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TMI Blog2020 (12) TMI 755X X X X Extracts X X X X X X X X Extracts X X X X ..... ty-Seven lakhs Fifty Thousand Only). b. GST @ 18% Payable on the above Rs. 12,15,000.00 (Rupees Twelve lakh Fifteen thousand only). c. Power charges, water charges and sweeping, cleaning and maintenance charges during CIRP Period of Rs. 15,15,000.00 (Rupees Fifteen Lakhs Fifteen Thousand only). d. Proportion of License fee, at par with other operational creditors, until the date of initiation of CIRP, amounting to Rs. 1,10,400.00 (Rupees One lakh Ten thousand Four hundred only). e. Proportion of outstanding loans to the Corporate Debtor, at par with the financial creditors (40.6% of the Total amount due) amounting to Rs. 2,29,09,939.00 (Rupees Two crore Twenty-Nine lakhs Nine thousand nine hundred and thirty-Nine only Total amount payable Rs. 3,25,00,339/- (Rupees three crore twenty-five lakhs three hundred and thirty-Nine Only). Amounts payable to 2nd Applicant: a. License fee in full, during CIRP process, payable to Applicant No. 2, amounting to Rs. 85,66,666.00 (Rupees Eighty-Five lakhs Sixty-Six Thousand Six Hundred and Sixty-Six Only). b. GST @ 18% Payable on the above Rs. 15,42,000.00 (Rupees Fifteen Lakh Forty-two thousand only). c. Office cleaning and mainte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nts are entitled to any licence fee, which would be limited to the Income Tax Return till the date of the order. Grove has not furnished any Income Tax Return, which is filed prior to the order of the Hon'ble NCLAT. Hence, Grove is also not entitled to any license fee in view of the order of the Hon'ble NCLAT. It is further stated that Grove has not refunded the security deposit of Rs. 50 Lakhs and that MIPL also has not refunded the security deposit of Rs. 40 Lakhs paid by the Corporate Debtor when the license agreement was expired. It is further stated that even if Grove is entitled to any licence fee to the extent of Income Tax Return filed prior to the order of the Hon'ble NCLAT, which will be subject to the refund of the security deposit with 18% interest by the Applicants, which is still outstanding from them. 4. The Respondent No. 2 filed a counter stating that as per the directions of the Hon'ble NCLAT, the amounts payable to the building owner during the CIRP period or till the handing over of possession needs to be included in the CIRP Costs. The counsel filed a Tabular Chart for sake of convenience, which is as under: Sl. No Elements of Order Factory ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ows: i. Payment of licence fees to the Applicants for the CIRP period as CIRP costs; ii. Individual claims of Applicant No.1 and Applicant No. 2 as financial creditors. 7. The Hon'ble Appellate Tribunal, vide order dated 29.07.2020, affirmed the Resolution Plan approved by the NCLT Chennai Bench. 8. The only question that remains to be determined is whether the Applicants are entitled to payment of license fee, for the period between 15.01.2018 and 23.01.2019 and the quantum of the same on the basis of the IT returns filed before passing of the order. 9. The learned counsel further submitted that the licence fees is payable as CIRP costs, the quantum of which is determined by the IT returns filed by the Applicants, the same shall only be considered as CIRP costs. The 3rd Respondent has already implemented the Resolution Plan and has provided the funds towards CIRP costs as also payment to all the stakeholders and the same has been duly distributed as well. It is also submitted that if any additional CIRP costs are determined to be payable, it is for Respondent No. 1 to redistribute from the Resolution Plan value already provided by Respondent No.3. All the other frivolou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dents cannot be accepted, as the Hon'ble NCLAT in the Interim Order dated 29.03.2019 clarified that "Resolution Plan can be implemented at the risk of the Resolution Applicant which shall be subject to the decision of the Appellate Tribunal". The amount computed to be paid are based on specific observations and directions of the Hon'ble NCLAT. They have referred to the decision of the Hon'ble NCLAT in Para 4 and 4 (a), which reads: The Appellant in Company Appeal (AT) (Ins) No.307 of 2019 is the agreed to pay a sum of Rupees towards licence fee payable either a lump sum or such other Corporate Debtor's factory, he has entered into a Licence absolute owner of the Agreement with Corporate Debtor on 01.10.2011 and the Corporate Debtor has such other instalments being Rs. 16,50,00 towards building and Rs. 38,58,000/- towards plant and machinery. He is aggrieved that the Licence fee for the CIRP period forms part of IRP costs and should have been paid in full while this has not been considered and similarly the financial debt has not been paid. The Appellant is insisting that the Resolution Applicant has handed over the building and other apartments only on 17.06.2019 and his dues ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... TRs within the last dates. The IT return acknowledgement filed on 21st October, in case of the 2nd Applicant is attached to the Rejoinder filed by the applicants. Findings 13. This Tribunal heard the arguments advanced by the learned counsel/PCS on either side and had gone through the documents placed on record. It is clear from the order dated 29.07.2020 of Hon'ble NCLAT that there is a direction for payment of licence fee with a condition. 7. We have gone through the various submissions made by the Appellants and the Respondents. We also been understand that the Resolution Plan have been implemented by 18.03.2019 and a lot of time has lapsed in getting final approval and landing into appeals before this Appellate Tribunal. The grey area in this case is that the setting up off losses under Income Tax Act, 1961 is subject to scrutiny by the Income Tax Department and IBC 2016 lays down that the Resolution Plan should be in compliance with the law laid down. Hence, there is a need for getting an affidavit from the Resolution Applicant that he will be successfully completing the Resolution Plan whether he gets this set off under Income Tax Act or not. Secondly the issue is payment ..... X X X X Extracts X X X X X X X X Extracts X X X X
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