Ultra Tech Nathdwara Cement ... vs Union Of India & Ors
2021 Latest Caselaw 3651 Cal

08.07.2021
Sl. No.1.
P.B.

                                WPA 2036 (W) of 2020
                                        With
                                    CAN 1/2021
                        Ultra Tech Nathdwara Cement Limited
                                         Vs.
                                Union of India & Ors.



             Mr. Ajay Bhargava,
             Ms. Nandini Khaitan,
             Mr. Annunoy Basu,
             Ms. Priyanka Jain
                               ... ...for the petitioner

             Mr. Dhiraj Trivedi,
             Mr. M. Bandopadhyay.
                                ....... For the respondents


                   Heard     Learned   Advocates      appearing   for   the

             parties.

                   In this Writ Petition, Petitioners have challenged

             the following impugned orders passed by the respondent

             Income Tax authorities:

                   " (i) The order dated December 24, 2019 issued by

                           the respondents under Section 147/143 (3)

                           of the Income Tax Act, 1961;

                   (ii) The order dated December 31, 2019 under

                   Section 143 (3) of the said Act;

                   (iii) Notices cum intimations dated January 3,

                   2020, January 20, 2020 and January 23, 2020

                   issued by the respondent under Section 245 of the

                   said Act in respect of pending assessments,

                   appeals, litigations, show cause notices, pertaining
                                  2




      to the period prior to the Transfer Date, which

      have been settled in accordance with the approved

      Resolution Plan of Ultra Tech Cement Ltd."

      Petitioners       are   further    aggrieved     against    the

demand, inter alia, stating that the refund of Rs.

1,43,46,686/- and Rs. 67,69,380/- processed by the

respondents in favour of the petitioner shall be adjusted

against       the     outstanding       demand       existed     from

Assessment Year 2007-2008 till 2015-2016.

      Facts

involved in brief in this case are as follows:

(i) A petition was filed by Bank Of Baroda under Section 7 of Insolvency Bankruptcy Code, 2016 against Binani Cement Limited before the Hon'ble National Company Law Tribunal, Kolkata Bench which was admitted on 25th July, 2017 and Public Announcement was made by IRP in Form A as per Section 15 of the Insolvency and Bankruptcy Code, 2016 and claims were invited on 28th July, 2017.

(ii) A Resolution Plan submitted by Ultra Tech Cement Limited was unanimously approved on the COC meeting and the said Resolution Plan was approved by the National Company Law Appellate Tribunal in Company Appeal (AT) Insolvency No. 188 of 2018 on 14th November, 2018.

(iii) On 20th November, 2018 Management of Binani Cement Limited was taken over by Ultra Tech Cement Limited and the name of the corporate debtor (Binani Cement Limited) was changed to Ultra Tech Nathdwara Cement Limited.

(iv) There were several letters were issued from time to time for extinguishment of tax demand and it has also been brought to my notice that the aforesaid approved resolution Plan dated 14th November, 2018 was confirmed by the Hon'ble Supreme Court by its order dated 26th July, 2019.

The question of law raised by the petitioner in this

Writ Petition is whether respondent Income Tax

Authorities were legally justified in raising the aforesaid

demand and issuing notices and orders cum intimations

and whether the respondent Income Tax Authorities

were legally justified in initiating reassessment

proceeding and continuing with the assessment

proceeding for the Assessment Year 2012-13 and 2016-

17 respectively and completing the assessments by

orders dated 24th July, 2019 and 31st December, 2019

for the period prior to the transfer date and whether

such an Act of the respondent is in breach of violation of

the order dated 14th November, 2018 passed by the

National Company Appellate Tribunal approving the

Resolution Plan and Provisions of the Code where

approved Resolution Plan clearly states that no amount

shall be payable for any liability of the Corporate Debtor

towards tax, fee, interest or penalty.

The petitioner has also challenged initiation of

penalty proceedings under Section 271 (1) (C) of the

Income Tax Act, 1961 for the Assessment Year 2012-13

and 2016-17 for the periods prior to the Transfer Date.

Petitioners in support of his contention apart from

facts various provisions of law, have relied on a decision

of the Hon'ble Supreme Court in the case of

Ghanashyam Mishra & Sons Pvt. Ltd. -vs- Edelweiss

Asset Reconstruction Company Limited Passed in Civil

Appeal No. 8129 of 2019 judgment of the Hon'ble

Supreme Court dated 13th April, 2021 reported in 2021

SCC Online SC 313 particularly on Paragraph Nos. 50-

54 as well as 91-96 of the aforesaid judgment of the

Hon'ble Supreme Court.

Learned Advocates appearing for the respondents

could not satisfactorily justify the action of the

respondent Income Tax Authorities either in law or in

facts and also could not distinguish the aforesaid

judgment of the Hon'ble Supreme Court upon which

petitioners have relied.

Considering these facts I am of the view that for

proper adjudication of the issues involved in this Writ

Petition, elaborate hearing upon affidavits is required.

Petitioners have prima facie been able to make out a

case for the interim order.

Let there be an interim order restraining the

respondent Income Tax Authorities from taking any step

or further steps or acting in any manner contrary or

inconsistent with the approved Resolution Plan dated

14th November, 2018 which was confirmed by the order

passed by the Hon'ble Supreme Court dated 26th July,

2019 and the respondents are also restrained from

taking any further steps or to give further effect to the

orders dated 24th December, 2019, 31st December, 2019

and the Notices dated 3rd January, 2020, 20th January,

2020 and 23rd January, 2020 till 30th September, 2021

or until further orders whichever is earlier.

Affidavits may exchanged by the parties in the

following manner:

The respondents to file affidavit-in-opposition

within six weeks and the petitioners to file affidavits-in-

reply thereto, if any, within two weeks.

Matter to appear after 8 weeks for final hearing.

Any finding or observation made in this order

which is prima facie will have no impact at the time of

final hearing of this writ petition on merit.

CAN 1 of 2020 which is an application for interim

order stands disposed of.

(Md. Nizamuddin, J.)