Pr. Commissioner Of Income Tax-1 vs Sumat Gupta (Resolution Profession Of ...

NATIONAL COMPANY LAW APPELLATE TRIBUNAL PRINCIPAL BENCH, NEW DELHI Company Appeal (AT) (Ins.) No. 1531 of 2022 & I.A. No. 4880 of 2022 IN THE MATTER OF: Pr. Commissioner of Income Tax-1, Chandigarh ...Appellant

Versus

Sumat Gupta RP of M/s International Mega Food Park Ltd. ...Respondent Present: For Appellant: Mr. Sanjay Kumar & Easha, Standing Counsel for Income Tax Department. For Respondent: None for Respondent.

ORDER

Per: Justice Rakesh Kumar Jain:

02.01.2023: This appeal is directed against the order dated

04.08.2022, by which an application filed under Section 60(5) of the

Insolvency and Bankruptcy Code, 2016 (in short 'Code') by the Resolution

Professional (RP) vide I.A. No. 460 of 2020 was allowed. The appeal is

accompanying three applications i.e. I.A. No. 4879 of 2022 for stay of the

impugned order, I.A. No. 4855 of 2022 for condonation of delay of 23 days in

re-filing of the appeal and I.A. No. 4880 of 2022 for condonation of delay of

59 days in filing of the appeal.

2. Since, other applications and the appeal itself cannot be heard until

and unless the application for condonation of delay is condoned, therefore, we have requested counsel for the Appellant to address the argument on the

said application.

3. Counsel for the Appellant has argued that the delay of 59 days caused

in filing of the appeal is procedural and there is nothing deliberate on the part

of the department. Counsel for the Appellant has relied upon the judgments

in which the Hon'ble Supreme Court has said that meritorious matter may

not be thrown at the threshold only on the ground of delay.

4. We have heard Counsel for the Appellant and perused the record with

their able assistance.

5. In brief, Small Industries Development Bank of India (SIDBI), as a

Financial Creditor filed an application under Section 7 of the Code, against

International Mega Food Park Limited (Corporate Debtor), bearing CP (IB) No.

174/CHD/2018, which was admitted. Thereafter, an application bearing no.

460 of 2020 was filed by the RP in terms of Section 60(5) of the Code which

was allowed by the Adjudicating Authority on 04.08.2022 and direction was

issued to the Appellant (Commissioner of Income Tax-1, Chandigarh) to

release the refund of an amount of Rs. 43,49,040/- with interest.

6. Section 61(2) of the Code deals with the period of limitation in filing of

an appeal before the Appellate Tribunal. Section 61(2) provides 30 days' time

for filing the appeal in routine whereas the proviso appended to Section 61(2)

further provides a window of 15 days for condonation of delay in case a

sufficient cause is made out by the Appellant. However, in the present appeal,

the delay is of 59 days i.e. much beyond in period of 45 days and in view of

the decision of the Hon'ble Supreme Court in Civil Appeal No. 6187 of 2019 'National Spot Exchange Limited Vs. Mr. Anil Kohli, Resolution Professional

for Dunar Foods Limited' there is hardly any scope in this application for the

purpose of condonation of delay because the Hon'ble Supreme Court has said

that the limitation beyond 15 days cannot be condoned.

7. Thus, in view of the aforesaid facts and circumstances, this Tribunal

does not have the jurisdiction to consider the application of the Appellant for

condonation of delay beyond the period of 15 days which is so provided in the

proviso of Section 61(2) of the Code. No other point has been argued.

8. In view of the aforesaid facts and circumstances, the present

application is found without any merit and the same is hereby dismissed.

Since, we have dismissed the application for condonation of delay, therefore,

the present appeal i.e. CA (AT) (Ins) No. 1531 of 2022 is not found duly

constituted and hence, the appeal is also dismissed alongwith other two

applications i.e. 4875 of 2022 for stay of impugned order and I.A. No. 4855 of

2022 for condonation of delay in re-filing of the appeal.

[Justice Rakesh Kumar Jain] Member (Judicial)

[Mr. Naresh Salecha] Member (Technical)

Sheetal/Manu