IN IA(IBC)/147/KOB/2021 IN IBA/38/KOB/2019 (Under Section 42 of the IBC, 2016)

In the matter of M/s. Albanna Engineering (India) Private Limited MEMO OF PARTIES:

DEPUTY COMMISSIONER Works Contract, Kerala State Goods and Services Department, Ernakulam.

… Appellant -Vs-

VINOD BALACHANDRAN FCA, Liquidator, 70/1909, Asoka Road, Kaloor, Kochi-

682 017 … Respondent Order delivered on: 11.09.2023 Coram:

Hon’ble Member (Judicial) : TMT. Justice T Krishna Valli (Retd.)

Hon’ble Member (Technical) : Shri. Shyam Babu Gautam Appearances:

For the Appellant : Mr. Arun Chandy, Government Pleader For the Respondent : Mr. Vinod Balachandran, Liquidator

O R D E R

Per Coram

1. This Company Appeal is filed under Section 42 of the IBC, 2016 by Deputy Commissioner, Works Contract, Kerala GST Department against the Liquidator of M/s Albanna Engineering (India) Private Limited (the Corporate Debtor) for rejection of their claim in liquidation proceedings and to direct the liquidator to accept the Annexure A1 claim.

The Brief facts of the case are as follows: -

2. M/s. Albanna Engineering (India) Private Limited (hereinafter the ) was admitted to CIRP vide order of this Tribunal dated

25.10.2019 and appointed the respondent as the IRP and later as ‘CD’

the RP with approval of the COC. Subsequently the CD was admitted to liquidation by this Tribunal on 02.12.2021 and the respondent was appointed as the liquidator. It is stated that the CD is a wholly owned subsidiary of M/s. Albanna Engineering LLC, UAE and is a registered dealer under Kerala VAT Act having TIN:32072000387.

3. The appellant states that on verification of the assessment records for period 2016-17, certain irregularities were noted and notice under section 25(1) of the KVAT act was issued to CD. After considering the submissions from liquidator, vide order dated 26.09.2022, a demand of Rs. 5,96,23,334/-(Tax- Rs.3,59,17,671 and Interest- Rs. 237,05,663/- was issued. It is stated that the public announcement of liquidation was made on 09.12.2021 and last date for filing claim was 16.01.2022. The appellant state that due to non-

intimation of the liquidation by the liquidator, the appellant filed Annexure A1 claim in Form C dated 29.09.2022 only on 01.10.2022.

4. It is stated that the liquidator vide Annexure A2 email dated

11.10.2022 rejected the claim as follows:-

I am in receipt of Form C dated September 29,2022 works regarding contract liability claim for the assessment year 2016-1 7 amounting “

to Rs.5.9Cr. As mentioned before in my e- mail dated September 27, 2022 and also the meetings in your office on October 7, 2022, I am unable to accept the claim under Section 38 of 180, 2016 and Regulation 12(2), 17, 30 of IBBI (Liquidation process} Regulations, 2016 since the last date for submission of claims was Jan 6, 2022. The claim is now received in the 9 months of the Liquidation period when the Liquidation process is nearing completion

5. The appellant states that the rejection of cla.”im by liquidator is in violation of section 88(1) of the CGST Act, 2017 which state that the liquidator shall be bound to within 30 days of his appointment give intimation to the commissioner. The appellant further relies on State Tax Officer Vs Rainbow Papers Ltd (2022 KHC 6921) to state that the State is a secured creditor under section 3(30) of IBC and delay in filing of claim cannot be the sole ground for rejection of claim. Appellant further rely on section 38 of KVAT Act, 2003, being a non obstante provision state that the Tax payable by a dealer shall have first charge on property of such dealer irrespective of any law in time being in force. The Appellant state that there exist no wilful laches or delay on part of the appellant and that it is due to administrative procedure in seeking approval from Joint Commissioner of Law that the claim was filed belatedly.

6. On respondent side, the liquidator state that after CIRP order dated

25.10.2019, the public announcement was made on 03.11.2019. Subsequently CD was put to liq