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TMI Blog2020 (8) TMI 541X X X X Extracts X X X X X X X X Extracts X X X X ..... dation assets . A Liquidator is entitled to such Fee and in such manner as determined by the Committee of Creditors before a Liquidation order is passed under Section 33 (1)(a) or Section 33(2) of the Code. In respect of other cases, other than those covered under Sub-Regulation (2), the Liquidator shall be entitled to a percentage of the amount realised net of other Liquidation Costs and of the sum distributed as provided in this Regulation. Further, Sub-Regulation (4) specifies that the Liquidator shall be entitled to receive half of the fee payable on realisation under Sub-Regulation (3) only after such realised sum is distributed. A Liquidator will be entitled to remuneration for the services rendered by a member of his sta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tional Creditor against M/s Le Ecosystem Technology India Private Limited (Corporate Debtor), the Adjudicating Authority (NCLT, Bengaluru Bench) on 09.11.2018, admitted the Application and appointed Mr. S. Shivaswamy as an Interim Resolution Professional, the Appellant herein, to conduct the CIRP in respect of the Corporate Debtor. 3. In the impugned Order dated 28.06.2019, at paragraph 12(vi), the Adjudicating Authority had proceeded to observe the following: The fees of the Liquidator shall be proportionate to the liquidation estate assets as per Section 34(8) of the Code. As stated in the Order on I.A. No.141/2019, the Company is due to receive Income Tax Refund of ₹ 2.20 crores for AY 2017-18. However in the interest of ju ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5. The Learned Counsel for the Appellant points out that the ingredients of Section 36(3)(h) of the Insolvency and Bankruptcy Code, 2016 specifically provides for inclusion of all such assets being any other assets belonging to or vested in the Corporate Debtor at the insolvency commencement date. Therefore, it is the stand of the Appellant that the Tribunal fell into a palpable error while making the observation that the quantum of the Income-Tax refund amount was already determined, the fees of the Liquidator shall not be recovered therefrom and this observation is in gross violation of Sections 34(8) and 36(3)(h) of the Code read with Regulation 4(3) of Chapter II of the Insolvency and Bankruptcy Board of India (Liquidation Process) Re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Learned Counsel for the Appellant takes a stand that the Income Tax refund amount from the Liquidation Estate was excluded by the Adjudicating Authority and in this regard, the Adjudicating Authority exceeded its powers restricted by Section 34(8) of the I B Code which provides that an Insolvency Professional proposed to be appointed as a Liquidator shall charge such fee for the conduct of the Liquidation proceedings and in such proportion to the value of the Liquidation Estate Assets as specified by the Board. 10. The Learned Counsel for the Appellant contends that the Adjudicating Authority being a creature of statute and being bound by the relevant provisions of the statute had acted beyond its power while passing the impugned ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed to expedite the process of refund of M/s Le Eco System Technology India Private Limited (Corporate Debtor) in accordance with law within a period of six weeks from the date of receipt of the copy of the order. 14. The primordial grievance of the Appellant (Resolution Professional and Liquidator of M/s Le Eco System Technology India Pvt. Ltd.) is that the Adjudicating Authority, while passing the impugned order in I.A. Nos.267 and 268 of 2019 in C.P. (IB) No.148/BB/2017, at paragraph 12(vi), after observing that the fees of the Liquidator shall be proportionate to the Liquidation Estate as per Section 34(8) of the Code, had proceeded to observe that the Income Tax Department had already determined the quantum of refund communication ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a mention that a court/tribunal has a discretion to decide the fee or remuneration of a voluntary Liquidator but the fact of the matter is that where the expense are neither justified nor ancillary/incidental to the winding up, the same may not be reimbursed. 17. Be that as it may, on going through the impugned order passed by the Adjudicating Authority (National Company Law Tribunal, Bengaluru Bench), this Tribunal is of the earnest opinion that for the services to be rendered/rendered by the Liquidator in regard to the I.T. Refund Amount and the same being converted into cash, even though much effort is not required, certainly, the Liquidator is entitled to claim remuneration for this outturn of work, of course, in conformity with ..... X X X X Extracts X X X X X X X X Extracts X X X X
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