIATES House No. 1322, Sector 14, Faridabad, Haryana - 121007. .... RESPONDENT NO.2

Present: For Appellant : Mr. Pankaj Jain and Mr. Yuvraj Singh, Advocates.

For Respondent : Mr. Braja Bandhu Pradhan, Mr. Sandeep Kumar and Mr. Kishor Kumar, Advocates for R1. Mr. Aditya Madaan, Advocates for SRA/ R2.

JUDGMENT

(Hybrid Mode)

Per: Barun Mitra, Member (Technical)

The present set of two appeal filed under Section 61 of Insolvency and

Bankruptcy Code 2016 ('IBC' in short) by the Appellants arises out of a common

Order dated 21.03.2025 (hereinafter referred to as 'Impugned Order') passed by

the Adjudicating Authority (National Company Law Tribunal, New Delhi Bench-

V) in I.A. No. 470/2024 in C.P. (IB) No. 1683/ND/2018. By the impugned order,

the Adjudicating Authority has allowed the I.A. No. 470 of 2024 filed by

Employees Provident Fund Organisation ("EPFO" in short) allowing their claim

of Rs 1,78,18,960/- as assessed under Sections 7A, 14B & 7Q of the EPF Act.

Aggrieved by the impugned order, Company Appeal No. 701 of 2025 has been

Page 2 of 20 Company Appeal (AT) (Insolvency) No. 701 & 793 of 2025 preferred by the Resolution Professional and Company Appeal No. 793 of 2025

has been filed by the Committee of Creditors ("CoC" in short)

2. Coming to the brief factual matrix of the case at hand, it is noticed that

the Corporate Debtor-Vas Data Services Pvt. Ltd. had been admitted into CIRP

on 09.04.2019 following which moratorium had come into play. The Interim

Resolution Professional had made a public announcement on 27.04.2019

inviting claims from all stakeholders and the Respondent-EPFO had received

intimation of the insolvency of the Corporate Debtor on 25.06.2019. The

Respondent had intimated the Resolution Professional ("RP" in short) on

13.01.2020 regarding an enquiry having been initiated against the Corporate

Debtor under the relevant provisions of EPF & MP Act. In the meantime, the CoC

had approved the resolution plan on 06.08.2020 and the Adjudicating Authority

had reserved orders on the approval of the resolution plan on 25.05.2021. The

Respondent-EPFO submitted an unsigned Form-B dated 11.01.2022 for Rs

3,17,667/- towards demand under relevant Sections of the EPF & MP Act, 1952

to the RP who in turn informed the EPFO on 17.01.2022 that the Form-B

received from them was unsigned and that the CoC had already approved the

resolution plan which was pending consideration of the Adjudicating Authority.

The Respondent-EPFO continued with their proceedings and passed orders

dated 21.11.2023 demanding a total of Rs 1,78,18,960/- and thereafter filed IA

No. 470 of 2024 before the Adjudicating Authority after lapse of 1757 days from

the CIRP commencement date seeking recovery demand of the said amount. The

Adjudicating Authority passed the impugned order dated 21.03.2025 allowing IA

Page 3 of 20 Company Appeal (AT) (Insolvency) No. 701 & 793 of 2025 No. 470 of 2024. Aggrieved by the impugned order, the present appeals have

been preferred by the Appellants-RP and CoC.

3. Making submissions on behalf of both the Appellants, Shri Pankaj Jain,

Ld. Counsel submitted that the Adjudicating Authority had erred in allowing the

IA No. 470 of 2024 since the said application was not maintainable as it had

been filed belatedly after passage of 1757 days from the CIRP commencement

date. The Respondent-EPFO had failed to file their claim with the IRP on time

though they had admittedly received a copy of the CIRP admission order on

09.04.2019 and with CIRP process being strictly time-bound, claims not filed

within the prescribed time-lines but filed late due to negligence cannot be

admitted. It was also submitted that the Adjudicating Authority committed a

mistake in overlooking the fact that the claim had been belatedly filed by EPFO

by way of an unsigned Form-B on 14.01.2022 also happened to be much after

the CoC had approved the resolution plan with 100% vote-share on 06.08.2020

on which the Adjudicating Authority had reserved its orders on 25.05.2021.

