The State Government Of Nct Of Delhi ... vs Ashwani Kumar Gupta

19.01.2023: This appeal has been filed against the order dated

23.09.2020 passed by the Adjudicating Authority in IA No. 2897 of 2020.

2. The Appellant before us is a State of Government, NCT of Delhi,

Commissioner, Department of Trade and Taxes. It is submitted that in

CP(IB)No. 343/ND/2017, the liquidation proceedings were initiated in which

an IA No. 2897/2020 was filed by the Liquidator, Mr. Ashwini Kumar Gupta

seeking directions for refund.

3. The Adjudicating Authority on the said application, passed an order on

31.08.2020 issuing notice on the application. The Adjudicating Authority has

also observed that private notice may also be served. In 31.08.2020, next

date was 23.09.2020. On 23.09.2020, Learned Counsel for the liquidator,

filed an affidavit of service, service was held sufficient and the Respondent

Company Appeal (AT) (Insolvency) No. 379 & 380 of 2022 1 were proceeded ex-parte and the order was passed. Challenging the order,

dated 23.09.2020, this appeal has been filed.

5. Learned Counsel for the Appellant submits that the Appellant did not

receive any notice. It is further submitted that liquidator was in

communication with the relevant assessing authorities between 31.08.2020

and 23.09.2020 but there was no information sent by the liquidator. The

email which was sent by the Counsel after 31.08.2020 was not recognized

Counsel, hence, the Appellant could not appear on the aforesaid date. It is

further submitted that with regard to 31.08.2020 hearing, the Appellant

could not participate and they have not been provided the link and the court

was going virtual at that relevant time.

6. It is submitted that in view of the aforesaid, they could not place the

relevant facts nor could file the reply to the IA No. 2897/2020 and the

Adjudicating Authority disposed of the IA No. 2897/2020 ex-parte.

7. Learned Counsel for the Respondent refuting the submission of the

Appellant submits that notices were served by e.mail and also by speed post

and the affidavit of service was filed and the court being satisfied that the

Appellant was served, has passed order. It is further submitted that this

appeal is barred by time and the order has been passed on 23.09.2020 and

the appeal has been filed on 25.03.2020.

8. We have considered the submissions of the Learned Counsel for the

parties and perused the records.

Company Appeal (AT) (Insolvency) No. 379 & 380 of 2022 2

9. From the fact, it does appear that 31.08.2020 was the first date when

notices were issued to the Appellant and in the same very order, 23.09.2020

was fixed as the next date and on 23.09.2020, order has been passed.

10. There is no dispute that Appellant could not present themselves and

the order has been passed ex-parte. The Appellant submits that liquidator

himself was in communication with the Assessing Officer, but Assessing

Officer was never informed of the proceedings. The affidavit of service was filed

before the Adjudicating Authority and the Adjudicating Authority held the

service of notice sufficient.

11. Be that as it may, the facts remain that the order proceeded ex-parte

without giving an opportunity to the Appellant to file a reply to the application

and 23.09.2019 was the first date after issuance of notice.

12. In the ends of justice, we give one opportunity to the Appellant to file

their reply to the IA No. 2897/2020. The Appellant shall file the reply within

two weeks to IA No. 2897/2020 and thereafter the Adjudicating Authority

shall proceed to hear IA No. 2897/2020 and pass a fresh order.

13. The submission of the Learned Counsel for Respondent that appeal is

barred by time, since the order was passed on 23.09.2020 and the appeal was

filed on 25.3.2020 does not merit acceptance. In view of order of Hon'ble

Supreme Court in suo moto writ petition 03 of 2020, the order which

was passed after 25.03.2020 till 28.02.2022, the time was allowed to file the

appeal till 29.05.2022, the appeal has been filed within the said period, it

can't be held that it is barred by time. In result, order, passed by the

Adjudicating Authority on 23.09.2020 in IA No. 2897 of 2020 is set aside. Company Appeal (AT) (Insolvency) No. 379 & 380 of 2022 3

14. The IA No. 2897/2020 is revived before the Adjudicating Authority for

fresh consideration accordingly, in view of the fact that the Application is

pending, since 2020, the Adjudicating Authority shall endeavor to dispose of

the application at an early date.

[Justice Ashok Bhushan] Chairperson

[Mr. Barun Mitra] Member (Technical)

ss/nn

Company Appeal (AT) (Insolvency) No. 379 & 380 of 2022 4