35 (1) (k)

Can a Liquidator, under Section 33(5) of the IBC, be permitted to defend an Income Tax Appeal on behalf of the Joint Venture of the Corporate Debtor? – CA Rajeev Bansal, Liquidator of Isolux Corsan India Engineering & Construction Pvt. Ltd. – NCLT Chandigarh Bench

Hon’ble NCLT Chandigarh Bench held that IT Appeal is not against the Corporate Debtor. Although the Corporate Debtor is one of the Joint Venture partners of the Assessee, but the Assessee and Corporate Debtor are separate legal entities. As the Assessee is a separate legal entity than the Corporate Debtor, it apparently does not justify giving the approval to the Corporate Debtor to defend the IT Appeal against the Assessee. It is not clear, how the TDS refund amount received to the Assessee, if there is success in defending the IT Appeal, can be included in the liquidation estate.

Can a Liquidator, under Section 33(5) of the IBC, be permitted to defend an Income Tax Appeal on behalf of the Joint Venture of the Corporate Debtor? – CA Rajeev Bansal, Liquidator of Isolux Corsan India Engineering & Construction Pvt. Ltd. – NCLT Chandigarh Bench Read Post »

Whether moratorium under Section 33(5) of IBC during Liquidation Process, bars on adjustment of Income Tax Refund with past dues | Whether on completion of Income Tax assessment proceedings during liquidation, the Income Tax Department can avail of set-off suo motu – Avil Menezes Liquidator of Sunil Hitech and Engineers Ltd. Vs. Principal Chief Commissioner of Income Tax, Mumbai – NCLAT New Delhi

In this important judgment, Hon’ble NCLAT held that:

(i) Section 14 prohibits both institution and continuation of pending suits or proceedings against the Corporate Debtor, Section 33(5) of IBC is only a bar on the institution of new suits during the liquidation process.
(ii) There is no bar in a suit or a legal proceeding continuing along with liquidation proceedings as pending suits or legal proceeding have not been included within the scope of moratorium under Section 33(5) of IBC.
(iii) Set-off has been claimed after passing of the liquidation order which is legally permissible under Chapter III Part II of IBC.
(iv) The Income Tax authority enjoys limited jurisdiction of continuing with assessment proceedings and in determining the quantum of Income Tax dues but does not enjoy the jurisdiction and power to suo motu initiate recovery of dues or execute their claim unilaterally by adjusting the Income Tax Refund amount with past tax dues.
(v) While applying the principle of set-off, it must be kept in mind that no creditor ends up getting share disproportional to their dues.

Whether moratorium under Section 33(5) of IBC during Liquidation Process, bars on adjustment of Income Tax Refund with past dues | Whether on completion of Income Tax assessment proceedings during liquidation, the Income Tax Department can avail of set-off suo motu – Avil Menezes Liquidator of Sunil Hitech and Engineers Ltd. Vs. Principal Chief Commissioner of Income Tax, Mumbai – NCLAT New Delhi Read Post »

NCLT permits the Liquidator to initiate Arbitral proceedings and related or ancillary or contingent proceedings for the recovery of the outstanding dues – Mr. Abhijit Guhathakurta, Liquidator of EPC Construction (India) Ltd. – NCLT Mumbai Bench

In this case, an IA filed by Liquidator to initiate recovery proceedings.

NCLT Mumbai Bench has permitted Liquidator to initiate Arbitral proceedings and related or ancillary or contingent proceedings against Matix Fertilizers and Chemicals Limited in respect of the EPC contract dated 29.07.2010, Onshore Contract dated 29.07.2010 and Offshore Contract dated 20.08.2010 for the recovery of the outstanding dues.

NCLT permits the Liquidator to initiate Arbitral proceedings and related or ancillary or contingent proceedings for the recovery of the outstanding dues – Mr. Abhijit Guhathakurta, Liquidator of EPC Construction (India) Ltd. – NCLT Mumbai Bench Read Post »

NCLT denies to invoke jurisdiction u/s 60(50(c) in case of summons issued by the Enforcement Directorate under PMLA law are related to some investigation about the affairs of the Corporate Debtor and its officers prior to the CIRP – Siddhi Vinayak Logistics Ltd. Through its Liquidator Mr. Dushyant Dave Vs. The Deputy Director Directorate of Enforcement – NCLT Ahmedabad Bench

The Liquidator made payer to quash and set-aside certain summons/orders of attachment by the Enforcement Directorate during the investigation of the PMLA case registered against the Corporate Debtor and its officers.
NCLT held that the summons/orders issued by the Enforcement Directorate/Adjudicating Authority /Appellate Authority under that law are related to some investigation about the affairs of the Corporate Debtor and its officers prior to the CIRP. It has no relation of whatsoever nature about the insolvency of the Corporate Debtor or its liquidation process. The prayers as made therein are not maintainable before this Adjudicating Authority invoking provisions under section 60(5(c) of the IBC, 2016. Hence, applications to that extent need to be rejected.

