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TMI Blog2022 (2) TMI 838X X X X Extracts X X X X X X X X Extracts X X X X ..... isfied by the order dated 23.10.2020 passed by the Ld. Adjudicating Authority (National Company Law Tribunal), Indore Bench at Ahmedabad Court 1 in IA 84 of 2020 in CP(IB) 113/2017 whereby and where under the Application bearing I.A. No. 84/2020 filed by Liquidator - Appellant herein for claiming refund of amount Rs. 28,53,000/- for the assessment year 2017-2018 and Rs. 38,67,570 for the assessment year 2019-2020 from Income Tax Department was rejected holding that it is not within our jurisdiction to direct Income Tax Department to give refund and further directed the liquidator to approach proper authority, the I.A. No. 84 of 2020 was not maintainable. 2. The facts giving rise to this Appeal are as follows: i) The Appellant filed I.A. N ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sued by the Respondent No. 1 for the Assessment Year 2017-18 demanding payment of Rs. 0 (Zero). With the computation sheet attached to notice, the liquidator came to the conclusion that Rs. 28,53,000/- was refundable to the account of Corporate Debtor. The refund was due to the TDS paid by the Corporate Debtor for the FY 2016-17 (Annexure A-7 at page 57 to 65 of the Appeal). vii) Further case of the Appellant is that vide mail dated 20.02.2020 the Respondent proposed for adjustment of refund towards the outstanding demand(s) (Annexure A-8 at page 66 of the Appeal). viii) The Appellant vide mail dated 31.03.2020 (Annexure A-9 at page 67 to 73 of the Appeal) and also letters sent on 25.06.2020 through a post responded to mail of 20.02.2020 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r filing its claim with the Liquidator, could adjust its crystalized debt with the amount of refund attributable to the Appellant thereby jumping the queue of Section 53 of the Code. 4. It is further submitted that the Respondent Department is an Operation Creditor in terms of Section 5(20) of the Code and debt of the Respondent is Operational Debt in terms of Section 5(21) of the Code. 5. It is further submitted that the Respondent herein filed its claim of Rs. 16,83,77,923/- including interest of AY 2008-09, 2009-10, 2010-11, 2011-12, 2012-13, 2014-15 and 2016-17 under FORM Cas Operational Creditor as on 02.11.2019. The Appellant acknowledged the receipt of the claim form vide mail dated 16.11.2019. Thereafter, the Appellant received a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... finality, fastening a liability upon the corporate debtor, since, in such cases, the dues payable to the Government would come within the meaning of the expression "operational debt" under Section 5(21), making the Government an "operational creditor" in terms of Section 5(20). The moment the dues to the Government are crystalised and what remains is only payment, the claim of the Government will have to be adjudicated and paid only in a manner prescribed in the resolution plan as approved by the Adjudicating Authority, namely the NCLT." 8. It is further submitted that the Ld. Adjudicating Authority has not considered these aspects of the matter and rejected the Application filed by Liquidator - Appellant herein. Based on these submissions ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... refunds against outstanding tax demand. 12. It is further stated that the assessee has contended that the liquidation estate comprises of assets that may not be in possession of the Corporate Debtor including not limited to encumbered assets as per Section 36(3)(b) of the IBC. It is true that refund claimed in return of income is an asset in the hands of the assessee as refund receivable, but Section 36 of the IBC does not override/hinders the operation of Section 245 of the Income Tax Act for adjusting refunds arising on account of TDS deducted on receipts from business and profession against outstanding tax demands as it does not have a non obstante clause. 13. It is further stated that on account of adjustment of refund, the liquidati ..... X X X X Extracts X X X X X X X X Extracts X X X X
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