Calcutta High Court (Appellete Side)
Ultra Tech Nathdwara Cement Limited vs Union Of India & Ors on 8 July, 2021
Author: Md. Nizamuddin
Bench: Md. Nizamuddin
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.
3
(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 4 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 5 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.)