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2021 (5) TMI 551 - AT - Insolvency and BankruptcyApproval of Resolution Plan - grievance of the Appellant is that the Adjudicating Authority had committed an error by placing an additional paragraph 22 of the Impugned Order , as a result thereof, the financial viability of the plan has been seriously affected by opening of the plan towards undecided claims - HELD THAT - It comes to be known that the final Resolution Plan was put up for due consideration by the Committee of Creditors in the meeting that took place through Video Conferencing on 15.09.2020. In reality, the said Resolution Plan was approved by 80.64% of the voting share of the Committee of Creditors . Besides this, the Resolution Applicant had confirmed that Resolution Plan duly complied with the requirements of the I B Code and Regulations made thereunder. Based on the approval of Resolution Plan by the Committee of Creditors under Section 30(4) of the Code, as the successful Resolution Plan , the Applicant projected an application under Section 30(6) of the Code, before the Adjudicating Authority praying for its approval as per ingredients of Section 31(1) of the Code and Regulation 39(4) of the CIRP Regulations. This Adjudicating Authority is of the considered view that if any waiver is sought in the Resolution Plan, the same shall be subject to approval by the concerned Authorities. The same view has also been held by Hon ble Principal Bench, NCLT in the case of 2018 (9) TMI 55 - NATIONAL COMPANY LAW TRIBUNAL, NEW DELHI and therefore, the same is to be setaside, this Tribunal comes to a resultant conclusion that the said Observations are not in the form of imposition of an additional condition thereby opening up the plan in regard to the undecided claims , because of the reason that the Adjudicating Authority is within its limits to express its views/opinion(s). Appeal dismissed.
Issues Involved:
1. Delay in filing the appeal due to the COVID-19 pandemic. 2. Approval and implementation of the Resolution Plan. 3. Carry forward and set off of tax losses under Section 79(2)(c) of the Income Tax Act, 1961. 4. Waiver of statutory obligations and liabilities under the approved Resolution Plan. 5. Jurisdiction of the Adjudicating Authority in imposing additional conditions. Detailed Analysis: 1. Delay in Filing the Appeal: The Appellant contended that there was a delay of 15 days in filing the appeal due to the COVID-19 pandemic. The Tribunal, being subjectively satisfied with the reasons provided, condoned the delay of 15 days to secure the ends of justice. 2. Approval and Implementation of the Resolution Plan: The Appellant, a Successful Resolution Applicant, was aggrieved by the Order dated 24.12.2020 passed by the Adjudicating Authority (NCLT, Hyderabad) which approved the Resolution Plan but added certain conditions. The Resolution Plan was approved by the Committee of Creditors (CoC) with a majority of 80.64%. The Appellant argued that the additional conditions imposed by the Adjudicating Authority affected the financial viability of the plan and opened it to undecided claims. 3. Carry Forward and Set Off of Tax Losses: The Adjudicating Authority directed that in terms of Section 79(2)(c) of the Income Tax Act, 1961, the assessed tax losses of the Corporate Debtor shall be allowed to be carried forward. Notices were served to the Principal Commissioner of Income Tax, but there was no response. The Appellant sought confirmation that the Corporate Debtor would be allowed to carry forward and set off losses incurred prior to the NCLT approval date against future income. 4. Waiver of Statutory Obligations and Liabilities: The Appellant contended that the Resolution Plan should include waivers for statutory obligations and liabilities to ensure the plan's economic viability. The Adjudicating Authority, however, observed that the approved Resolution Plan shall not construe any waiver to statutory obligations/liabilities and that any waiver sought in the Resolution Plan would be subject to approval by the concerned authorities. The Appellant argued that this condition would lead to uncertainty and affect the implementation of the Resolution Plan. 5. Jurisdiction of the Adjudicating Authority: The Appellant argued that the Adjudicating Authority had overstepped its jurisdiction by imposing additional conditions in Paragraph 22 of the Impugned Order. The Tribunal, however, concluded that the observations made by the Adjudicating Authority were not an imposition of additional conditions but were within its jurisdiction to express views and opinions. Conclusion: The Tribunal dismissed the appeal, stating that the observations made by the Adjudicating Authority were within its jurisdiction and did not constitute an imposition of additional conditions. The appeal was found to be without merit, and the conditions imposed by the Adjudicating Authority were upheld. The stay application and the application seeking exemption from filing a certified copy of the Impugned Order were also closed.
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