The Deputy Commissioner Of Gst And ... vs Vijaykumar V. Iyer Rp For Dishnet ...

IN THE MATTER OF: The Deputy Commissioner of GST And Central Excise, Nungambakkam Division, Chennai North Commissionerate No. 26/1, 5th Floor, Annex Building Mahatma Gandhi Road, Cheenai - 600034 ...Appellant. Versus 1. Mr. Vijaykumar V. Iyer Resolution Professional of Dishnet Wireless Limited Deloitte Touche India LLP, Indiabulls Finance Centre Tower 2, 27th Floor, Senapati Bapat Marg, Elphinstone Road (West) Mumbai - 400013 Email : viyer@deloitte.com ...Respondent No. 1

2. UV Asset Reconstruction Company Ltd. Resolution Applicant 704, Deepali Building 92, Nehru Place New Delhi - 110019 Email: ceo@uvarcl.com and uvarcl@gmail.com ... Respondent No. 2

For Appellant: Ms. Samiksha Goyal, Advocate Mr. M. Santhanaraman, Sr. Standing Counsel. For Respondent: Mr. Vaijayant Paliwal, Mr. Charu Bansal, Ms. Salonee Kulkarni, Ms. Kriti Kalyani, Advocates for R-1, RP.

With Company Appeal (AT) (Insolvency) No. 605 of 2021

IN THE MATTER OF: The Deputy Commissioner of GST And Central Excise, Nungambakkam Division, Chennai North Commissionerate No. 26/1, 5th Floor, Annex Building Mahatma Gandhi Road, Cheenai - 600034 ...Appellant. 2

Versus 1. Mr. Vijaykumar V. Iyer Resolution Professional of Aircel Cellular Limited Deloitte Touche India LLP, Indiabulls Finance Centre Tower 2, 27th Floor, Senapati Bapat Marg, Elphinstone Road (West) Mumbai - 400013 Email : viyer@deloitte.com ...Respondent No. 1 2. UV Asset Reconstruction Company Ltd. Resolution Applicant 704, Deepali Building 92, Nehru Place New Delhi - 110019 Email: ceo@uvarcl.com and uvarcl@gmail.com ... Respondent No. 2

For Appellant: Ms. Samiksha Goyal, Advocate Mr. M. Santhanaraman, Sr. Standing Counsel. For Respondent: Mr. Vaijayant Paliwal, Mr. Charu Bansal, Ms. Salonee Kulkarni, Ms. Kriti Kalyani, Advocates for R-1, RP.

ORDER

(Virtual Mode)

16.08.2021 Heard Learned Counsel for the Appellant in both these Appeals.

Company Appeal (AT) (Ins.) No. 604 of 2021

2. This Appeal has been filed by the Deputy Commissioner of GST and

Central Excise against the Impugned Order dated 09th June, 2020 in I.A. No.

1863/MB.II/2019 in CP (IB) No. 302/MB.II/2018 passed by the Ld.

Adjudicating Authority (National Company Law Tribunal, Mumbai Bench -II).

By the Impugned Order, the Adjudicating Authority approved the Resolution

Plan submitted by Respondent No. 2- UV Asset Reconstruction Company Ltd.

3. The Learned Counsel for the Appellant submits that the Appellant had

no notice of the Corporate Insolvency Resolution Process (CIRP in short). The

Company Appeal (AT) (Ins) No. 604-605 of 2021 3

Learned Counsel states that there were earlier pending litigations between the

Department of the Appellant and the Corporate Debtor-Dishnet Wireless Ltd.

in which orders had already been passed. The Learned Counsel submits that

even in records of the Corporate Debtor, there must be records available with

regard to the dues payable to the Appellant. The Learned Counsel states that

in spite of this when the Resolution Plan was approved no provisions were

made to provide for the dues of the Appellant which were operational dues.

Learned Counsel submits that if the Impugned Order (Annexure A-1) is seen

at Page 49 of the Impugned Order where paragraph 6.7 form the Resolution

Plan is referred it can be seen that the Adjudicating Authority accepted the

Resolution Plan giving reliefs to the Corporate Debtor with regard to the Action

initiated by the Appellant. Reference is made to Clause 9.1.4 of Paragraph

6.7 at Page 92 of the Appeal which reads as under:

Clause Dispensation Orders thereon 9.1.4 The central Board of Excise and Customs to not void the

transactions contemplated under the Resolution Plan Granted. (including a potential sale of Assets) under Section 81 of the Central Goods and Service Tax Act, 2017 and not impose any successor liability on the Resolution Applicant and the Corporate Debtor.

4. The Learned Counsel thus submits that Appellant was not before the

Adjudicating Authority and although the particulars of dues would be

available with the Corporate Debtor, the claims were not provided for in favour

of the Appellant and instead Relief was granted against the actions taken by

the Appellant.