4. Besides the gross negligence of EPFO-Respondent in not filing their claim

on time, their claim was also based on assessment proceedings carried out

during the moratorium period which was clearly prohibited under Section 14(1)

of the IBC. Contention was pressed that the Adjudicating Authority had erred in

not considering the judgment of this Tribunal in EPFO Vs Jaykumar Pesumal

Arlani in CA(AT)(Ins) No. 1062 of 2024 wherein it was held that after initiation

of moratorium under Section 14(1) of IBC, no assessment proceedings can be

continued by the EPFO and no claim on the basis of assessment made during

the moratorium period can be pressed in CIRP. It was also pointed out that the Page 4 of 20 Company Appeal (AT) (Insolvency) No. 701 & 793 of 2025 Adjudicating Authority while allowing the claims of the EPFO basis assessment

proceedings drawn up during the moratorium period had conspicuously missed

the point that the Corporate Debtor was still under CIRP and not reached the

stage of liquidation. The Ld Counsel also contended that the Adjudicating

Authority has wrongly made adverse remarks against the RP in the conduct of

the CIRP proceedings by holding that the RP had held back details of the pending

suit filed by EPFO under Section 7A of the EPF & MP Act which amounted to a

violation of Regulation 36(2)(h) of the IBBI (Insolvency Resolution Process for

Corporate Persons) Regulations, 2016 ("CIRP Regulations" in short). In any case

no claim was put forth by EPFO relating to provident fund during preparation of

the Information Memorandum by the RP. It was also asserted that these adverse

remarks were passed by the Adjudicating Authority without seeking his

clarification and deserved expunction.

5. Making submissions on behalf of the Successful Resolution Applicant

("SRA" in short), the Ld. Counsel representing the SRA endorsing the arguments

canvassed by the two Appellants-RP and CoC also added that the belated EPFO

claims cannot be foisted on the SRA since these claims were not factorised by

them while submitting their resolution plan as they had no clue about the EPFO

proceedings and related claims.

6. Rebutting the arguments and contentions canvassed by the Appellant, it

was asserted by Shri Braja Bandhu Pradhan, Ld. Counsel for Respondent that

the Adjudicating Authority had by way of a reasoned order allowed the claims

filed by the Respondent-EPFO in exercise of the provisions contained in the EPF

& MP Act, 1952. It was contended that the EPF & MP Act being a social welfare Page 5 of 20 Company Appeal (AT) (Insolvency) No. 701 & 793 of 2025 legislation which protects the interests of labourers/employees, the claims filed

by the Respondent had been rightly taken into cognisance by the Adjudicating

Authority. It was asserted that the Adjudicating Authority had rightly noticed

that all sums due to any workman/employee from the provident fund, gratuity

fund or pension fund should not be included in the liquidation estate assets. It

was further added that several judgments of this Tribunal and by the Hon'ble

Supreme Court clearly laid down that the provisions of the PF Act needs to be

complied with. Reliance was placed on the judgment of this Tribunal in

Sikander Singh Jamuwal Vs Vinay Talwar & Ors. in CA (AT) (Ins) No. 483

of 2019 where in it has been held that the Successful Resolution Applicant

('SRA' in short) should release full provident fund dues in terms of the provisions

of EPF & MP Act. Reference was also made to the judgment of this Tribunal in

Tourism Finance Corporation of India Ltd. Vs Rainbow Papers Ltd. in CA

(AT) (Ins) No. 354 of 2019 wherein it was held that Provident Fund is not the

assets of the Corporate Debtor and hence the applicability of Section 238 of the

IBC does not arise. It was also pointed out that the Adjudicating Authority had

correctly relied on the decision of this Tribunal in Jet Aircraft Maintenance

Engineers Welfare Association Vs Ashish Chhawchharia, RP in CA (AT) (Ins)

No. 752, 643, 792, 801, 915 of 2021, 361, 771 & 987 of 2022 in which it

was held that workmen and employees are entitled to receive the amount of

Provident Fund and Gratuity in full since they do not form part of the Liquidation

Estate under Section 36(4)(b)(iii) of the IBC which decision was upheld by the

Hon'ble Supreme Court in Jalan Fritsch Consortium Vs Regional Provident

Fund Commissioner 2023 SCC OnLine SC106.

