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TMI Blog2021 (12) TMI 1182X X X X Extracts X X X X X X X X Extracts X X X X ..... As stated earlier, there could be a contingency where statuary claim is raised after the approval of the Resolution Plan, owing to receipt of information of the Corporate Debtor having suppressed certain facts while filing returns of the previous years, which then could not be a part of the Resolution Plan. To counter such a situation, the statutory authorities will have to explore the possibility of raising such claims before the Resolution Professional or Adjudicating Authority, as the case may be, by requesting to make certain provisions for payment of statutory claims in the Resolution Plan. Whether to accept such claim is a matter that should be left to the COC, the Resolution Professional or the Adjudicating Authority. However, in absence of any such claim having been made and dealt with by the Resolution Professional and in absence of any provision to settle such claim in the Resolution Plan, such claim could not be raised subsequently. In that sense, the Petitioner is correct in contending that the impugned notice could not have been issued by the Assessing Officer. We did not come across any such provision under the Income Tax Act, 1961 nor did the parties before us ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cts of Writ petition No. 2948 of 2021 are being considered. The Petitioner - Murli Industries Ltd., is a company registered under the Companies Act, 1956, and is engaged in the business of manufacture and sale of cement. According to the Petitioner, the Petitioner company had filed its return of income for the assessment year 2014 15 on 29.09.2014 declaring a loss of ₹ 2,80,30,74,365/-. The Petitioner s case was selected for scrutiny by the Income Tax Authorities and an order to that effect was passed on 27.12.2016 under Section 143(3) read with Section 144 of the Income Tax Act, 1961 (hereinafter referred to as the Act ). Respondent No. 1 is the Assessing Officer of the Petitioner who has issued the impugned notice. Respondent No. 2 is the Principal Commissioner of Income Tax, who has the administration jurisdiction over the cases of the Petitioner and who has allegedly granted approval for issuance of impugned notice. Respondent No. 3 is the Union of India and is the employer of Respondent Nos. 1 2. The Respondent No. 1 Assessing Officer has issued the notice dated 25.03.2021 under Section 148 of the Act, seeking to reopen the concluded assessment of the Petitioner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ome Tax Department could not have issued the impugned notice dated 25.03.2021 i.e., subsequent to the approval of the Resolution Plan. The contentions are based on the proposition that the claims which were not a part of the Resolution Plan are not maintainable against the Corporate Debtor, nor can any claim be initiated thereafter and hence, the Respondents are not entitled to initiate any proceedings for recovery of any dues from the Petitioner (Corporate Debtor). 8. There is no dispute that the claim raised through the impugned notice was not a part of the Resolution Plan. However, Shri Bhattad, learned counsel for the Respondent Nos. 1 and 2, has come up with a defense that the claim raised through the impugned notice could not be a part of the Resolution Plan inasmuch as the claim was not crystallized at that time. According to him, the notice has been issued under Section 148 of the Act on the ground that the income chargeable to tax for the assessment year 2014-15 has escaped assessment and therefore, the Petitioner has been called upon to submit its return under the provisions of the Income Tax Act, 1961. The claim itself has been disclosed subsequent to the approval of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e adjudicating authority a creditor including the Central Government, State Government or any local authority is entitled to initiate any proceedings for recovery of any of the dues from the corporate debtor, which are not a part of the resolution plan approved by the adjudicating authority? 11. While settling the answer to the aforesaid questions, the Hon ble Supreme Court has elaborately discussed series of its judgments. We will cite only those findings that are helpful in answering the question involved in the present Petition. 12. As held by the Hon ble Supreme Court, one of the dominant objects of the IBC is to see that an attempt has to be made to revive the Corporate Debtor and make it a going concern. For that a Resolution Applicant has to prepare a Resolution Plan on the basis of the Information Memorandum containing various details that have been gathered by Resolution Professional after having received various claims in response to the statutorily mandated public notice. The resolution plan is approved by Committee of Creditors (hereinafter referred to as COC ). The Resolution Plan is then required to be approved by the Adjudicating Authority i.e., NCLT and onc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be read as a whole. Harmonious construction of sub section (10) of Section 3 of the I B Code read with sub sections (20) and (21) of Section 5 thereof would reveal, that even a claim in respect of dues arising under any law for the time being in force and payable to the Central Government, any State Government or any local authority would come within the ambit of operational debt . The Central Government, any State Government or any local authority to whom an operational debt is owed would come within the ambit of operational creditor as defined under subsection (20) of Section 5 of the I B Code. Consequently, a person to whom a debt is owed would be covered by the definition of creditor as defined under subsection (10) of Section 3 of the I B Code. As such, even without the 2019 amendment, the Central Government, any State Government or any local authority to whom a debt is owed, including the statutory dues, would be covered by the term creditor and in any case, by the term other stakeholders as provided in sub section (1) of Section 31 of the I B Code. 99. The Division Bench of the Rajasthan High Court in D.B.Civil Writ Petition No.9480 of 2019 in the case of Ultr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in force, including claims under the Income Tax Act, 1961 which is payable to the Central Government or the State Government, would come within the ambit of Operational Creditors. Further, the claim of operational creditors will also include a claim of statutory authority like Income Tax Department on account of money receivable pursuant to an imposition by a statute. The Hon ble Supreme Court has also upheld the view taken by the Rajasthan High Court holding that the demand notices issued by the Central Goods and Service Tax Department, for a period prior to the date on which NCLT has granted its approval to the Resolution Plan, are not permissible in law. The concluding remarks of the Hon ble Apex Court are that, on the date of approval of the Resolution Plan by the Adjudicating Authority, all such claims which are not a part of the Resolution Plan, shall stand extinguished and no person will be entitled to initiate or continue any proceedings in respect to a claim, which is not a part of the Resolution Plan. The expression that no person will be entitled to initiate any proceedings would include the proceedings in the nature of notice issued under Section 148 of the Income Tax ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sessee but no assessment has been made and it is noticed by the Assessing Officer that the assessee has understated the income or has claimed excessive loss, deduction, allowances or relief in the return. There are other Clauses also that would indicate the reasons for escaping the assessment. The point is, once the public announcement is made under the IBC by the Resolution Professional calling upon all concerned, including the statutory bodies, to raise claim, it would be expected from all the stakeholders to diligently raise their claim. The Income Tax authorities in that sense, ought to have been diligent to verify the previous years assessment of the Corporate Debtor as permissible under the law and to raise the claim in the prescribed form within time before the Resolution Professional. In the present case, the Income Tax Authorities failed to do so and therefore, the claim stood extinguished. 22. As stated earlier, there could be a contingency where statuary claim is raised after the approval of the Resolution Plan, owing to receipt of information of the Corporate Debtor having suppressed certain facts while filing returns of the previous years, which then could not be a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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