NCLT denies to invoke jurisdiction u/s 60(50(c) in case of summons issued by the Enforcement Directorate under PMLA law are related to some investigation about the affairs of the Corporate Debtor and its officers prior to the CIRP – Siddhi Vinayak Logistics Ltd. Through its Liquidator Mr. Dushyant Dave Vs. The Deputy Director Directorate of Enforcement – NCLT Ahmedabad Bench Read Post »

Liquidator is permitted to invoke Arbitration Proceedings against IOCL and Foster Wheeler – Queztal Endeavour Pvt. Ltd. Vs. Mr. Abhijit Guthatakurtha – NCLT Mumbai Bench

This IA is filed by the Liquidator under proviso to section 33(5) read with Section 35(1)(k) and 60(5) of the Insolvency and Bankruptcy Code 2016 seeking permission of this bench to invoke arbitration and institute related/ancillary proceedings on behalf of the Corporate Debtor against Indian Oil Corporation Limited (IOCL) and Foster Wheeler and related or ancillary proceedings in relation to the lumpsum turkey contract dated 28.02.2011 executed for Pradip Refinery Project, including for recovery of monies. The Adjudicating Authority held that on perusal of the averments made in the IA, this Bench is satisfied and accordingly Liquidator is permitted to invoke Arbitration Proceedings against IOCL and FW.

Liquidator is permitted to invoke Arbitration Proceedings against IOCL and Foster Wheeler – Queztal Endeavour Pvt. Ltd. Vs. Mr. Abhijit Guthatakurtha – NCLT Mumbai Bench Read Post »

NCLT allowed the Liquidator to continue the proceedings in the two Commercial Suits before the Hon’ble Bombay High Court – Ashish Singh, as Liquidator of RRC International Freight Services Limited – NCLT Mumbai Bench

The Liquidator seeks leave of the court to continue the proceedings in the two Commercial Suits bearing No.842/2017 and No.310/2018 before the Hon’ble Bombay High Court.
The enforcement of the settlement entered into between the litigating parties in the two commercial suits would require legal proceedings to be instituted, which would squarely fall within the meaning “other legal proceeding” mentioned in the proviso to sub-section (5) of section 33. The terms of the settlement entered into in the two Commercial Suits bearing No.842/2017 and No.310/2018 before the Hon’ble Bombay High Court will inure to the benefit of the Corporate Debtor, thus increasing its liquidation value.

Therefore, this Adjudicating Authority hereby accords its approval to the Liquidator to take appropriate legal steps to enforce the settlement in the two Commercial Suits bearing No.842/2017 and No.310/2018 before the Hon’ble Bombay High Court, for the benefit of the Corporate Debtor.

NCLT allowed the Liquidator to continue the proceedings in the two Commercial Suits before the Hon’ble Bombay High Court – Ashish Singh, as Liquidator of RRC International Freight Services Limited – NCLT Mumbai Bench Read Post »

If a Corporate Debtor is already under CIRP then the liquidator of the Creditor’s Company is required to recover their claim by way of filling application under Section 7 or 9 of Code or in alternative he can approach Civil Forum for the recovery of the same – Ramachandra D Chaudhary Liquidator of Oasis Tradelink Ltd.  Vs. Marshall Multiventures  (I) Pvt. Ltd. – NCLT Ahmadabad

NCLT held that the said application is not at all maintainable. The liquidator is required to recover their sum by way of filling application under Section 7 or 9 of Code or in alternative he can approach Civil Forum for the recovery of the same, which he is obliged to do as per provisions of the Section 35(1)(k) of the Code.

If a Corporate Debtor is already under CIRP then the liquidator of the Creditor’s Company is required to recover their claim by way of filling application under Section 7 or 9 of Code or in alternative he can approach Civil Forum for the recovery of the same – Ramachandra D Chaudhary Liquidator of Oasis Tradelink Ltd.  Vs. Marshall Multiventures  (I) Pvt. Ltd. – NCLT Ahmadabad Read Post »

Liquidator has to defend the Corporate Debtor once he has taken the charge and if the prosecution is launched against the Company as well as against the Managing Director of the Corporate Debtor in his personal capacity, even after the liquidation proceedings have been started the Managing Director has to face the trial in his personal capacity & ultimately if the offence is proved he will be punished – Mr. Savan Godiawala Vs. Mr. G. Venkatesh Babu – NCLAT

NCLAT held that Liquidator has not committed the alleged offence therefore; he is not required to file Application before compounding authority accepting that he has committed an alleged offence. However it is true that the liquidator has to defend the Respondent No. 2 Company once he has taken the charge of the Company. We are unable to convince with the findings of Ld. Adjudicating Authority that the Respondent No. 1 is appearing in the Criminal Case filed against the Company as he was the then Managing Director. Actually the prosecution is launched against the Company as well as against the Respondent No. 1. in his personal capacity. Therefore, even after the liquidation proceedings have been started the Respondent No. 1 has to face the trial in his personal capacity and ultimately if the offence is proved he will be punished.

Liquidator has to defend the Corporate Debtor once he has taken the charge and if the prosecution is launched against the Company as well as against the Managing Director of the Corporate Debtor in his personal capacity, even after the liquidation proceedings have been started the Managing Director has to face the trial in his personal capacity & ultimately if the offence is proved he will be punished – Mr. Savan Godiawala Vs. Mr. G. Venkatesh Babu – NCLAT Read Post »

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