ORDER

PER D. Arvind, Member (Technical)

1. This Court is congregated through hybrid mode.

2. Heard the Learned Counsels for both parties.

3. This Application has been filed by the Income Tax Department, TDS Jamshedpur (hereinafter called as “Petitioner” against the Resolution Professional of Kohinoor Steel Private Limited (hereinafter called “Respondent/RP) seeking direction to RP to clear the TDS dues of the Corporate Debtor (Kohinoor Steel Private Limited) to the tune of Rs. 4,31,090/-.

Factual Matrix:

4. The Corporate Debtor was put into CIRP in November 2019 by an Order of this Adjudicating Authority and accordingly public announcement was made announcing the date of submission of the claim to be December 4, 2019.

5. The Applicant filed its claim in the prescribed form on 25th November 2022, which is nearly 3 years after the due date for submission of the claim.

6. The Applicant is not praying for condonation of delay in filing the claim with RP and instead asking for direction of payment of alleged TDS dues of Rs. 4,31,090.

In C.P. (IB) No. 82/KB/2019 Petitioner’s submissions:

7. The Petitioner submits that they were unaware of the CIRP proceedings of the Corporate Debtor and when they became aware, they submitted the claim with the Resolution Professional on

25.11.2022, by way of a demand notice.

8. Further, it is submitted that the claim in the prescribed form for Rs. 4,31,090/- for outstanding TDS in the case of the Corporate Debtor was submitted in the capacity of operational Creditor on 9.12.2022. Further, it is claimed that as the Corporate Debtor’s registered office is in Bangalore, the public announcement made was not known to the Applicant’s office situated in the state of Jharkhand.

9. Further, it is contended that the demand notices were issued on

15.11.2019 and 05.02.2020 to the Corporate Debtor. However, no cognizance of the above notices was taken by the Resolution Professional of the Corporate Debtor.

10. It is further contended that at least six such demand notices have been sent to the Resolution Professional and yet he ignored the same. He relied on the decision rendered by the Principal Bench of the NCLT, New Delhi, in SBI v. APGL Ltd, in (IB)- 531(PB)/2019 wherein it was held that it was irrelevant whether the claim was lodged or not since the government dues would always be reflected in the books of accounts of the Corporate Debtor and the Resolution Professional would be required to take In C.P. (IB) No. 82/KB/2019 cognizance of the dues as per the books of accounts. Therefore, the application has to be allowed.

Respondent’s Submissions per contra:

11. The Learned Counsel, Ms. Urmila Chakraborty appearing on behalf of Resolution Professional (RP) submits that such TDS dues are not reflected in the books of accounts of the Corporate Debtor and hence case law relied on by the Applicant is not applicable in the present case.

12. She further submits that as a creditor of a Corporate Debtor, during the CIRP, must first lodge its claim within the time prescribed.

13. She would contend that no payment could be made to any creditor during the moratorium period as this will lead to preferential payment to one creditor over others and therefore notices received in 2019 and 2022 could not be entertained in the absence of reflection of such dues in the books of Accounts of the Corporate Debtor.

14. We would note that on November 30, 2023, the matter was reserved for order and none appeared for the petitioner. We have further noted that the petitioner is not being represented for quite some time. Thus, we decided to proceed and consider the case of the petitioner on merits and based on the documents available with us.

In C.P. (IB) No. 82/KB/2019 Analysis and Findings:

15. It is evident that the TDS dues have not been reflected in the books of accounts of Corporate Debtor, in the absence of which, Respondent is correct in saying that the Applicant ought to have submitted the claim within the time limit prescribed. He is also right in s