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TMI Blog2024 (5) TMI 728X X X X Extracts X X X X X X X X Extracts X X X X ..... on Build Operate and Transfer (BOT) (annuity-basis) under the National Highway Development Project Phase-III. The agreement executed by the petitioner with the NHAI is produced as Annnexure-P/1 dated 24.02.2010. It was by Annexure-P2 dated 03.01.2020 that the NCLT, New Delhi, admitted the petitioner into the CIRP in terms of the IBC - Annexure-P/2 is dated 03.01.2020 and till the approval of the resolution plan on 10.05.2022 there was a moratorium under Section 14 of the IBC. It has to be noticed that this does not preclude the State Tax Authorities from proceeding with the assessment, which can be proceeded with, but no recovery can be effected. The State or the Central Government or any local authority definitely is reserved with the right to approach the Resolution Professional with their claims which the Resolution Professional is obliged to include in the resolution plan. There is also an appeal provided from the order of the NCLT to the National Company Law Appellate Tribunal which can be availed by any creditor whose claims have not been included by the resolution professional. In the present case there is no challenge against the resolution plan as approved by the COC foll ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uthorities not moving the National Company Law Tribunal (for brevity NCLT ) for inclusion of their demand in the resolution plan, as a debt payable by the Company-a Corporate Debtor under the IBC. 2. Mr. Gopal Jain, learned Senior Counsel for the petitioner in his arguments laid thrust on the creditor driven regime as is brought out under the IBC. The Corporation Bank a Financial Creditor, as is distinguished from an Operational Creditor; which the State Government would have been if the claims were raised at the proper time, had moved the NCLT against the petitioner company styling itself as the Corporate Debtor. An Interim Resolution Professional was appointed and M/s Silver Point Luxemburg Platform (SARL) approached the Tribunal as a Resolution Applicant (RA) with a resolution plan to revive the petitioner company in terms of the IBC. The resolution plan placed before the Committee of Creditors was agreed to by a majority of 97% following which the Tribunal approved it on 10.05.2020. The petitioner s management was handed over to the R.A., and it was later to this, that notices were issued for assessment of tax for the subject assessment years. 3. The petitioner-company, taken o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ll claims which are not part of the resolution plan shall stand extinguished. It was categorically held that none would be entitled to initiate or continue any proceeding in respect of a claim, which is not a part of the resolution plan. The State Government had not approached the NCLT despite the initiation of the proceedings; which was notified by public notice and also in the website of the Registrar of Companies. The State Government having not taken recourse to the remedy available, for including such debts in the resolution plan, is now estopped from taking recovery proceedings. 6. Reference is also made to the decision in M/s Ruchi Soya Industries Vs. Union of India; (2022) 20 GSTR-OL 59, wherein, referring to Ghanshyam Mishra (supra) the claim raised by the 2nd respondent in that case after public announcements were issued under Sections 13 and 15 of the IBC was found to be not surviving since the resolution plan did not include such dues. Therein the office of the 2nd respondent had lodged a claim before the R.P. in respect of one of the demands but had failed to lodge the claim with respect to the demand which was the subject matter of the decision. The Hon ble Supreme Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as passed on 04.03.2023 and an Appeal was filed on 18.04.2023 which was rejected on 12.08.2023 while the moratorium was in force. Obviously, the State Taxes Department could not have taken any proceedings during the moratorium and the assessment had to be completed within the time provided under the BGST Act. 9. It is emphasized that under Section 82 of the BGST Act there is a statutory charge created on the assets of the assessee with respect to any tax, interest, penalty or other dues payable under the Act. The statutory charge as created would give the Government the status of a secured creditor as has been held in State Tax Officer Vs. Rainbow Papers Ltd., (2023) 9 SCC 545. 