Page 6 of 20 Company Appeal (AT) (Insolvency) No. 701 & 793 of 2025

7. It was also asserted that though the RP was aware of the ongoing Section

7A proceedings under the EPF & MP Act before the commencement of CIRP, yet

it omitted to disclose this fact in the Information Memorandum. This failure to

disclose pertinent information by the RP constituted a breach of CIRP Regulation

36(2)(h) which mandates the RP to provide details of all

litigation/investigation/proceeding initiated by the government/statutory

authorities. In support of their contention, reliance was placed on the judgment

of the Hon'ble Supreme Court in Essar Steel Vs Satish Kumar Gupta (2019)

20 SCC 273 wherein the Hon'ble Apex Court had emphasised that the RP must

ensure complete transparency in disclosing all pending proceedings to the CoC

and the Adjudicating Authority.

8. We have duly considered the arguments advanced by the Learned Counsel

for all the parties and perused the records carefully.

9. The short point which arises for our consideration is whether assessment

proceedings could have been pursued by the EPFO under Sections 7A, 14B and

7Q of the EPF & MP Act after imposition of moratorium under Section 14 of the

IBC and whether claims arising out of such assessment made subsequent to

imposition of moratorium can be admitted in the CIRP after approval of

resolution plan by the CoC with 100% vote-share.

10. It is the case of the Appellants that it is an admitted fact that the Corporate

Debtor had been admitted into CIRP on 09.04.2019. The Information

Memorandum had been approved by the CoC on 20.12.2019 before being shared

by the RP with resolution applicants. The resolution plan was finally approved

by CoC on 06.08.2020 and filed before the Adjudicating Authority in September Page 7 of 20 Company Appeal (AT) (Insolvency) No. 701 & 793 of 2025 2020. With the commencement of CIRP, the provisions of moratorium stood

enforced and since the EPFO proceeded to finalise the assessment proceeding

on 20.11.2023 while moratorium was subsisting, the RP had rightly rejected the

claim of the EPFO on 07.12.2023 on grounds of being time-barred and contrary

to moratorium. It is contended that the Respondent could not have continued

with the assessment proceedings during the CIRP period as such proceeding

during moratorium is non-est in law. It was contended that moratorium was not

only a procedural embargo but a substantive statutory protection forming the

backbone of the CIRP. It was also pointed out that Section 238 of IBC has

overriding effect over any other law which is repugnant or inconsistent to the

statutory provisions of the IBC and hence prevails over parallel statutory

recovery proceedings of the EPFO during moratorium.

11. Per contra, it is the contention of the Respondent that the provident fund

dues of the employees are exclusively owned by the employees and, therefore,

the IRP/RP cannot alienate or transfer such assets. Assertion was made that

workmen and employees are entitled to receive in full the amount of provident

fund and gratuity. The provisions of EPF & MP Act 1952 being a social welfare

legislation, the provident fund dues do not form part of the liquidation estate of

the Corporate Debtor, therefore, the claims arising out of provident fund dues

cannot be denied even if the assessment proceedings were completed on

22.11.2023 by EPFO. Thus, the Adjudicating Authority vide impugned order had

rightly allowed IA No. 470 of 2024 preferred by the Respondent and directed the

RP to finalise the claim of the EPFO as a pre-condition for approval of the plan.

Page 8 of 20 Company Appeal (AT) (Insolvency) No. 701 & 793 of 2025

12. The moot question whether assessment proceedings could have been

pursued by the EPFO under Sections 7A, 14B and 7Q of the EPF & MP Act after

imposition of moratorium under Section 14 of the IBC has already been well

settled by this Tribunal in Jaykumar Pesumal Arlani judgment supra

wherein exactly this question was framed and answered. In fact this judgement

also dwelled upon the question as to whether claims based on assessment

proceedings during subsistence of moratorium can be admitted in CIRP.

