2022 (4) TMI 782 - Tri - Insolvency and Bankruptcy

Provisional Attachment - general principle for construction - Prohibition of Benami Property Transaction Act, 1988 - Section 32A of I B Code - HELD THAT - The Corporate Debtor was ordered for Liquidation vide Order dated 14.02.2019 by this Adjudicating Authority. It is seen from the Orders of the Respondents that the Provisional attachments were made on 01.11.2019. At this juncture it is pertinent to note that the period of moratorium starts with the initiation of the CIRP and ends in two circumstances either on the commencement of Liquidation or upon the approval of a resolution plan - In the present case, the Liquidation period has commenced before the date of in which the provisional attachment was made which indicates that the Respondents herein had not acted in violation of the moratorium. Further, the question of violation of Section 32A does not arise at all as there is no sale of property of the Corporate Debtor consequent to any Resolution Plan. As there is nothing to stop the Applicant/Liquidator herein to proceed under the relevant provision to revive the provisional attachment. And that, this Adjudicating Authority having not found any conflict between the two statutes as there is no bar in selling the property of the Corporate Debtor solely on the ground that the Corporate Debtor is under Liquidation. And that the Liquidator is also not barred by the code to add the said property into the liquidation estate. The applicant/Liquidator herein is open to approach the appropriate forum to raise the attachment or any other relief as per the provisions of the said act. Application dismissed.

Issues Involved:
1. Interim Stay over the Provisional Attachment Order.
2. Setting aside the Provisional Attachment Order.
3. Interim Stay over the Assessment Order and Demand Notice.
4. Setting aside the Assessment Order and Demand Notice.
5. Jurisdiction of NCLT under Section 60(5) of the IBC, 2016.
6. Applicability of Section 32A of the IBC, 2016.
7. Overriding effect of IBC over the Benami Act.
8. Validity of Provisional Attachment under the Prohibition of Benami Property Transactions Act, 1988.

Detailed Analysis:

Interim Stay over the Provisional Attachment Order:
The applications sought an interim stay over the operation of the Provisional Attachment Orders dated 01.11.2019. The Tribunal noted that the Provisional Attachments were made under the Prohibition of Benami Property Transactions Act, 1988, which has its own stipulated process for attachment under Section 7. The Tribunal found no violation of the moratorium period as the Liquidation had commenced before the provisional attachment date.

Setting Aside the Provisional Attachment Order:
The applications also sought to set aside the Provisional Attachment Orders. The Tribunal observed that the Prohibition of Benami Property Transactions Act, 1988, has a due process for attachment, and the Liquidator is not barred by the Insolvency and Bankruptcy Code (IBC) to add the said property into the liquidation estate. The Tribunal advised the Liquidator to approach the appropriate forum for relief under the provisions of the Benami Act.

Interim Stay over the Assessment Order and Demand Notice:
The applications requested an interim stay over the Assessment Order dated 31.12.2019 and the consequential Notice of Demand. The Tribunal noted that the assessment conducted by the Income Tax authorities cannot be construed as a suit or legal proceeding for availing protections under the IBC, 2016. The Tribunal emphasized that the appropriate authority to challenge the Assessment Order is the Commissioner (Appeals) of Income Tax.

Setting Aside the Assessment Order and Demand Notice:
The applications sought to set aside the Assessment Order and Demand Notice issued under Sections 143(3) & 153A and Section 156 of the Income Tax Act, 1961. The Tribunal reiterated that the appropriate forum for such challenges is the Commissioner (Appeals) of Income Tax and not the NCLT.

Jurisdiction of NCLT under Section 60(5) of the IBC, 2016:
The Tribunal discussed the jurisdiction of NCLT under Section 60(5) of the IBC, 2016, and referred to the Supreme Court judgment in Embassy Property Developments Pvt. Ltd. v. State of Karnataka & Ors., which limits the jurisdiction of NCLT to avoid absurd results. The Tribunal concluded that the application under Section 60(5) is not maintainable for setting aside the Provisional Attachment and Assessment Orders.

Applicability of Section 32A of the IBC, 2016:
The Tribunal examined the applicability of Section 32A of the IBC, 2016, which provides immunity to bona fide and successful Resolution Applicants or purchasers of assets sold during liquidation. The Tribunal referred to the case of Raj Kumar Ralhan, Resolution Professional for Leo Meridian Infrastructure Projects & Hotels Limited and Ors. v. Deputy Director, Enforcement Directorate and Ors., and concluded that Section 32A does not apply as there was no resolution plan approved by the CoC at the time of the Provisional Attachment Order.

Overriding Effect of IBC over the Benami Act:
The Tribunal addressed the argument that the IBC should prevail over the Benami Act. The Tribunal referred to the Supreme Court case in Solidaire India Ltd. v. Fairgrowth Financial Services P. Ltd. and concluded that the contention does not hold in this case as there is no conflict between the two statutes.

Validity of Provisional Attachment under the Prohibition of Benami Property Transactions Act, 1988:
The Tribunal upheld the validity of the Provisional Attachment Orders under the Prohibition of Benami Property Transactions Act, 1988, and noted that the Liquidator could proceed under the relevant provisions to challenge the attachment.

Conclusion:
The Tribunal dismissed the applications MA/1372/2019, MA/1373/2019, and MA/69/2020, stating that the Liquidator should approach the appropriate forum for relief under the Prohibition of Benami Property Transactions Act, 1988, and the Income Tax Act, 1961. The Tribunal found no inconsistency between the IBC and the Benami Act, and emphasized that the jurisdiction of NCLT under Section 60(5) cannot be stretched to include all questions of law or facts.

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