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TMI Blog2022 (4) TMI 782X X X X Extracts X X X X X X X X Extracts X X X X ..... nsequent to any Resolution Plan. As there is nothing to stop the Applicant/Liquidator herein to proceed under the relevant provision to revive the provisional attachment. And that, this Adjudicating Authority having not found any conflict between the two statutes as there is no bar in selling the property of the Corporate Debtor solely on the ground that the Corporate Debtor is under Liquidation. And that the Liquidator is also not barred by the code to add the said property into the liquidation estate. The applicant/Liquidator herein is open to approach the appropriate forum to raise the attachment or any other relief as per the provisions of the said act. Application dismissed. - MA/1372, 1373/2019 and MA/69/2020 in MA/1130/CAA/2019 in CP/612(IB)/2017 - - - Dated:- 29-3-2022 - S. Ramathilagam, J. (Member (J)) And Anil Kumar B., Member (T) For the Appellant : B. Dhanaraj, Advocate For the Respondents : R. Shankaranarayanan, ASGI and Raj Jabhakh, Advocate ORDER S. Ramathilagam, J. (Member (J)) Under consideration are three Miscellaneous Applications viz., MA/1372/2019, MA/1373/2019 and MA/69/2020 seeking the following reliefs: In MA/1372/2019: ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4 Authorised Representative of Workmen Employee 1 TOTAL 92 3. It is averred in the Application that, the ex-director/shareholder of the Company being aggrieved by the Order of Liquidation, had preferred an Appeal vide Company Appeal (AT) (Insolvency) No. 482 of 2019 before the Hon'ble National Company Law Appellate Tribunal (NCLAT), New Delhi. Thereafter, the Hon'ble NCLAT vide Order dated 03.05.2019 disposed of the Appeal with the following observations and directions: In view of the observations aforesaid, we hold that the Liquidator is required to act in terms of the aforesaid directions of the Appellate Tribunal and take steps under section 230 of the Companies Act. If the members or the Corporate Debtor or the Creditors or a class of creditors like :Financial Creditor or Operational Creditor approach the company through the liquidator for compromise or arrangement by making proposal of payment to all the creditor(s), the Liquidator on behalf of the company will move an application under Section 230 of the Companies Act, 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t Room 302, Shylee Nivas Service Apartments, Nutech Lushington, Old No. 41, New No. 76, Block-II, 1st Main Road, CIT Nagar, Nandanam, Chennai-35 was searched and many memorandums of understanding, land documents, share certificates, etc were found and seized. 7. The Liquidator has also received an Assessment Order under Section 143(3) and 153A and a Demand Notice under Section 156 of the Income Tax Act, 1961 dated 31.12.2019 from the DCIT, Central Circle-2(2), the 2nd Respondent calling the Corporate Debtor to pay a sum of ₹ 1,85,50,88,875/- within a period of 30 days from the date of receipt of the said notice. 8. The Applicant avers that answer from the Shri O. Arumugasamy, Erstwhile Director of the company records that: The abovementioned amount of ₹ 400 Cores was received as advance towards share Transfer of M/s. Senthil Papers and Boards Private Limited out of the total consideration of ₹ 600 Crores. For the receipt of the Share Transfer Advance, an MoU was signed by the 5 shareholders of the Corporate Debtor and handed over to Sh. Senthil, Advocate... Also at the time of receipt of ₹ 400 Crores, we have given all our shareholders' Share ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion of Benami Property Transactions Act, 1988. Along with the said Order, a show cause notice was also issued under Section 24(1) by the Respondent to the Corporate Debtor. ii. It is averred by the Counsel for the Respondent that the order was well founded based on the premise that the transaction is in the nature of benami transaction within the meaning of section 2(9)(A) of the Prohibition of The Benami Transactions Act, 1988. Further, it is averred that, pursuant to the search action conducted under section 132 of the Income Tax Act, various incriminating documents and loose sheets were found and seized, which inter alia shows that during the period of demonetization ₹ 400 Crore in Old High Denomination Notes were given to Senthil Group, Coimbatore by Smt. Sasikala through her intermediaries and that this transaction is evidenced by a Memorandum of Understanding dated 22.11.2016. iii. It is further averred by the counsel Respondent that on 18.11.2017 a Service Apartment at Room No. 302, Shylee Nivas Service Apartments, Nutech Lushington, Old No. 41, New No. 76, 1st Main Road, CIT Nagar, Nandanam, Chennai-35 was searched during which many original MoUs, land docum ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ome Tax. In this regard, the Counsel for the Respondent has relied upon the Hon'ble Supreme Court's judgment in Embassy Property Developments Pvt. Ltd. V. State of Karnataka Ors.: If Section 60(5) of IBC is interpreted to include all questions of law or facts under the sky, an interim Resolution Professional/Resolution Professional will then claim a right to challenge the order of the Income Tax Appellate Tribunal before the NCLT, instead of moving a statutory appeal under Section 260A of the Income Tax Act, 1961. Therefore, the jurisdiction of the NCLT delineated in Section 60(5) cannot be stretched so far as to bring absurd results. Wherever the corporate debtor has to exercise rights in judicial, quasi-judicial proceedings, the RP cannot short-circuit the same and bring a claim before NCLT taking advantage of Section 60(5). v. The Counsel for the Respondent further draws distinction between Section 32A of the IBC, 2016 and the Prohibition of Benami Property Transaction Act; that, Section 32A of the IBC was incorporated to provide immunity to bona fide and successful Resolution Applicants or purchasers of assets sold at the time of liquidation. It ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... I B Code was reiterated stating that, the section 32A is brought to prevent potential abuse and to provide immunity against prosecution of the Corporate Debtor and any actions against the property of the Corporate Debtor in order to fill the critical gaps in the corporate insolvency framework. Therefore, the Applicant/Liquidator may approach the Hon'ble Adjudicating Authority for appropriate directions to prevent any abuse or to provide any immunity against prosecution of the Corporate Debtor or against the property of Corporate Debtor. 14. Furthermore, the Applicant relied upon the Hon'ble Supreme Court case in Solidaire India Ltd. Vs. Fairgrowth Financial Services P. Ltd. (2001 (1) SCR 932) regarding the overriding effect of the I B Code over the Benami Act wherein, it was observed that, if two special statutes contain non-obstante clause the latest statute will prevail. More importantly, the Applicant states that, the properties attached are charged in RoC and mortgaged to financial creditors prior to the alleged offence. In order to substantiate this, the Applicant has relied upon the decision of the Hon'ble Appellate Tribunal for Benami Act in the case relat ..... X X X X Extracts X X X X X X X X Extracts X X X X
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