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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 ..... x Act 2017, R/w Rule 101(4) of KGST Rule, informing the discrepancies 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. 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 - the acts of the respondent undermined the authority of Resolution professional and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 applicant made a public announcement under Form A on 28.01.2023 inviting claims from the creditors. Intimation regarding the order of CIRP against the corporate debtor was sent to respondent on 01.03.2023. The respondent submitted its claim for a sum of Rs.36,56,077.51/- on 06.03.2023. In pursuance of the CIRP order moratorium under section 14 of IBC 2016 is came into operation/effect fr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction 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 directors of the corporate debtor. The corporate debtor is presently under the management of applicant hence summon was issued to him also to gather evidence and to record his statements to determine tax liability of corporate debtor under section 74 of GST Act. To arrest the leakage of revenue to the exchequer the search was conducted under section 67(2), the summons issued under section 70, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... solution 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 customs 2022 Live Law (SC) 715. 6. In the Embassy case the respondent relied upon para 40 of the Judgment, there it is observed that to enforce any public law NCLT cannot be approached through resolution professional. There the subject involved is the Government of Karnataka rejected the request of Resolution professional to extend the lease agreement beyond the period of agreement ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 of the said Act from sections 59 to 64 deals with the various kinds and ways of assessment. The respondent under the guise of assessing or determining the dues, transgress and invoked the coercive provisions of law in Chapter XIV of the Kerala State Goods and Services Tax Act 2017. In pursuance of search the respondent issued a summon to the applicant under section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 debtor causes much inconvenience and paralyzed the Resolution process, the same shall be completed in time bound manner. 15. In the circumstances it is concluded that the search and seizure of records of the corporate debtor and issuance summons to applicant/resolution profession are violative of mortarium order passed under section 14 of IBC, 2016. 16. On the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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