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Company Appeal (AT) (Ins.) No. 605 of 2021

5. This Appeal is arising out of same common Impugned Order dated 09th

June, 2020 in which I.A. No. 1865/MB.II/2019 in CP (IB) No.

300/MB.II/2018 was dealt with in the matter of Corporate Debtor-Aircel

Cellular Limited. The Learned Counsel for the Appellant submits that by the

common Impugned Order, the Adjudicating Authority dealt with Resolution

Plans of three companies. The present Appeal is with regard to the Aircel

Cellular Limited.

6. The Impugned Order was passed by the Adjudicating Authority

(National Company Law Tribunal, Mumbai Bench - II). By the Impugned

Order, Adjudicating Authority approved Resolution Plan of the Corporate

Debtor-Aricel Cellular Limited.

7. In this matter also, the Learned Counsel for the Appellant points out

the concerned Clause 9.1.4 at Page 91 of this Appeal to submit that as in the

matter of "Dishnet Wireless Ltd" here also although the Records must be

showing the dues of the Appellant but no provision has been made in the

Resolution Plan for the dues of the Appellant and that rather Relief has been

granted against the actions which were initiated by the Appellant and Orders

which have been passed earlier against the Corporate Debtor.

8. Ld. Sr. Standing Counsel-Mr. M. Santhanaraman adds that in both

these Appeals in spite of records showing the dues of the Appellant, the

Resolution Professional conspired and did not show the dues outstanding and

thus both these Appeals need to be entertained. The Learned Counsel for the

Appellant add that the Impugned Order which approved the Resolution Plan

has been challenged by some other entities and those Appeals are already

Company Appeal (AT) (Ins) No. 604-605 of 2021 5

pending. It is stated that when the Resolution Professional had drawn the list

of claims, dues of the Appellants were shown but were not provided for in the

Resolution Plan.

9. Learned Counsel for the Appellant accept that during the pendency of

CIRP with regard to both the Corporate Debtors in these Appeals the

Department of the Appellant has not filed any Resolution Plan. It is stated

that this happened due to Covid-19 situation and by the time, the Appellants

in both these Appeals filed claims under IBC for the Operational Dues, the

Resolution Plan had already been approved.

10. We have gone through the Appeals and although it is stated that

collectively Hundred Crores are involved with regard to both the Appeals, the

fact remains that till the Resolution Professional was approved no claim was

submitted by the Appellants in both these Appeals. The Impugned Order

shows that these were proceedings arising out of Company Petitions of 2018

and thus the excuse of Covid-19 which attracted Lockdown in March, 2020

is not appealing.

11. The Hon'ble Supreme Court in the matter of "Ghanshyam Mishra &

Sons Pvt. Ltd. through the authorized signatory Vs. Edelweiss Asset

Reconstruction Company Limited through the Directors and Ors." in Civil

Appeal No. 8129 of 2019 dated 13th April, 2021 has held in Para 95 as under:

"95. In the result, we answer the questions framed by us as under:

(i) That once a resolution plan is duly approved by the Adjudicating Authority under sub-section (1) of Section 31, the claims as provided in the resolution plan shall stand frozen and will be binding on the Corporate Debtor and its employees, members, creditors, including the Central Government, any

Company Appeal (AT) (Ins) No. 604-605 of 2021 6

State Government or any local authority, guarantors and other stakeholders. On the date of approval of resolution plan by the Adjudicating Authority, all such claims, which are not a part of resolution plan, shall stand extinguished and no person will be entitled to initiate or continue any proceedings in respect to a claim, which is not part of the resolution plan;

(ii) 2019 amendment to Section 31 of the I&B Code is clarificatory and declaratory in nature and therefore will be effective from the date on which I&B Code has come into effect;

(iii) Consequently all the dues including the statutory dues owed to the Central Government, any State Government or any local authority, if not part of the resolution plan, shall stand extinguished and no proceedings in respect of such dues for the period prior to the date on which the Adjudicating Authority grants its approval under Section 31 could be continued."

12. Keeping in view above observations of Hon'ble Supreme Court of India,

we do not find any reason to entertain these Appeals. Even if the Resolution

Plan has been challenged in other Appeals by other entities succeeds, fact

would still remain that the claims of the Appellants were never filed during

CIRPs and thus there was no question of considering the same in the

Resolution Plan. As regards the observations made with regard to Clause

9.1.4, with or without the observations, Judgment of Hon'ble Supreme Court

is clear and binding. The Department of the Appellant will have to follow

Judgment passed by the Hon'ble Supreme Court of India.

13. For such reasons, we decline to admit both these Appeals. The Appeals

are disposed, accordingly.

[Justice A.I.S. Cheema] The Officiating Chairperson

[Mr. V.P. Singh] Member (Technical) Basant B./gc.

Company Appeal (AT) (Ins) No. 604-605 of 2021