Bombay High Court
Murli Industries Limited, Nagpur vs Assistant Commissioner Of Income ... on 13 August, 2021
Bench: S.B. Shukre, Anil S. Kilor
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
CIVIL WRIT PETITION NO.2948 OF 2021
MURLI INDUSTRIES LIMITED, NAGPUR
VS
ASSISTANT COMMISSIONER OF INCOME TAX, NAGPUR AND OTHERS
__________________________________________________________________________
Office Notes, Office Memoranda of Coram,
appearances, Court's orders or directions Court's or Judge's orders.
and Registrar's Orders.
Mr. Abhay Agrawal , Advocate a/w. Mr. Niraj Sheth, Advocate for
petitioner
Mr. Anand Parchure, Advocate for the respondent Nos.1 to 3
CORAM : SUNIL B. SHUKRE AND
ANIL S. KILOR, JJ.
DATE : 13th AUGUST, 2021.
Heard Mr. Agrawal learned counsel for the
petitioner.
2. Contention is that respondent No.1 cannot
continue with the proceeding which he is intending to
initiate in pursuance of the impugned notice dated
25.03.2021 issued under Section 148 of the Income Tax
Act, 1961 (for short the "Act of 1961"), which pertains
to assessment of the income tax which has escaped the
attention of the Assessing Officer while assessing the
income in a particular order.
3. According to learned counsel for the
petitioner, the petitioner is a company which went in
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liquidation and ultimately submitted itself to the
procedure prescribed under the Insolvency and
Bankruptcy Code and after appointment of Committee
of Creditors, resolution plan was prepared and now the
resolution plan has also received approval of the
National Company Law Tribunal (NCLT). He fuhrer
submits that by the impugned notice, information has
been called from the petitioner company regarding the
income for the year 2014-15. But, the fact is that
income tax authorities have already raised their claims
by placing different demands before the Committee of
Creditors (CoC) and their claims, to the extent approved
by the CoC, are now forming part of the resolution plan
finalized by the NCLT. He further submits that once
resolution plan is finalized, as per the judgment of the
Apex Court in Ghansham Mishra &S ons (P) Ltd.
Edelweiss Asset Reconstruction Co. Ltd., (2021) 126
Taxmann.com 132(SC), the claims as provided in the
resolution plan stand frozen and they are binding upon
all the creditors, stock holders, debtors, employees and
so and so forth. It is further held in this case that on the
date of the approval of the resolution plan by the
adjudicating authority, all such claims, which are not a
part of by the resolution plan, shall stand extinguished
and no person will be entitled to initiate or continue
with any proceeding in respect of a claim which is not a
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part of the resolution plan. He further submits that the
Apex Court has held, reiterating its view taken in Pr. CIT
Vs. Monnet Ispat Energy Ltd. SLP (C) No.6483/2018,
that in view of provisions Section 238 of the Insolvency
and Bankruptcy Code, the provisions of I & B Code will
have an overriding effect, if there is any inconsistency
with any of the provisions of the law for the time being
in force or any instrument as in effect by virtue of any
such law.
4. Thus, the learned counsel for the petitioner
submits that the impugned notice could not have been
issued even under the provisions of Section 148 of the
Act of 1961, especially when there is a declaration by
the Supreme Court in the case of Ghansham Mishra
(supra) that all future claims of all kinds of creditors
arising after the finalization of resolution plan, stand
extinguished. The learned counsel also submits that all
these objections were taken by the petitioner in its
several communications sent to the respondent no.1.
But, the respondent no.1 did not take any cognizance of
the same and is going ahead with the proceedings under
Section 148 of the Act of 1961.
5. Issue notice for final disposal at admission
stage to the respondents, returnable after four weeks.
6. Shri Anand Parchure, learned counsel waives
notice for the respondents. He submits that even now
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the petitioners can approach the respondent no.1 with
the aforestated objections and if they do approach, the
respondent no.1 shall decide the same, in accordance
with law, as expeditiously as possible. Liberty is granted
to the petitioner accordingly.
7. It is clarified that if the respondent no.1
intends to issue assessment order, he shall do so only
after lapse of a week's time after he takes a decision as
to objection of tenability of the proceeding under
Section Section 148 of the Income Tax Act before him
raised by the petitioner.
8. Liberty to file rejoinder is granted.
JUDGE JUDGE
nd.thawre