13. At this stage we may turn our attention to the Jaykumar Pesumal Arlani

judgment supra wherein this Tribunal had clearly posed identical issues for its

consideration at para 9 of the judgment and returned its findings at paras 23

and 24 thereof. The relevant extracts of this judgment are as reproduced below:

"9. From the submissions of learned Counsel for the parties, following issues arise for consideration:

(1) Whether after imposition of moratorium under Section 14 of the IBC, assessment proceedings can be carried on by the EPFO under Section 7A, 14B and 7Q of the EPF & MP Act, 1952.

(2) Whether any claim on the basis of assessment, subsequent to imposition of moratorium, can be admitted in the CIRP.

(3) Whether claims, which were filed by the Appellant(s), subsequent to the approval of Resolution Plan by the CoC, could have been admitted in the CIRP.

23. In the present case, admittedly assessment has been completed after initiation of the moratorium. We, thus, are of the view that once order of liquidation is passed, moratorium under Section 14 comes to an end and moratorium under Section 33(5), which is differently worded, comes into play. Under Section 33(5), the expression used are "suit or other legal proceeding", which occurs in Section 446 of sub-section (1) noticed above. Thus, bar is only against suit or legal proceeding and there is no bar against assessment proceeding to be conducted by statutory Authorities, including the EPFO. Thus, after

Page 9 of 20 Company Appeal (AT) (Insolvency) No. 701 & 793 of 2025 the liquidation, it is open for EPFO to carry on the assessment. Section 33(5), cannot be held to apply on assessment proceedings. However, while looking to the expression used in Section 14(1), assessment proceedings before the EPFO, cannot be continued after initiation of CIRP.

24. In view of the aforesaid, we answer Question Nos.(1) and (2) in following manner:

(1) We hold that after initiation of moratorium under Section 14, sub-

section (1), no assessment proceedings can be continued by the EPFO. If after an order of liquidation is passed, Section 33, sub-section (5), does not prohibit initiation or continuation of assessment proceedings.

(2) No claim on the basis of assessment carried during the moratorium period, which is prohibited under Section 14(1) can be pressed in the CIRP."

(Emphasis supplied)

14. When we look at the above judgement, it is crystal-clear that once

moratorium under Section 14(1) of the IBC is imposed there can be no institution

of suits or continuation of pending suits or proceedings against the Corporate

Debtor. The Tribunal has also looked into the differential impact on the conduct

of assessment proceedings by the EPFO during CIRP period and liquidation

phase and categorically held that there is prohibition on any assessment carried

out by the EPFO during the moratorium period. It is an undisputed fact that the

EPFO in the present case had passed the assessment order under EPF & MP Act

on 21.11.2023 which clearly fell during the moratorium period. Since there is no

dispute over the fact that the assessment orders were passed by the EPFO after

commencement of CIRP and not during liquidation, the assessment order and

the claims arising therefrom is clearly unenforceable during the subsistence of

moratorium.

Page 10 of 20 Company Appeal (AT) (Insolvency) No. 701 & 793 of 2025

15. We are also guided by an earlier precedent set by this Tribunal in Harry

Dhaul Vs. Regional Provident Fund Commissioner-II in CA(AT)(Ins) No.

1691 of 2024 wherein this Tribunal has also reiterated that a demand made by

the EPFO after initiation of moratorium is not enforceable in view of the statutory

provisions of Section 14(1) of the IBC. It is pertinent to add here that this

Tribunal in the above judgment had arrived at this finding after considering the

judgments of the Hon'ble Supreme Court in Rajendra K. Bhutta Vs

Maharashtra Housing and Area Development Authority (2020) 13 SCC 208

and this Tribunal in Jaykumar Pesumal Arlani judgment supra. The relevant

excerpts of the above judgment read as follows:

"16. Having noted the above facts, we now would like to dwell upon the tenability of claims of EPFO. To arrive at our view, we need to first consider whether assessment proceedings could have been conducted by the EPFO under Sections 7A, 7Q and 14B of the EPF Act after imposition of moratorium under Section 14 of IBC and whether any claim on the basis of such assessment carried out by EPFO during moratorium could have been admitted by the Adjudicating Authority.

