(07^th February, 2023)

Justice Anant Bijay Singh;

The instant Appeal was heard together with Company Appeal (AT)

(Insolvency) Nos. 241 and 242 of 2022. The instant Appeal preferred under

Section 61 of the Insolvency and Bankruptcy Code, 2016 (for short IBC) being

aggrieved and dissatisfied by the order dated 20.01.2021 passed by the

Adjudicating Authority (National Company Law Tribunal, Guwahati Bench,

Guwahati) in IA No. 10 of 2020 in C.P. (IB) No. 20/GB/2017 wherein the

application i.e. I.A. No. 10 of 2020 filed by the Respondent herein /Corporate

Debtor- Assam Company India Ltd. prayed for the following reliefs:

i) Direction to be given to the respondents for stay of all the

operations for attachment against the Applicant.

ii) Setting aside of the order for attachment.

iii) Recalling of the observation passed by the Hon’ble National

Company Law Tribunal, Guwahati.

iv) Ad-interim order in terms of prayers above.

By which the Adjudicating Authority passed the following orders:

“20. Since the Respondents have filed its further claim by issuing

attachment notices dated 28.01.2020 under Section 226 (3) of the

Income Tax Act, 1961 attaching a sum of Rs. 6,71,05,730.00 towards

Income Tax and Rs. 1,70,53,311.00 towards interest for the

assessment year 2014-15 to the Banker of the applicant i.e. to the

Chief Manager/Principal Officer, Allahabad Bank, Dibrugarh Bench

i.e. after 15 months of the approval of the Resolution Plan, their claim

at this stage cannot be entertained. Prayer made by the Resolution

Applicant in this I.A. No. 10 of 2020 [in CPIB No. 20/GB/2017] is

accepted to the following extent:

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(1) Attachment orders issued by the Income Tax Department are

hereby set aside.

(2) Company can operate the Bank Account without any

obstructions from the Income Tax Department.

(3) The Resolution Applicant / the Petitioner is hereby directed to

strictly implement the Resolution Plan as approved in time

without any violation.

(4) The Petitioner is further directed to file a compliance report within

15 days of this order before the Registry stating that the

Company has been paying all current statutory dues up-to-date

especially, EPF, Income Tax, GST without delay.

21.

Accordingly, the IA No. 10 of 2020 is disposed of with the above

observations and directions.”

2.

The facts giving rise to this Appeal are as follows:

i)

A Financial Creditor i.e. Seri Infrastructure Pvt. Ltd. had approached the

National Company Law Tribunal, Guwahati Bench by filing an application under

Section 7 of the Insolvency and Bankruptcy Code,2016 seeking initiation of

corporate insolvency resolution process ("CIRP") of the Assam Company India

Ltd. ("Corporate Debtor"). The said application was registered and numbered as

CP (IB) No. 20/GB/2017 and the same was admitted vide order dated

26.10.2017 and an interim resolution professional ("IRP") was appointed. On

coming to know about the insolvency proceedings, the Appellants placed before

the Resolution Professional ("RP") demand of income tax for the Assessment Year

2013-14 for Rs. 6,69,84,657 and Assessment Year 2014-15 for Rs. 9,50,41,296

totaling to Rs. 16,20,25,953/- which were outstanding before the date of

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admitting the said application. The claim was filed in the form of ‘Form B’ dated

14.11.2017.

ii)

On 12.01.2018, a Resolution Professional named CA Kannan Tiruvengada

was appointed. The Resolution Professional informed the Appellants that the

claim of the Department would not be admitted since the Respondent has

preferred an appeal with the Commissioner of Income Tax (Appeals) for both the

aforementioned Assessment Years. The Resolution Professional, however,

communicated that after the final order of the CIT(A), the new promoter of the

Respondent would pay the demand which is a statutory liability. In response to

this, the Appellants contended that the mere filing of an appeal would not grant

immunity to the Respondent from recovery of tax dues. The Resolution

Professional in a written communicated d