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TMI Blog2023 (9) TMI 139X X X X Extracts X X X X X X X X Extracts X X X X ..... TMI 188 - SUPREME COURT] which judgment has no application in the facts of the present case - It was held in the case that NCLT and NCLAT would have jurisdiction to enquire into questions of fraud, they would not have jurisdiction to adjudicate upon disputes such as those arising under MMDR Act, 1957 and the rules issued thereunder, especially when the disputes revolve around decisions of statutory or quasijudicial authorities, which can be corrected only by way of judicial review of administrative action. Hence, the High Court was justified in entertaining the writ petition and we see no reason to interfere with the decision of the High Court. The Order of the Adjudicating Authority in the Appeal cannot be sustained - Appeal allowed. - [ Justice Ashok Bhushan ] Chairperson And [ Mr. Barun Mitra ] Member ( Technical ) For the Appellant : Advocate Nakul Mohta, Advocate Riya Dhingra , Advocate Dinkar Singh with Rahul, Advocate For the Respondent : Advocate Zulifer Ali ORDER Heard Learned Counsel for the Appellants as well as Learned Counsel for the Respondent. 2. Company Appeal (AT) Ins. No. 362 of 2023 has been filed by the Liquidator challenging th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Anr decided on 07.02.2023. 7. Learned Counsel appearing for the Successful Bidder challenging the Order contends that the properties were mortgaged to the Punjab National Bank and charge of the PNB was registered with the Ministry of Corporate Affairs and at best the Sales Tax Officer will have Second Charge. It is submitted that even if it is assumed that Sales Tax Department was secured creditor, they have not exercised their right under Section 52 of the Code to proceed with the assets. The assets become part of Liquidation Assets. He further referred to Regulation 21A of Liquidation Process Regulations, 2016. He submits that assets being part of the liquidation assets, Liquidator has rightly declared the Appellant Successful Bidder. 8. Learned Counsel appearing for the State Tax Department refuted the submissions of Learned Counsel for the Appellants and submits that attachment which was made of the properties under Section 35 of Maharashtra Value Added Tax Act was never challenged by the Appellant and although the right of Appeal is given under Section 35(6) but they having never exercised the right, the said order of attachment became final. He further submits that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Tribunal, at the time of initiation of CIRP. If Section 60(5)(c) 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 40 (7j-rL 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. (It will be a different matter, if proceedings under statutes like Income Tax Act had attained 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. 12. There cannot be dispute to th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... king possession of, selling or otherwise disposing off the security, the secured creditor may make an application to the Adjudicating Authority to facilitate the secured creditor to realise such security interest in accordance with law for the time being in force. (6) The Adjudicating Authority, on the receipt of an application from a secured creditor under sub-section (5) may pass such order as may be necessary to permit a secured creditor to realise security interest in accordance with law for the time being in force. (7) Where the enforcement of the security interest under subsection (4) yields an amount by way of proceeds which is in excess of the debts due to the secured creditor, the secured creditor shall (a) account to the liquidator for such surplus; and (b) tender to the liquidator any surplus funds received from the enforcement of such secured assets. (8) The amount of insolvency resolution process costs, due from secured creditors who realise their security interests in the manner provided in this section, shall be deducted from the proceeds of any realisation by such secured creditors, and they shall transfer such amounts to the liquidato ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on Process) (Amendment) Regulations, 2019.] 13. The argument that even if it is assumed that Sales Tax Department is secured creditor, it has not exercised its right under Section 52, the assets will be part of the Liquidation Estate as per the statutory provisions has substance. Further, Learned Counsel has rightly pointed out to the fact that charge is registered of the PNB as first charge holder. The judgment of this Tribunal in Department of State Tax, Through the Dy. Commissioner of State Tax Vs. Zicom Saas Pvt. Ltd. Anr as has been relied by Learned Counsel for the Liquidator, the provisions of Section 37 of Maharashtra Value Added Tax Act, 2002 which is the provision applicable in the present case have been considered and the Judgment of the Hon ble Supreme Court in State Tax Officer Vs. Rainbow Papers Limited was also taken note and relied on. After quoting the provisions of GVAT Act, Section 48 which was relied in Rainbow Papers Limited and Section 37 of MVAT Act, following was stated in paragraphs 9 to 10: 9. When we compare the provisions of Section 48 of the provision of Gujarat Values Added Tax which was relied in Rainbow Papers Limited and the Prov ..... X X X X Extracts X X X X X X X X Extracts X X X X
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