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Proviso with Section 18(1) of the RERA Act, 2016 deals with only one circumstance if the allottee does not intend to withdraw from the project, then obviously an allottee is entitled to get delayed interest only but there is no bar to claim other reliefs provided in the Act to protect the rights of the allottees – Shri Devendra Kumar Vs. Apna Ghar Buildwell Pvt. Ltd. (Now known as Trehan Apna Ghar Pvt. Ltd.) – Rajasthan REAT

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From a bare reading of Section 18(1) of the Real Estate (Regulation and Development) Act, 2016, it is It is evident that proviso of Section 18(1) of the Act provided for only delayed interest, if the allottee does not intend to withdraw from the project, but provision is not independent in the nature and must be looked into not only with the text of main Section 18, but also in the light of scheme of the Act, to gather very intention of the legislature as per “theory of Harmonious Construction”, as per law of the interpretation.

Proviso with Section 18(1) of the RERA Act, 2016 deals with only one circumstance if the allottee does not intend to withdraw from the project, then obviously an allottee is entitled to get delayed interest only but there is no bar to claim other reliefs provided in the Act to protect the rights of the allottees – Shri Devendra Kumar Vs. Apna Ghar Buildwell Pvt. Ltd. (Now known as Trehan Apna Ghar Pvt. Ltd.) – Rajasthan REAT Read Post »

The liquidator’s fees is contingent upon the time taken to realise/ distribute the amounts amongst stakeholders – Stakeholders Consultation Committee of Punjab Basmati Rice Ltd. Vs. Mr. Sanjay Kumar Aggarwal, Liquidator of Punjab Basmati Rice Ltd. – NCLAT New Delhi

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The liquidator’s fees is contingent upon the time taken to realise/ distribute the amounts amongst stakeholders – Stakeholders Consultation Committee of Punjab Basmati Rice Ltd. Vs. Mr. Sanjay Kumar Aggarwal, Liquidator of Punjab Basmati Rice Ltd. – NCLAT New Delhi Read Post »

Income Tax Refund of liquidation period cannot be adjusted/ set off against past years outstanding demands | Insolvency Code overrides Income Tax Act, 1961 – Vinod Kumar Kothari, Liquidator of CD Vs. The Assessing Officer, Income Tax Department and Ors. – NCLT Kolkata Bench

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In this important judgment, Hon’ble NCLT Kolkata Bench holds that:
(i) Where matters covered by the 2016 Code are concerned [including insolvency resolution of corporate persons] if provisions contained therein are inconsistent with other statutes, including the Income Tax Act, 1961, it shall override such laws.
(ii) The Income Tax Department may have claim against the Corporate Debtor and would fall under the category of an Operational Creditor and would have to accordingly file their claim before the Resolution Professional or the Liquidator, in the present case, with the Liquidator for recover of their dues in the requisite form.
(iii) The refund from the Income Tax falls under the asset of the Corporate Debtor and would be added to the liquidation assets. Under the scheme of the code, the Creditors; in this case the Income Tax Department, are not empowered to set off the returns of the Corporate Debtor which fell within the liquidation period against the past dues.
(iv) The Code overrides the Income Tax Act, 1961 in so far as the present case is concerned and hence the adjustment of the Income Tax returns during the liquidation period which is an asset of the Corporate Debtor in pursuance to the Income Tax Act, 1961 is void.

Income Tax Refund of liquidation period cannot be adjusted/ set off against past years outstanding demands | Insolvency Code overrides Income Tax Act, 1961 – Vinod Kumar Kothari, Liquidator of CD Vs. The Assessing Officer, Income Tax Department and Ors. – NCLT Kolkata Bench Read Post »

Section 32A(2) of Insolvency and Bankruptcy Code, 2016 provides immunity to the properties of the Corporate Debtor forming part of Resolution Plan approved under 31 of IBC from any action by any Authority – STCI Vs. DSK Southern Projects Pvt. Ltd. – NCLT Mumbai Bench

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The Adjudicating Authority finds that the provisional order attaching the properties of the Corporate Debtor, subject matter of present application, came to be passed on 14.02.2019 and the Corporate Debtor was admitted to CIRP under Section 9 of the Insolvency and Bankruptcy Code,2016 from 21.12.2021 and the Corporate Debtor was resolved pursuant to order of this Bench dated 17.02.2023. The Hon’ble NCLAT in its order in the matter of the Directorate of Enforcement V/s. Shri. Manoj Kumar Agarwal (2021) ibclaw.in 182 NCLAT has held that the Enforcement Directorate cannot hold or encumber the property of Corporate Debtor upon commencement of CIRP in its case. This the Hon’ble Apex Court in the matter of Essar Steel India Ltd. v. Satish Kumar Gupta [2019] ibclaw.in 07 SC held that “hydra head popping up” should be prevented and emphasized that the prospective resolution Applicant, who successfully takes over the business of the Corporate Debtor, should be protected from any past claim from resurging and thereby throwing the resolution applicant into uncertainty. This prompted the legislation to insert Section 32A in the Code.

Section 32A(2) of Insolvency and Bankruptcy Code, 2016 provides immunity to the properties of the Corporate Debtor forming part of Resolution Plan approved under 31 of IBC from any action by any Authority – STCI Vs. DSK Southern Projects Pvt. Ltd. – NCLT Mumbai Bench Read Post »

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