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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 ..... s have been filed against the same impugned Order dated 10th February, 2023 passed by the Adjudicating Authority in I.A. No. 1300/MB/C-I, 2020. 5. Brief facts of the case necessary to be noticed for deciding these two Appeals are:- i. Corporate Insolvency Resolution Process for the Corporate Debtor-Linkson International Limited commenced on 06.10.2017. ii. There were dues of Sales Tax Department of the State of Maharashtra on the Corporate Debtor and to recover the dues of the Sales Tax Department of the State of Maharashtra, the Attachment Orders were passed on 28th May, 2015 attaching the assets of the Corporate Debtor. The Attachment Order continued, however the asset could not be sold by the Sales Tax Department. iii. Liquidation commenced on 20th July, 2018 in which liquidation proceedings, the claim was filed by the Sales Tax Officer, which claim to the extent of Rs. 101.87 Crore was admitted by the Liquidator. In the Liquidation Proceeding, the Liquidator proceed to issue Auction Notice on 01st August, 2021 and Tapadia Polyesters Pvt. Ltd. was declared the Successful Bidder on 25.09.2021. iv. I.A. No. 1300 of 2020 was filed by the Liquidator before the Adjudicating ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be brought before the Adjudicating Authority under Section 60(5) of the Code. He has relied on the portion of the Judgment which has been relied on by Learned Adjudicating Authority in paragraph 25 of the Order. Learned Counsel further submits that attachment being continued, the Adjudicating Authority has rightly rejected the Application of the Liquidator. 9. We have considered the submissions of Learned Counsel for the parties and have perused the record. 10. There is no dispute between the parties regarding the sequence of the events. There is also no dispute that properties of the Corporate Debtor were attached by the Sales Tax Department on 28.05.2015. Attachment was made prior to initiation of CIRP and continued even during the Liquidation Process that is why the Liquidator filed an Application for release of the attachment. 11. We may first notice the submission of Learned Counsel for the Respondent relying on the Judgment of the Hon'ble Supreme Court in 'M/s. Embassy Property Development Pvt. Ltd.'. In paragraph 25 of the Impugned Order, the relevant portion of the Judgment of the Hon'ble Supreme Court which has been relied by Learned Adjudicating Authority is as follow ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... final could not have been called in question. There cannot be any dispute to the preposition that orders passed by the Statutory Authorities which have become final against the Corporate Debtor cannot be questioned and the said order can be questioned under the relevant statute only. Present is not a case where the Liquidator has questioned the attachment order. Attachment Order has become final and Attachment continued till date. The question is of consequence of the attachment on the assets of the property. Learned Counsel for the Successful Bidder has rightly relied on Section 52 of the IBC and Regulation 21A of Liquidation Process Regulations. Section 52 and Regulation 21A are as follows: "Section 52: Secured creditor in liquidation proceedings.- (1) A secured creditor in the liquidation proceedings may- (a) relinquish its security interest to the liquidation estate and receive proceeds from the sale of assets by the liquidator in the manner specified in section 53; or (b) realise its security interest in the manner specified in this section. (2) Where the secured creditor realises security interest under clause (b) of sub-section (1), he shall inform the liquidator ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of sub-section (1) of section 53." Regulation 21A: Presumption of security interest.- (1) A secured creditor shall inform the liquidator of its decision to relinquish its security interest to the liquidation estate or realise its security interest, as the case may be, in Form C or Form D of Schedule II: Provided that, where a secured creditor does not intimate its decision within thirty days from the liquidation commencement date, the assets covered under the security interest shall be presumed to be part of the liquidation estate. (2) Where a secured creditor proceeds to realise its security interest, it shall pay - (a) as much towards the amount payable under clause (a) and sub-clause (i) of clause (b) of sub-section (1) of section 53, as it would have shared in case it had relinquished the security interest, to the liquidator within ninety days from the liquidation commencement date; and (b) the excess of the realised value of the asset, which is subject to security interest, over the amount of his claims admitted, to the liquidator within one hundred and eighty days from the liquidation commencement date: Provided that where the amount payable under this sub - ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... provision in Central Act. The IBC Section 53 itself provides waterfall mechanism which may be treated to be law which has been contemplated under Section 37 of the MVAT Act, 2002. 10. We thus are of the view that the Judgement of the Hon'ble Supreme Court in "Rainbow Paper Limited" relied by Learned Counsel for the Appellant is distinguishable. The Appellant having been treated as Operational Creditor allocation of amount in the Resolution Plan cannot be said to be in violation of Section 30 (2)(b). We thus are of the view that no ground has been made to interfere with the Impugned Order." 14. The above supports the submission of Liquidator that the Respondent Department cannot be treated as secured creditor of the Corporate Debtor. We thus are of the view that even when there is attachment of the assets, Sales Tax Department cannot be the owner of the assets and the asset continued to be owned by the Corporate Debtor and will be part of the Liquidation Estate. The Adjudicating Authority committed error in rejecting the I.A. filed by the Liquidator relying on the Judgment of Hon'ble Supreme Court in "M/s. Embassy Property Development Pvt. Ltd." which judgment has no applicat ..... X X X X Extracts X X X X X X X X Extracts X X X X
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