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TMI Blog2023 (3) TMI 401X X X X Extracts X X X X X X X X Extracts X X X X ..... by following the decision of the coordinate bench of ITAT, Mumbai referred above, we hereby dismiss the appeals filed by the revenue and the assessee so also the cross objection filed by the assessee, with a liberty to both the assessee and the Official liquidator to recall the present order by filing appropriate application within the permissible limitation, as and when the occasion so warrants. In the present case also, as held by the coordinate bench of ITAT, Mumbai referred above, the issue of limitation in filing fresh appeal, if need be, is to be dealt in accordance with the decision of Hon ble Supreme Court in the case of New Delhi Municipal Council Vs. Minosha India Ltd. (supra) [ 2022 (5) TMI 1123 - SUPREME COURT] - ITA No.2307/Kol/2016, CO No.85/Kol/2018 In ITA No.2307/Kol/2016 And ITA No.1863/Kol/2018 And ITA No.1842/Kol/2018 And ITA No.1718/Kol/2019 - - - Dated:- 28-2-2023 - Shri Rajpal Yadav, Vice President And Shri Girish Agrawal, Accountant Member For the Assessee : None For the Revenue : Shri G. Hukugha Sema, CIT, DR Shri Vijay Kumar, Sr. DR ORDER PER Bench: This is a bunch of four appeals and one Cross Objection. Department has f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t direction given by NCLT, Kolkata in this respect is reproduced as under; a. IA No.1027/KB/2020 filed by Mr. Pankaj Kumar Tibrewal, RP of Amrit Feeds Limited, the Corporate Debtor, is allowed and the Corporate Debtor is ordered to be liquidated in terms of section 33(2) of the Code read with subsection (1) thereof. b. Invoking the powers conferred by section 34(4)(c) of the Code, this Adjudicating Authority hereby appoints Mr. Sunil Mohan Acharya (Regn. No. TBBIIIPA003/ IPN000174/ 20182019/ 12120, email: [email protected] as the liquidator of the Corporate Debtor. c. The Liquidator shall initiate liquidation process as envisaged under ChapterIII of the Code and the Insolvency Bankruptcy Board of India (Liquidation Process) Regulations, 2016. d. Public Notice shall be issued III the same newspapers in which advertisements were issued earlier, i.e., in 'Financial Express' (English) and 'Ekdin' (Bengali) of Kolkata edition of the said newspapers stating that the corporate debtor is in liquidation. e. All the powers of the Board of Directors, and of key managerial persons, shall cease to exist in accordance with section 34(2) of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Principal Commissioner of Income-tax Vs Monnet Ispat Energy Ltd. [2019] 107 taxmann.com 481 wherein the Hon ble Apex Court had observed that as per section 238 of IBC, the IBC Code will override anything inconsistent contained in any other enactment, including the Act. 5.1. It is also trite to peruse section 178 of the Act which has been amended for the purpose of preventing any conflict with provisions of IBC Code which is reproduced as under:- 178. (1) Every person (a) who is the liquidator of any company which is being wound up whether under the orders of a court or otherwise ; or (b) who has been appointed the receiver of any assets of a company; (hereinafter referred to as the liquidator) shall, within thirty days after he has become such liquidator, give notice of his appointment as such to the Income-tax Officer who is entitled to assess the income of the company. (2) The Income-tax Officer shall, after making such enquiries of calling for such information as he may deem fit, notify to the liquidator within three months from the date on which he receives notice of the appointment of the liquidator the amount which, in the opinion of the Income-tax ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as already been dealt with in the judgement of Hon ble Supreme Court in New Delhi Municipal Corporation vs Minosha India Ltd. [2022] 138 taxmann.com 73. 8. In the result, appeals filed by the Revenue and by the Assessee are dismissed. 6. Similar issue was dealt by the coordinate bench of ITAT, Mumbai in the case of Pratibha Industries Ltd. Vs. DCIT [2022] 142 taxmann.com 295 (Mum.) which has held that where insolvency petition was filed against the assessee company and liquidation proceedings were in progress, as in case of parallel proceedings under the Act and IBC, the IBC had overriding effect over the provisions of the Act, thus, cross appeals filed by the revenue and assessee against the order of Ld. CIT(A) deserve to be dismissed. The relevant extract of the said decision is reproduced below for ease of reference: These cross appeals have been filed the Revenue and the Assessee challenging various grounds as against the order of Ld.CIT(A) pertaining to various assessment years. 2. There is delay in filing the appeals in ITA No.7006 7007/Mum/2016 by 10 days. After hearing the parties, we deem it fit to condone the delay and admit appeals for adjudication. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (2) to (4) xxxxxxxxxxxxxxxxxxxxxxxxxx (5) Subject to section 52, when a liquidation order has been passed, no suit or other legal proceeding shall be instituted by or against the corporate debtor: 5. Therefore, we are of the considered opinion that no suit or other legal proceedings shall be initiated by or against the corporate debtor which is also applicable for pending proceedings and the Proviso to section 33(5) also provides prior approval of the Adjudicating Authority to be obtained by the Official Liquidator. 6. Pertinently, it is also to be observed that in case of parallel proceedings under Income-tax Act, 1961 and IBC, 2016, the IBC has an overriding effect over the provisions of the Income-tax Act which has been decided by Hon ble Apex Court in Principal Commissioner of Income-tax Vs Monnet Ispat Energy Ltd in Special Leave to Appeal (C) No(s). 6483/2018 Ors dated 13/08/2018 wherein the Hon ble Apex Court had observed that as per section 238 of IBC, the IBC Code will override anything inconsistent contained in any other enactment, including the Income-tax Act. It is also trite to peruse section 178 of the Income-tax Act, 1961 which has been amended ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ity of the liquidator under this subsection shall be to the extent of such amount.] (5) Where there are more liquidators than one, the obligations and liabilities attached to the liquidator under this section shall attach to all the liquidators jointly and severally. (6) The provisions of this section shall have effect notwithstanding anything to the contrary contained in any other law for the time being in force (except the provisions of the Insolvency Bankruptcy Code, 2016). 7. From the above observation and also by the decisions of coordinate bench of this Tribunal, we hereby dismiss the cross appeals filed by the Revenue and the Assessee with the liberty to the appellants / Official Liquidator to recall the present order when the occasion warrants. The issue of limitation in filing fresh appeal, if need be, has already been dealt with in the judgement of Hon ble Supreme Court in New Delhi Municipal Corporation vs Minosha India Ltd. [2022] 138 taxmann.com 73. 8. In the result, appeals filed by the Revenue and by the Assessee are dismissed. 7. Considering the facts and circumstances of the present case and the observations noted above and also by follo ..... X X X X Extracts X X X X X X X X Extracts X X X X
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