17. We are squarely guided by the precedent laid down by this Tribunal in CA Pankaj Shah Vs Employee Provident Fund Organisation & Anr. in CA (AT) (Ins) No. 17 of 2025 where this issue of whether assessment proceedings can be continued by EPFO after initiation of moratorium under Section 14(1) of IBC has been considered at length after relying on the judgment of the Hon'ble Supreme Court in Rajendra K. Bhutta Vs Maharashtra Housing and Area Development Authority (2020) 13 SCC 208.

18. The relevant excerpts of the said judgment are as extracted hereunder:

"7. The demand made by the EPFO on the basis of inspection dated 10.05.2023 is clearly demand from the Corporate Debtor after commencement of the Moratorium. Similarly, revised claim submitted on 26.09.2023 on the basis of orders passed on 25.09.2023 where demand in pursuance of subsequent to

Page 11 of 20 Company Appeal (AT) (Insolvency) No. 701 & 793 of 2025 Moratorium. This Tribunal has occasion to examine the consequences of Moratorium on assessment made by EPFO in Company Appeal (AT) (Insolvency) No.1062 of 2024- "Employees' Provident Fund Organisation Regional Office vs. Jaykumar Persumal Arlani, Resolution Professional of Ms/. Decent Laminates Pvt. Ltd."

with Company Appeal (AT) (Insolvency) No. 1065 of 2024- -

"Employees' Provident Fund Organisation Regional Office vs. Sanjay Kumar Lalit, Resolution Professional of Apollo Soyuz Electricals P. Ltd. & Anr." decided on 03.01.2025. In the above case also, after commencement of the CIRP, EPFO initiated proceeding under Section 7A and passed an order under Section 7A, 7Q & 14B. Application was filed by EPFO before the Adjudicating Authority seeking a direction to the Resolution Professional to admit the claim which claim to be rejected. This Tribunal in the above case, examined the consequence of Moratorium and held that the assessment proceeding cannot be continued after initiation of CIRP. This Tribunal in the above judgment had framed questions in paragraph 9 which are as follows:-"

"9. From the submissions of learned Counsel for the parties, following issues arise for consideration:

(1) Whether after imposition of moratorium under Section 14 of the IBC, assessment proceedings can be carried on by the EPFO under Section 7A, 14B and 7Q of the EPF & MP Act, 1952.

(2) Whether any claim on the basis of assessment, subsequent to imposition of moratorium, can be admitted in the CIRP.

(3) Whether claims, which were filed by the Appellant(s), subsequent to the approval of Resolution Plan by the CoC, could have been admitted in the CIRP."

8. While answering Question Nos.1 and 2, this Tribunal has relied on the judgment of the Hon'ble Supreme Court in "(2020) 13 SCC 208

- Rejendra K. Bhutta vs. Maharashtra Housing and Area Development and Anr". In paragraphs 11, 12 & 13, following was laid down:

"11. The Hon'ble Supreme Court had occasion to consider effect and consequence of imposition of moratorium. The Hon'ble Supreme Court in (2020) 13 SCC 208 - Rejendra K. Bhutta vs. Maharashtra Housing and Area Development and Anr. held that after the imposition of moratorium, a statutory freeze takes place. In paragraph 25 of the judgment, following was held:

Page 12 of 20 Company Appeal (AT) (Insolvency) No. 701 & 793 of 2025 "25. There is no doubt whatsoever that important functions relating to repairs and reconstruction of dilapidated buildings are given to MHADA. Equally, there is no doubt that in a given set of circumstances, the Board may, on such terms and conditions as may be agreed upon, and with the previous approval of the Authority, hand over execution of any housing scheme under its own supervision. However, when it comes to any clash between MHADA Act and the Insolvency Code, on the plain terms of Section 238 of the Insolvency Code, the Code must prevail. This is for the very good reason that when a moratorium is spoken of by Section 14 of the Code, the idea is that, to alleviate corporate sickness, a statutory status quo is pronounced under Section 14 the moment a petition is admitted under Section 7 of the Code, so that the insolvency resolution process may proceed unhindered by any of the obstacles that would otherwise be caused and that are dealt with by Section

14. The statutory freeze that has thus been made is, unlike its predecessor in the SICA, 1985 only a limited one, which is expressly limited by Section 31(3) of the Code, to the date of admission of an insolvency petition up to the date that the adjudicating authority either allows a resolution plan to come into effect or states that the corporate debtor must go into the liquidation. For this temporary period, at least, all the things referred to under Section 14 must be strictly observed so that the corporate debtor may finally be put back on its feet albeit with a new management."

