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TMI Blog2021 (4) TMI 624X X X X Extracts X X X X X X X X Extracts X X X X ..... vested with the discretion that it vested in the CoC. Since the Respondents have not filed their claims relating to the earlier period till the date of approval of the Resolution Plan before the Resolution Professional during the CIRP period/ before the approval of the Resolution Plan, the claims of the Respondents, if it is filed now or in future, is not to be entertained by the Resolution Applicant / Corporate Debtor - application disposed off. - IA No.20 of 2020 IN IA No.67 of 2019 IN IA No. 58 of 2019 IN C.P. (IB) No.20/GB/2017 - - - Dated:- 10-2-2021 - Hon ble Shri H. V. Subba Rao, Member (J) And Hon ble Shri Prasanta Kumar Mohanty, Member (T) ORDER [Per se: Shri Prasanta Kumar Mohanty, Member (T)] 1. The Applicant [Corporate Debtor] herein, Assam Company India Ltd. has filed this IA No.20 of 2020 under Section 60(5) (c) of Insolvency and Bankruptcy Code, 2016 praying for the following reliefs:- (i) The demand of the Respondent for ₹ 17,96,20,631/- towards the Central Sale Tax and ₹ 3,22,59,067/- towards Value Added Tax should be extinguished. (ii) Any other demand prior to 20th September, 2018 should be extinguished. 2. It is state ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bove. 6. The Counsel representing the Petitioner has prayed for granting relief as mentioned in this IA. 7. The following order was passed by this Adjudicating Authority on 12.11.2020 granting 15 days time to the Respondents to file reply, if any, as prayed for : The matter is taken up for hearing through Video Conferencing. Learned Counsel Mr. Ajay Gaggar is present on behalf of the petitioner and Mr. A. Roy Learned Counsel is present on behalf of the respondent. Heard both the sides. 2. The Learned Counsel appearing for the Govt. side requested for 15 days time for submission of their reply. Time is granted to submit reply within 15 days from the date of this Order. Copy of the reply is to be given to the Petitioner/ Resolution Applicant. The Petitioner may file rejoinder, if any, within 7 days from the date of receipt of the reply from the Respondents. 3. The Petitioner was advised to submit copy of the demand notice within 15 days, but they could not file the same within that time. They are granted another 15 days time to file a copy of the demand notice before the Registry. 4. The Petitioner is also advised to file an affidavit within 15 days of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d herewith and marked as Annexure E. f. The demand notice issued vide Form No.30 directed to pay an amount of ₹ 87,24,464/- and in the Assessment order for the year ended 31st March, 2005 after making adjustment revised the amount of ₹ 52,24,464/- which is payable towards Value Added Tax under West Bengal Sales Tax Rules. The copy of the same is enclosed herewith and marked as Annexure F. g. The demand notice issued vide Form No.4V and the Assessment Order for the year ended 31st March, 2007 demanded the amount of ₹ 1,34,56,558/- which is payable towards Central Service Tax under Central Sales Tax, 1956 and West Bengal Sales Tax, 1994. The copy of the demand notice and Assessment order are enclosed herewith and marked as Annexure G. h. The demand notice issued vide Form NO.27 and the Assessment order for the year ended 31st March, 2007 for the amount of ₹ 1,90,72,936/- payable towards Value Added Tax under West Bengal Sales Tax Rules, 2005. Copy of the demand notice and the assessment order are enclosed herewith and marked as Annexure H. i. The demand notice was issued vide Form No.4V for the year ended 31st March, 2009 demanding an amoun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ewith and marked as Annexure O. 3. It is further submitted that the documents in paragraph No.2 be placed on record is to be treated as part of our annexures of the application being IA No.20/GB/2020. 10. It is observed from the records made available that the demands made by the Respondents are relating to the period from March 2003 to March 2015. 11. It is stated that an application under Section 7 of the Insolvency and Bankruptcy Code, 2016 (CODE) was filed by the Financial Creditor (FC) against the Applicant herein before this Tribunal. This Tribunal by an order dated 26.10.2017 admitted the said application, initiated CIRP against the Applicant and declared moratorium under Section 14 of the Code. By the said order, this Tribunal also appointed an Interim Resolution Professional (IRP) for collating the claims of the Applicant along with a Corrigendum dated 02.11.2017. 12. Thereafter, during the course of CIRP, the RP floated an Expression of Interest inviting potential resolution applicants to participate in the CIRP by submitting their Resolution Plan with regard to the Applicant and pursuant to such Expression of Interest, the Resolution Plan as submitted by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted that barring aside the claims admitted and forming part of the Resolution Plan any other claim and/or demand prior to the effective date shall stand extinguished. 16. The Hon ble Supreme Court of India in the matter of Committee of Creditors of Essar Steel India Ltd. Vs. Satish Kumar Gupta Ors. [Civil Appeal No.8766-67/2019 and other petitions [Judgment dated 15th November, 2019] while setting aside the judgment dated 4th July, 2019 of NCLAT and upholding the constitutional validity of the Insolvency and Bankruptcy Code (Amendment) Act, 2019 has settled several issues and made important rulings including the issues as under: a. Ultimately it is the commercial wisdom of the requisite majority of the CoC that must prevail on the facts of any given case, which include distribution of assets. It is, therefore, not possible that the AA and consequently the NCLAT would be vested with the discretion that it vested in the CoC. b. The CoC does not act in any fiduciary capacity to any group of creditors. On the contrary, it is to take a business decision based upon ground realities by a majority, which then binds all stakeholders, including dissenting creditors. c. The ..... X X X X Extracts X X X X X X X X Extracts X X X X
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