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TMI Blog2023 (8) TMI 176X X X X Extracts X X X X X X X X Extracts X X X X ..... for RP ORDER The application is filed under section 60 (5) of IBC, 2016 by the Resolution profession for direction directing the respondent to release the assets (documents) which were seized by the Respondent on 10.03.2023 and to initiate proceedings against the respondent under section 70(2) of IBC, 2016. 2. The brief facts of the case necessary to dispose of this application are as follows: The corporate debtor M/s Mango meadows Agricultural Pleasure land Private Limited, engaged in business of amusement park was admitted into CIRP in C.P.No.6/KOB/2022 on 25.01.2023 by this Adjudicating Authority on the section 7 of IBC 2016 petition filed by financial creditor "Kosamattam Finance Limited". The applicant was appointed as IRP, then the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onducted under section 67(2) of Act. On the search tax evasion was detected and seized the seven registers. Thereafter summons dated 13.03.2023 and 28.03.2023 were issued to the applicant to produce the Books of account and to record statement, but the applicant not appeared instead he filed this application. The search was conducted to gather evidences for determination of tax under section 74 of GST Act. The tax determination and tax assessment are not covered under moratorium. The recovery of tax alone prohibited by virtue of moratorium order passed under IBC. The summon were issued to erstwhile directors of corporate debtor to gather documents and to record their statements. There is no bar in the Act to issue summon to erstwhile direct ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ocuments in the presence suspended Board of director. On the respondent side justified the action that the acts of the respondent come under the purview of part of assessment proceeding. Further submitted irrespective of mortarium the respondents are empowered to raid the premises of any person registered with under the GST, inclusive of corporate debtor under the management of resolution professional under section 67 of the Kerala State Goods and Services Tax Act 2017. In support of his contention relies upon the following Apex court citations. (1) M/s Embassy Property Development Pvt Ltd vs State of Karnataka and Others. [2020] ibclaw.in 12 SC (2) Sundaresh Bhatt Liquidator of ABG shipyard vs Central Board of Indirect Taxes and custom ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arely applies to the interplay between the IBC and the customs Act in this context. 8. In this case the Apex court observed that the custom authorities under the customs Act during the period of moratorium can only take steps to determine the tax, interest, fine or any penalty which is due. However, the authority cannot transgress such boundary and proceed to initiate recovery in violation of section 14 or 33(5) of IBC, 2016. 9. In this case the respondent taken shelter that the raid conducted by the respondent on 10.03.2023 is only part of proceeding to determine the tax due and it was not a proceeding to recover the dues. 10. The assessment is defined in Section 2(11) of the Kerala State Goods and Services Tax Act 2017, and chapter XII ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s found in audit and asked the registered person to submit reply, is hit by mortarium order passed under section 14 of IBC 2016 and stayed/kept in abeyance, the proceedings pursuant to the said impugned notice till the lifting of moratorium. 13. The Government of India, Ministry of Finance, finance Department also issued Circular No.134/04/2020-GST under section 168(1) CGST Act, Annexure A1 of the petition explaining that no coercive action to be taken in respect of dues of GST pertaining to corporate debtor, under the CIRP. The respondent despite the supra guidance taken the coercive action. 14. The acts of the respondent undermined the authority of Resolution professional and because of seizure of Books of accounts of the corporate debt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... In the result: (i) The respondent is hereby directed to return all the documents seized from the premises of the corporate debtor to the applicant within a week from date of this order. (ii) The summon dated 13.03.2023 issued by the respondent to the corporate debtor is hereby set aside. (iii) The respondent is hereby directed to pay a compensatory cost of Rs.50,000/- (Rupees fifty thousand only) to the applicant towards the CIRP cost and (iv) Liberty is granted to the respondent, after paid the supra compensatory cost to recover it from the erred officials. 18. The Registry is hereby directed to send e-mail copies of the order forthwith to all the parties and their counsel for information and for taking necessary steps. 19. Let t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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