12. In (2021) 6 SCC 258 - P. Mohanraj and Ors. Vs. Shah Brothers ISPAT Pvt. Ltd., the Hon'ble Supreme Court had occasion to interpret the expression "proceeding" in Section 14. The object and purpose of moratorium has been captured in paragraph 30 of the judgment, which is as follows:

"30. It can be seen that Para 8.11 refers to the very judgment under appeal before us, and cannot therefore be said to throw any light on the correct position in law which has only to be finally settled by this Court. However, Para 8.2 is important in that the object of a moratorium provision such as Section 14 is to see that there is no depletion of a corporate debtor's assets during the insolvency resolution process so that it can be kept running as a going concern during this time, thus maximising value for all stakeholders. The idea is that it facilitates the Page 13 of 20 Company Appeal (AT) (Insolvency) No. 701 & 793 of 2025 continued operation of the business of the corporate debtor to allow it breathing space to organise its affairs so that a new management may ultimately take over and bring the corporate debtor out of financial sickness, thus benefitting all stakeholders, which would include workmen of the corporate debtor. Also, the judgment of this Court in Swiss Ribbons (P) Ltd. v. Union of India [Swiss Ribbons (P) Ltd. v. Union of India, (2019) 4 SCC 17] states the raison d'être for Section 14 in para 28 as follows: (SCC p. 55)

"28. It can thus be seen that the primary focus of the legislation is to ensure revival and continuation of the corporate debtor by protecting the corporate debtor from its own management and from a corporate death by liquidation. The Code is thus a beneficial legislation which puts the corporate debtor back on its feet, not being a mere recovery legislation for creditors. The interests of the corporate debtor have, therefore, been bifurcated and separated from that of its promoters/those who are in management. Thus, the resolution process is not adversarial to the corporate debtor but, in fact, protective of its interests. The moratorium imposed by Section 14 is in the interest of the corporate debtor itself, thereby preserving the assets of the corporate debtor during the resolution process. The timelines within which the resolution process is to take place again protect the corporate debtor's assets from further dilution, and also protects all its creditors and workers by seeing that the resolution process goes through as fast as possible so that another management can, through its entrepreneurial skills, resuscitate the corporate debtor to achieve all these ends."

13. The plain reading of Section 14, sub-section (1) indicates that expression 'suits or proceedings against the corporate debtor' has been used. The word 'proceeding' is not qualified, so as to confine it to proceedings before the Civil Court. The proceedings, which have the effect on the assets of the CD are all covered in the expression 'proceeding'. The question to be answered is as to whether after moratorium has been imposed, it was open for EPFO to proceed with the assessment proceeding. Learned Counsel for the parties state that during moratorium proceeding, no recovery proceeding can be initiated against the CD. However, submissions Page 14 of 20 Company Appeal (AT) (Insolvency) No. 701 & 793 of 2025 of the learned Counsel for the Appellant is that assessment proceedings against the CD may continue. Hence, the orders of assessment passed during moratorium period, were fully permissible and the claim on the basis of the said proceedings had to be admitted in CIRP."

9. After considering the submission of the parties, this Tribunal came to the conclusion that after initiation of the CIRP, assessment proceedings cannot be continued. In paragraphs 23 & 24, following was laid down:

"23. In the present case, admittedly assessment has been completed after initiation of the moratorium. We, thus, are of the view that once order of liquidation is passed, moratorium under Section 14 comes to an end and moratorium under Section 33(5), which is differently worded, comes into play. Under Section 33(5), the expression used are "suit or other legal proceeding", which occurs in Section 446 of sub-section (1) noticed above. Thus, bar is only against suit or legal proceeding and there is no bar against assessment proceeding to be conducted by statutory Authorities, including the EPFO. Thus, after the liquidation, it is open for EPFO to carry on the assessment. Section 33(5), cannot be held to apply on assessment proceedings. However, while looking to the expression used in Section 14(1), assessment proceedings before the EPFO, cannot be continued after initiation of CIRP.

