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TMI Blog2019 (6) TMI 849X X X X Extracts X X X X X X X X Extracts X X X X ..... as the Shareholders or Promoters are concerned because of their failure the Corporate Insolvency Resolution Process got initiated against the Corporate Debtor and Successful Resolution Applicant pays the dues to all the creditors on behalf of the Corporate Debtor / Promoters / Shareholders . In lieu of such payment, it is always open to the Successful Resolution Applicant to claim transfer of shares of Shareholders / Promoters in its favour. Section 29A is the ineligibility clause which deals with question as to who are ineligible to file resolution plan . As per said provision any persons who act jointly or in concert with such person if fall within any of the clause as mentioned therein (Clause (a) and (j) ) are ineligible to file resolution plan . It is not the case that the Resolution Professional or the Committee of Creditors or that the Adjudicating Authority found the Resolution Applicant to be ineligible under Section 29A. In absence of any such evidence, it was not open to the Adjudicating Authority to observe that the Appellant has a nexus with the Corporate Debtor . We modify the impugned order dated 19th February, 2019 and substitute the ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ue consideration. 2. The learned counsel appearing on behalf of the Appellant has grievance against the aforesaid part of the modified order on the ground that the claim with regard to the additional Government Dues of ₹ 14 Crores were added by the Adjudicating Authority, the claim which was not before the Resolution Professional nor shown in the Information-Memorandum . It is submitted that whatever claim was made towards the statutory dues, i.e. dues arising out of existing law, were taken into consideration and the Resolution Applicant made suitable provision for such dues. Therefore, according to the Appellant, additional burden of ₹ 14 Crores has been levied on the Resolution Applicant without any basis. Learned counsel for the Appellant further submits that the Adjudicating Authority wrongly held that the resolution applicant has nexus with the Corporate Debtor . 3. On earlier date, on hearing the learned counsel for the Appellant and the learned counsel appearing on behalf of the Resolution Professional , we expressed our view that the Resolution Applicant can prepare a chart of re-distribution amount to all the stakeholders ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s with operation of the Company. For the said reason also, we hold that all statutory dues including Income Tax , Value Added Tax etc. come within the meaning of Operational Debt . 30. For the said very reason, we also hold that Income Tax Department of the Central Government and the Sales Tax Department(s) of the State Government and local authority , who are entitled for dues arising out of the existing law are Operational Creditor within the meaning of Section 5(20) of the I B Code . 5. In view of the aforesaid position of law, we are of the view that the Resolution Applicant is required to provide the same treatment to all the Operational Creditors , who are equally situated. 6. The Operational Creditor is defined in Section 5(20) which read with Operational Debt as defined in Section 5(21), read as follows: (20) operational creditor means a person to whom an operational debt is owed and includes any person to whom such debt has been legally assigned or transferred; (21) operational debt means a claim in respect of the provision of goods or services including employment or a debt in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Admitted claim 221.76 221.76 100 Workmen dues as mentioned by RP from Books of accounts in IM 12.43 12.43 100 234.19 234.19 3. Employee dues Admitted claim 56.42 56.42 100 Employee dues as mentioned by RP from Books of accounts in IM 9.25 9.25 100 65.67 65.67 4. Secured Financial Creditor - SBI 465.26 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2. Projected Interest and damages on PF Liability 0 0 100 3. Maharashtra Labour Welfare Fund 0.24 0.24 100 4. Employee State Insurance Corporation 9.33 9.33 100 5. Profession Tax 21.53 21.53 100 Subtotal 75.87 75.87 B Other Statutory Dues 1. Tax deducted at Source 10.94 10.94 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2. Workmen dues 234.19 234.19 100.00 3. Employee dues 65.67 65.67 100.00 4. Secured Financial Creditor -SBI 465.26 465.26 100.00 5. Unsecured Financial Creditor Promoter Group 505.85 505.85 100.00 6. Operational Creditors Trade Payables 233.56 165.39 70.81 7. Operational Creditors and Other Creditors- Promoter Group 78 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1.53 21.53 21.53 100 Subtotal 143.54 75.87 143.54 B Other Government Dues 1 Customs 384.84 0 116.29 30.22 2 Tax deducted at Source 15.85 10.94 4.79 30.22 3 Value added Tax Central State Tax 736.29 12.19 222.5 30.22 4 Excise 353.4 78.84 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ees who have rendered services to keep the company a going concern even during the Corporate Insolvency Resolution Process , the supplier of the goods and those who rendered services have also invested money for keeping the company operational. On the other hand, the Central Government or State Government, only derive the advantage of the existing law, claiming without supplying any goods or rendering any services. So far as the inventory of Fouress Engineering (India) Pvt . Ltd. is concerned, it is equated with all the similar placed Operational Creditors therefore it cannot allege discrimination. So far as the Shareholders or Promoters are concerned because of their failure the Corporate Insolvency Resolution Process got initiated against the Corporate Debtor and Successful Resolution Applicant pays the dues to all the creditors on behalf of the Corporate Debtor / Promoters / Shareholders . In lieu of such payment, it is always open to the Successful Resolution Applicant to claim transfer of shares of Shareholders / Promoters in its favour. 11. Section 29A is the ineligibility clause which deals with question as to who are ineligible to file resol ..... X X X X Extracts X X X X X X X X Extracts X X X X
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