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TMI Blog2024 (11) TMI 851X X X X Extracts X X X X X X X X Extracts X X X X ..... enue : Shri Kailash C. Kanojiya ORDER PER K.M. ROY, A.M. The Revenue has filed appeals for the assessment year 2007 08 and 2009 10, which arose out of the impugned orders of even date 21/06/2016, and the assessee has also filed its appeal for the assessment year 2003 04, which arose out of the impugned order dated 28/12/2016. All these appeals have been passed by the learned CIT(A) 3, Nagpur. 2. For the assessment year 2007 08, the Revenue in its appeal has raised following grounds: 1. On the facts and in the circumstances of the case and in law, the Ld. CIT(A) has erred in restricting the disallowance u/s 40(a)(ia) to Rs. 24,11,192/- as against Rs. 3,87,04,378/- disallowed by the AO holding that disallowance u/s 40(a)(ia) can be made only of such expenses on which tax was not deducted at source and which were payable as on the last day of the year without appreciating the fact that the Gujarat High Court in the case of Sikandarkhan N.Tunvar (33 taxmann.com 133) and Calcutta High Court in the case of Crescent Exports Syndicate (33) taxmann.Com 250) have held that the provisions of sec. 40(a)(ia) would cover not only the amounts which are payable as on 31 March of a previous year bu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gh Court in the case of Crescent Exports Syndicate (33 taxmann.Com 250) have held that the provisions of sec. 40(a)(ia) would cover not only the amounts which are payable as on 31st March of a previous year but also the amounts which are payable at any time during the year. 5. On the facts and in the circumstances of the case and in law, the Ld. CIT (Appeals) has erred in deleting the addition of ALV of the unsold flats under the head income from house property without taking into consideration the decision of the Delhi High Court in the case of Ansal Housing Finance Leasing Co. Ltd. (354 ITR 180) wherein it has been held that the annual letting value of unsold flats in the closing stock / inventory should be taxed under the head income from house property. 6. Any other ground that may be urged at the time of hearing. 2. Before us, during the course of hearing, while going through the material available on record filed by the learned Authorised Representatives appearing for the assessee, it is evident that the assessee company had gone under insolvency proceeding under Insolvency and Bankruptcy Code Act, 2016, and furnished a copy of the order dated 04/06/2024, passed by the Nation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... could not controvert this position and submitted that the assessee company has gone under Insolvency proceeding under Insolvency and Bankruptcy Code Act, 2016. 5. We have given a thoughtful consideration to the arguments made by the rival parties and perused the material available on record in the light of the provisions of Insolvency and Bankruptcy Code, 2016, and the judicial pronouncements of various Courts including that of the Hon ble Supreme Court and Hon ble Bombay High Court and other Jurisdictional Benches which strongly support the case of assessee. The NCLT has prohibited all the proceedings against the assessee before any of the Courts including this Tribunal and also judgments relied upon by the learned A.R. for the assessee which covers the case of the assessee respondent. Hence, in view of the judicial pronouncements, as relied upon by the learned A.R. appearing for the assessee, the appeal filed by the Revenue is liable to be dismissed. 6. In the result, appeals filed by the Revenue for the assessment year 2007 08 and 2009 10 are dismissed. ITA No.486/Nag./2016 Assessee s Appeal 2003 04 4. Following grounds have been raised by the assessee: The order passed is illeg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... recedence even over secured creditors, who are private persons. We are of the view that the High Court of Delhi, is therefore, correct in law 7. This issue is also covered by the decision rendered by the Co ordinate Bench of the Tribunal, Mumbai C Bench, in Pratibha Industries Ltd. v/s DCIT, ITA no.1395 to 1399/Mum./2021, order dated 13/06/2022, wherein the Tribunal held as under: Subject to section 52, when a liquidation order has been passed, no suit or other legal proceedings shall be instituted by or against the corporate debtor; Therefore, we are of the considered opinion that no suit or other legal proceedings shall be initiated by or against the corporate debtor which is also applicable for pending proceedings and the proviso to section 33(5) also provides prior approval of the Adjudicating Authority to be obtained by the Official Liquidator. Pertinently, it is also to be observed that in case of parallel proceedings under Income Tax Act 1961 and IBC, 2016, the IBC has an overriding effect over the provisions of the Income Tax Act which has been decided by Hon‟ble Apex Court in Pr. CIT v. Monnet Ispat Energy Ltd (2019) 107 taxmann.com 481 (SC) : 2018 TaxPub(DT) 6660 (S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction, he shall be personally liable for the payment of the tax which is company would be liable to pay; Provided that if the amount of any tax payable by the company is notified under sub-section (2), the personal liability of the liquidator under this sub-section shall be to the extent of such amount.] (5) Where there are more liquidators than one, the obligations and liabilities attached to the liquidator under this section shall attach to all the liquidators jointly and severally. (6) The provisions of this section shall have effect notwithstanding any things to the contrary contained in any other law for the time being in force (except the provisions of the Insolvency Bankruptcy Code, 2016)‟ 8. Keeping in view the aforesaid judicial pronouncements, we hold that the appeal filed by the assessee is liable to be dismissed. We respectfully follow the directions, as contained in Para 4 of the order dated 28/11/2022, passed in Vasan Health Care Pvt. Ltd. (supra), wherein the Hon ble J.M. is a party to that order, are reproduced below: 4. Under the given factual matrix, we see no reason to keep the appeals pending. Both sides concurred that the appeals may be dismissed with a l ..... X X X X Extracts X X X X X X X X Extracts X X X X
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