10. It is pointed out that Ghanshyam Mishra (supra) was specifically noticed in the said decision and it was held that there was no obligation on the part of the State to lodge a claim in respect of dues which are statutory dues for which recovery proceedings have also been initiated. It is pointed out that the Hon ble Supreme Court had specifically noticed that the books of accounts of the Corporate Debtor would have reflected the liability to the State in respect of the statutory dues and hence it was obli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ure-P/1 dated 24.02.2010. It was by Annexure-P2 dated 03.01.2020 that the NCLT, New Delhi, admitted the petitioner into the CIRP in terms of the IBC. An interim resolution professional was appointed, who was later confirmed as the resolution professional. M/s Silver Point Luxemburg Platform had made the resolution plan as an R.A. and by Annexure-P/3 dated 10.05.2024, the resolution plan submitted by the R.A. through the R.P. was approved. A monitoring committee was also constituted whose tenure ended on 27.3.2023. The management of the petitioner Company now vests in the newly constituted Board of Directors which was constituted by the R.A. 14. Annexure-P/2 is dated 03.01.2020 and till the approval of the resolution plan on 10.05.2022 there was a moratorium under Section 14 of the IBC. It has to be noticed that this does not preclude the State Tax Authorities from proceeding with the assessment, which can be proceeded with, but no recovery can be effected. In any event as submitted by the learned Government Advocate, the first notice was issued only after the resolution plan was approved on 10.05.2022, which also was within time as provided under the BGST Act to carry out an assess ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hall stand extinguished and no proceedings in respect of such dues for the period prior to the date on which the adjudicating authority grants its approval under Section 31 could be continued. 17. Apposite, would also be, reference to paragraph no. 14 of the decision in Ruchi Soya (supra), which is extracted hereinbelow: - 14. Admittedly, the claim in respect of the demand which is the subject- matter of the present proceedings was not lodged by respondent No. 2 after public announcements were issued under sections 13 and 15 of the IBC. As such, on the date on which the resolution plan was approved by the learned NCLT, all claims stood frozen, and no claim, which is not a part of the resolution plan, would survive. 18. Lastly, we would refer to paragraph no. 107 of the decision in C of C of Essar Steel India Limited (supra), which is extracted hereinbelow:- 107. For the same reason, the impugned NCLAT judgment [Standard Chartered Bank v. Satish Kumar Gupta, 2019 SCC OnLine NCLAT 388] in holding that claims that may exist apart from those decided on merits by the resolution professional and by the Adjudicating Authority/Appellate Tribunal can now be decided by an appropriate forum i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Compelling reliance is placed on Rainbow Papers (supra) wherein, the NCLAT dismissed the appeal filed by the State Tax Officer, against an order of the NCLT, rejecting an application seeking the tax demand under the Gujarat Value Added Tax Act, 2003 to be the first charge over the property of the Corporate Debtor. Certain dates are relevant; which we would refer to briefly. The date of admission of the company petition by the NCLT, which petition was made by an operational creditor, was by order dated 12.09.2017. An R.P. was appointed on 22.09.2017 who invited claims from the creditors under Section 15 of the IBC by issuance of newspaper publications; the last date of submission of claims being 05.07.2017. The committee of creditors was constituted on 10.10.2017 which replaced the R.P. approved by the NCLT on 06.11.2017. The State Tax Officer under the VAT Act filed a claim before the resolution professional in the requisite form which was rejected by order dated 22.10.2018, against which an Appeal was taken to the NCLAT and then before the Hon ble Supreme Court. 21. The Hon ble Supreme Court held in the said decision that there was no obligation on the part of the State to lodge ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 23. PVVNL (supra) was with respect to a liquidation process as was specifically noticed by the Division Bench, while Rainbow Papers (supra) was in the context of a resolution process. In PVVNL (supra) the challenge was to the order of the NCLT directing the District Magistrate and Tehsildar, Muzaffarnagar to release the property attached for the electricity dues of the Corporate Debtor, payable to PVVNL. Therein also PVVNL raised the claim of statutory first charge created by way of an agreement, which was in accordance with the provisions of the Electricity Act, 2003 and the Regulations framed under it including the U.P. Electricity Supply Code, 2005. It was noticed by the learned Judges that, concurrently it was found that PVVNL and the charge created in its favour, fall under the definition of security interest as defined under Section 3(31) of the IBC; which definition was in the widest of terms. The order of the NCLT was approved finding that, even the dues to the Central or the State Government payable into the respective consolidated funds stand on a different footing; covered only under Section 53(1)(e) of the IBC, in a liquidation proceeding. The debts owed to secured cre ..... X X X X Extracts X X X X X X X X Extracts X X X X
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