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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 ..... the present Appeal being dissatisfied with the impugned order dated 28.06.2019 passed by the Adjudicating Authority (National Company Law Tribunal, Bengaluru) in I.A. No.267/2019 and I.A. No.268/2019 in CP (IB) No.148/BB/2017. 2. In CP (IB) No.148/BB/2017 (under Section 9 of I & B Code r/w Rule 6 of the I & B (AAA) Rules, 2016), filed by the 1st Respondent/Operational 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 para ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ice, the fees of the liquidator shall not be recovered from pending Income Tax refund or Fixed Deposit Receipt due for the Company. Since Income Tax Department has already determined the quantum of refund...the liquidator has to pursue the same and get it converted to cash. Here, virtually, no effort is required.", which is an incorrect and perverse one. 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 whil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the IT refund sum, as and when received, shall be credited to the account of the Corporate Debtor/Company under liquidation and the said sum was already treated as 'Other Current Asset' vested within the Corporate Debtor Company or a property belonging to or vested in the Corporate Debtor Company on the insolvency commencement date. 9. The 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... other things seeking to direct the I.T. Department to expedite the process of their refund claim in respect of the Corporate Debtor (M/s Le Eco System Technology India Private Limited).In fact, the said I.A. No.141/2019 was disposed by the Adjudicating Authority on 22.03.2019, whereby and wherein the Commissioner of Income Tax was directed 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 i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... realisation under Sub-Regulation (3) only after such realised sum is distributed. 16. A 'Liquidator' will be entitled to remuneration for the services rendered by a member of his staff as per decision in Jacob and Ruddock v. UIC Insurance Co. Ltd. (2007) 2 BCLC 46 (Ch. D.). In this connection, it is pertinent for this Tribunal to make 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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