24. In view of the aforesaid, we answer Question Nos. (1) and (2) in following manner:

(1) We hold that after initiation of moratorium under Section 14, sub-section (1), no assessment proceedings can be continued by the EPFO. If after an order of liquidation is passed, Section 33, subsection (5), does not prohibit initiation or continuation of assessment proceedings.

(2) No claim on the basis of assessment carried during the moratorium period, which is prohibited under Section 14(1) can be pressed in the CIRP."

10. The above judgment clearly indicates that after initiation of the CIRP, no assessment can be initiated or continued against the Corporate Debtor so as to pass any pecuniary liability on the Corporate Debtor. In the present case, the EPFO has made demand on the basis of an Page 15 of 20 Company Appeal (AT) (Insolvency) No. 701 & 793 of 2025 alleged inspection report dated 10.05.2023 and assessment order dated 25.09.2023 which both were subsequent to initiation of CIRP on 17.02.2023. When no demand can be made on the basis of any inspection or assessment, we do not find any ground to allow the application IA No.409 of 2024 which was filed by EPFO where direction was sought to allow the entire claim of Rs.1,37,17,837/-."

The above judgment fortifies the settled principle that any assessment made by

the EPFO subsequent to the commencement of CIRP during moratorium period

cannot be ground to accept any claim in the CIRP process.

16. We now come to the next inter-related question as to whether the present

claims were filed belatedly after the CoC had approved the plan and if so whether

such belated claims could have been admitted by the RP. When we look at the

facts on record, we find that the Respondent did not file their claim with the IRP

on time though they had admittedly received a copy of the CIRP admission order

on 09.04.2019. When the Information Memorandum was approved by the CoC,

until then there was no claim submitted by the Respondent-EPFO nor was any

information given by them about pending EPFO proceedings. We also find that

the IRP had invited claims on 27.04.2019 with the last date of filing claims being

10.05.2019 as seen at pages 44-53 of APB of CA 701 of 2025 or submitted their

claim within the prescribed time-line. Claim had been filed by EPFO much later

by way of an unsigned Form-B on 14.01.2022. This happened to be much after

the CoC had approved the resolution plan with 100% vote-share on 06.08.2020

on which the Adjudicating Authority reserved its orders on 25.05.2021.

Furthermore, the RP had also rejected the claim on 17.01.2022 on account of

late submission of claim form as the plan had already been approved by the CoC

on 06.08.2020. Subsequently, when the Respondent-EPFO finalised the Page 16 of 20 Company Appeal (AT) (Insolvency) No. 701 & 793 of 2025 assessment proceeding on 20.11.2023 and forwarded the same to the RP on

21.11.2023, the RP had sent an e-mail to the Respondent on 07.12.2023

intimating that the claim arising out of the order of 20.11.2023 cannot be

accepted or admitted by him and had advised the Respondent to approach the

Adjudicating Authority. It is therefore an admitted fact that the claims were filed

by the EPFO subsequent to approval of the resolution plan by the CoC on which

the Adjudicating Authority had reserved its orders on 25.05.2021.

17. It is settled law that after the resolution plan is approved by the CoC but

pending before the Adjudicating Authority, no new claims can be entertained. It

may be relevant to advert attention to the judgment of the Hon'ble Supreme

Court in M/s RP Infrastructure Ltd. vs Mukul Kumar & Anr. in Civil Appeal

No. 5590 of 2021 which is as extracted below:

"19. The second question is whether the delay in the filing of the claim by the Appellant ought to have been condoned by the Respondent No. 1. The IBC is time bound process. There are, of course, certain circumstances in which the time can be increased. The question is whether the present case would fall within those parameters. The delay on the part of the Appellant is of 287 days. The Appellant is a commercial entity. That they were litigating against the corporate debtor is an undoubted fact. We believe that the Appellant ought to have been vigilant enough in the aforesaid circumstances to find out whether the corporate debtor was undergoing CIRP. The Appellant has been deficient on this aspect. The result, of course, is that the Appellant to an extent has been left high and dry.

21. The mere fact that the Adjudicating Authority has yet not approved the plan does not imply that the plan can go back and forth, thereby making the CIRP an endless process. This would result in there opening of the whole issue, particularly as there may be other similar person who may jump onto the bandwagon. As described above, in Essar Steel, the Court cautioned against allowing claims after the resolution plan has been accepted by the COC.

