2021 (4) TMI 479 - AT - Income Tax

Company insolvency proceedings - Overriding effect of section 238 of the Insolvency and Bankruptcy Code, 2016 - directions for liquidation of the assessee company by appointing Shri Anil Kohli, Resolution Professional as Liquidator under section 33(2) of the Insolvency and Bankruptcy Code, 2016 - HELD THAT - Provisions contained under section 238 of the Code are having an overriding effect over all other Central and State statutes including Income-tax Act as held by Hon'ble Supreme Court in case of PCIT vs. Monnet Ispat and Energy Ltd. 2018 (8) TMI 1775 - SC ORDER In view of the matter, section 238 of the Code will have overriding effect over all other Central and State statutes including the Income-tax Act and all the claims including claim of the Income-tax Department under the Income-tax Act, 1961 shall be entertained by the Official Liquidator u/s. 53(1) of the Code. Keeping in view all these facts, ld. AR for the assessee stated at Bar that he does not press this appeal and same may be dismissed as withdrawn. Consequently, present appeal is dismissed as withdrawn having been become infructuous.

Summary

Issues involved:
Liquidation of the assessee company under the Insolvency and Bankruptcy Code, 2016 and the impact on the pending appeal. The overriding effect of section 238 of the Insolvency and Bankruptcy Code on other statutes, including the Income-tax Act, 1961.

Analysis:
The Appellant, M/s. Moserbaer India Ltd., brought to the notice of the Bench that the National Company Law Tribunal (NCLT) had ordered the liquidation of the assessee company and appointed a Liquidator under section 33(2) of the Insolvency and Bankruptcy Code, 2016. This information was supported by an order passed by the Hon'ble Supreme Court in the assessee's own case.

The Hon'ble Supreme Court, in a previous order, acknowledged that the respondent company was financially unviable and undergoing liquidation proceedings. The Court noted that even if the Revenue succeeded in the appeal, the Official Liquidator would not be able to pay the tax amount involved. Given the company's liquidation status and inability to pay outstanding dues, the Court decided to dispose of the appeals, leaving the question of law open for future cases.

The Tribunal considered the overriding effect of section 238 of the Insolvency and Bankruptcy Code, as highlighted in a previous Supreme Court judgment. It was established that the Code would prevail over any inconsistent provisions in other enactments, including the Income-tax Act, 1961. Consequently, all claims, including those of the Income-tax Department, would be entertained by the Official Liquidator under section 53(1) of the Code.

In light of these legal principles and the specific circumstances of the case, the authorized representative for the assessee informed the Bench that they did not wish to pursue the appeal. As a result, the appeal was dismissed as withdrawn, as it had become infructuous due to the company's liquidation status. The order was pronounced in open court after a virtual hearing on March 17, 2021.