9911796707
TMI Blog2019 (6) TMI 119X X X X Extracts X X X X X X X X Extracts X X X X ..... has challenged the order passed by the Commercial Tax Tribunal, Bench-II, Ghaziabad dated 14.05.2019 by which the Tribunal has granted conditional stay to the extent of 80% of the disputed amount of tax during pendency of first appeal before the first appellate authority. The claim of the applicant is that, in fact, the applicant is not at all liable to pay any amount in view of overriding provisions of Insolvency & Bankruptcy Code, 2016. The applicant M/s UltraTech Nathdwara Cement Limited is a Company having its registered office at Block D, 4th Floor, 22 Camac Street, Kolkata. M/s Binani Cement Ltd. was acquired by UltraTech Cement Limited vide Revised Resolution Plan dated 28.05.2018, which was approved by National Company Law Appella ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the applicant submits that on account of closure of business activities w.e.f. 01.04.2015, BCL also terminated its agreement with its C & F agent i.e. M/s Shree Jee Agencies, 53 Ramte Ram Road, Ghaziabad. Thus, with effect from 01.04.2015, BCL was neither conducting any business activity within the State of U.P. nor was having any relation with its C & F agent. Admittedly, on 23.09.2015, S.I.B authorities surveyed the principal place of business of BCL and during course of survey one person namely Raj Kumar Sharma informed the surveying authorities that no business activities are conducted by M/s BCL on account of closure of the business. It is admitted fact that certain loose papers were resumed by the survey authorities which includes ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as assailed before the Hon'ble Supreme Court and vide the order dated 02.07.2018, the Supreme Court remitted the matter to the National Company Law Appellate Authority, New Delhi (NCLAT). By the order of the Supreme Court, the insolvency petition has been transferred from NCLT, Kolkata to NCLAT, New Delhi. Pursuant to the order of the Supreme Court, NCLAT passed an order dated 14.11.2018 by which it has approved the revised resolution plan submitted by the present applicant and has held that the same will be binding on the corporate debtor (BCL), its employee, members, creditors, guarantors and other stake holders involved in the Resolution Plan. The order of NCLAT was challenged by the other party namely M/s Rajputana Properties befo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts and prayed that no assessment can be made and no demand therefore can be created in terms of the resolution plan, which has overriding effect in view of the provision of the Code even then the assessing authority has passed the assessment order dated 23.02.2019 by which he has created huge illegal demand of tax of Rs. 2,32,60,000/-. The order of the assessment dated 23.02.2019 has been challenged by the applicant under Section 55 of VAT Act before the first appellate authority. An application under Sub-Section (6) of Section 55 was moved before the first appellate authority for stay of the realisation of the impugned demand. The first appellate authority while entertaining and deciding the interim application filed has passed the follo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a party. It has to maintain a balance between the rights of an individual and the State so far as the recovery of sovereign dues is concerned. While considering the application for stay/waiver of a pre-deposit, as required under the law, the court must apply its mind as to whether the appellant has a strong prima facie case on merit. In case it is covered by the judgment of a Court/Tribunal binding upon the Appellate Authority, it should apply its mind as to whether in view of the said judgment, the appellant is likely to succeed on merit. If an appellant having strong prima facie case, is asked to deposit the amount of assessment so made or penalty so levied, it would cause undue hardship to him, though there may be no financial restrain o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to prove that it is marketable, the burden is on the Revenue and not on the manufacturer." Learned counsel for the applicant has also placed reliance of a recent decision of the Apex Court in the case of Principal Commissioner of Income Tax vs. Monat Ispat and Energy Ltd, SLP (C) No.6483 of 2018 dated 10th August, 2018 reported in 2018 SCC OnLine SC 984. The counsel for the applicant has relied on paragraph 3, 4 and 5 of the said judgment, which reads as follows; "3. Given Section 238 of the Insolvency and Bankruptcy code, 2016, it is obvious that the Code will override anythin inconsistent contained in any other enactment, including the Income-Tax Act. 4. We may also refer in this Connection to Dena bank v. Bhikhaphai Prabhudas Parek ..... X X X X Extracts X X X X X X X X Extracts X X X X
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