Page 17 of 20 Company Appeal (AT) (Insolvency) No. 701 & 793 of 2025

22. We have thus come to the conclusion that the NCLAT's impugned judgment cannot be faulted to reopen the chapter at the behest of the appellant. We find it difficult to unleash the hydra-headed monster of undecided claims on the resolution applicant.

23. The mere fact that the adjudicating authority has yet not approved the plan does not imply that the plan can go back and forth, thereby making the CIRP an endless process. This would result in the reopening of the whole issue, particularly as there may be other similar persons who may jump on to the bandwagon. As described above, in Essar Steel, the Court cautioned against allowing claims after the resolution plan has been accepted by the CoC."

18. Viewed against the backdrop of the above judgement, when the claims had

been filed belatedly by the EPFO, the Adjudicating Authority committed an error

in admitting the claim. In this case, there is all the more reason for the

Adjudicating Authority not to have admitted the claim since the claim was not

only filed by EPFO with a lot of delay but the claim was also made on the basis

of assessment which had been carried out subsequent to initiation of

moratorium and was hit by Section 14(1) of IBC. Further the Jet Aircraft

judgment supra judgment relied upon by the Adjudicating Authority while

allowing the claim is not applicable since that judgment clearly dealt with EPFO

entitlement during liquidation while in the facts of the present case, the

resolution plan had been approved by the CoC and was pending consideration

and approval of the Adjudicating Authority and was yet to reach the stage of

liquidation. The judgments relied upon by the Respondent have no relevance

since those judgments pertain to issues arising at the stage of liquidation while

the present matter relates to CIRP period.

Page 18 of 20 Company Appeal (AT) (Insolvency) No. 701 & 793 of 2025

19. This brings us to the question as to whether the RP in the conduct of the

CIRP proceedings had committed breach of the CIRP Regulations. It is the finding

of the Adjudicating Authority that the CIRP Regulations mandate the RP to

disclose all relevant details of litigations and hence non-disclosure of this

information by the RP undermined the integrity of the CIRP. However, where the

Adjudicating Authority committed an error was that it overlooked the practical

fact that the RP and the CoC had to rely on information provided by the

suspended management of the Corporate Debtor with regard to pending

litigations/legal proceedings relating to the Corporate Debtor. As per records

placed before us, this information was provided by the suspended management

of the Corporate Debtor on 18.10.2019 as is placed at pages 218-221 of APB in

Company Appeal No. 701 of 2025 and clearly this list did not include proceedings

pending before the EPFO. The EPFO has also not produced any proof that it had

given any intimation of the EPFO proceeding to the IRP/RP. Hence, when there

was no information about pending proceedings received from the EPFO or the

suspended management of the Corporate Debtor nor was any claim submitted

by EPFO to the IRP/RP before the last date fixed for submission of claims, the

RP cannot be said to have acted in breach of the CIRP Regulations. Hence, there

is sufficient justification that the remarks made against the RP deserve to be set

aside.

20. In view of the above discussions, we are of the considered view that no

assessment proceedings could have been continued by the EPFO after initiation

of moratorium under Section 14(1) of IBC and further the claims having been

filed belatedly after the resolution plan had already been approved by the CoC, Page 19 of 20 Company Appeal (AT) (Insolvency) No. 701 & 793 of 2025 the directions of the Adjudicating Authority to consider these claims cannot be

sustained. We also find substance in the contention of the RP that the adverse

remarks made by the Adjudicating Authority with regard to his conduct and

holding him to have acted in breach of the CIRP Regulations are unfounded and

deserve to be expunged. We therefore find merit in both the appeals. We set aside

the impugned order and also direct expunction of the remarks contained in para

14 and 16 of the impugned order with regard to conduct of the RP in rejecting

the EPFO claims. No order as to cost.

[Justice Ashok Bhushan] Chairperson

[Barun Mitra] Member (Technical)

Place: New Delhi Date: 10.03.2026

Abdul

Page 20 of 20 Company Appeal (AT) (Insolvency) No. 701 & 793 of 2025