Empee Distilleries Ltd v. The Deputy Commissioner of State Tax, State GST Department

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR. JUSTICE DINESH KUMAR SINGH`** ``` TUESDAY, THE 27[TH] DAY OF FEBRUARY 2024 / 8TH PHALGUNA, 1945 WP(C) NO. 35261 OF 2023 ``` ## **`PETITIONER:`** ``` EMPEE DISTILLERIES LTD, NEW INDUSTRIAL DEVELOPMENT AREA, MENONPARA ROAD, KANJIKODE, PALAKKAD. REPRESENTED BY ITS FACTORY MANAGER SRI. A. RAJINIKANTHAN., PIN - 678621 BY ADVS. S.ANIL KUMAR (TRIVANDRUM) M.RAJAGOPAL RAHUL A. SABU C.J ``` ## **`RESPONDENT:`** ``` THE DEPUTY COMMISSIONER OF STATE TAX, STATE GST DEPARTMENT, TAX PAYER SERVICES DIVISION, NEAR CIVIL STATION, PALAKKAD, PIN - 678001 ``` ``` ADV.P.R. SREEJITH-SC ADV.M.M JASMINE -GP ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 27.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` WP(C) NO. 35261 OF 2023 ``` ``` 2 ``` ## **‘CR’** ## **JUDGMENT** The petitioner is a company registered under the Companies Act, 1956 and is a dealer registered under the provisions of the Kerala General Sales Tax Act, 1963 (‘the Act’ for short). The Union Bank of India (Financial Creditor) filed a Company Petition against the petitioner company (Corporate debtor) before the National Company Law Tribunal, Chennai (“the NCLT” for short) under the Insolvency and Bankruptcy Code, 2016 (“ the IB Code” for short). The NCLT admitted the petition and ordered commencement of the Corporate Insolvency Resolution Process. Mr. S. Rajendran, had been appointed as Resolution Professional of the petitioner company as per the NCLT order dated 13.12.2018. Vide the order dated 01.11.2018 (Ext.P1), the NCLT issued moratorium till the completion of Corporate insolvency resolution process for the purposes referred to in Section 14 of the Code, in respect of the following: “(i) the institution of suits or continuation of pending suits or proceedings against the corporate debtor including execution of any judgment, decree or order in any court of law, tribunal, arbitration panel or authority. (ii) transferring, encumbering, alienating or disposing of by the corporate debtors any of its assets or any legal right or beneficial interest. (iii) any action of foreclose, recover or enforce any security interest created by the corporate debtor in respect of its property including any action under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (54 of 2002) (iv) the recovery of any property by an owner or lessor where such properties are occupied by or in the possession of the corporate debtor. “ ``` WP(C) NO. 35261 OF 2023 ``` ``` 3 ``` 2. The resolution Professional had called for submission of resolution plans from prospective resolution applicants for taking over the company as a going concern. The plan submitted by M/s SNJ Distillers Private Ltd having its registered office at No.72, Greams Road, Thousand Lights, Chennai, Pin code – 600 006 was approved by the Committee of Creditors unanimously with 100% voting, and the same plan was approved by NCLT on 20.01.2020 without any modification. The said order of the NCLT dated 20.1.2020 was challenged before the National Company Law Appellate Tribunal in Company Appeal (AT) No.551 of 2020. However, the said Company Appeal came to be dismissed by the order dated 20.08.2020. The order passed by the NCLT dated 20.08.2020 was affirmed by the Supreme Court by the order dated 26.11.2020 in Civil Appeal No. 3283 of 2020. 3.In view of the aforesaid and after dismissal of the Civil Appeal No. 3283 of 2020 by the Supreme Court, M/s SNJ Distillers Pvt Ltd took over the management of M/s Empee Distilleries Ltd as a going concern with effect from 01.04.2020 as per the order of the NCLT dated 20.01.2020. The resolution plan dated 17.07.2019 as approved by the NCLT interalia provides as under :- > “…………….(xii) Upon the approval of the plan by the Adjudicating Authority under section 31 of the Code, all pending proceedings relating to the winding up and insolvency resolution of the Corporate Debtor shall stand irrevocably and unconditionally abated, settled and extinguished in ``` WP(C) NO. 35261 OF 2023 ``` ``` 4 ``` perpetuity and all violations or breach of provision of law or breach of any terms and conditions ever been committed or breach of any agreement of the Corporate Debtor, shall stand condoned or waived and such agreements shall be treated as if no violation or breach have ever been committed. (xiii) Upon the approval of the plan by the Adjudicating Authority under section 31 of the Code, all contingent liabilities of the Corporate Debtor up to the date of approval of the Resolution Plan by the Hon’ble Adjudicating Authority arising out of any document, instrument, guarantee, disputes, proceedings, arbitrations etc, whether disputed or undisputed, equitable, legal, secured, unsecured or otherwise, to which the Corporate Debtor is a party shall, unless or otherwise stated in this Resolution Plan and irrespective of the final outcome of the disputes/legal proceedings, stand irrevocably and unconditionally abated, settled and extinguished in perpetuity .………………………………………………………………….. (xviii) All claims whether contingent or crystallized or disputed or undisputed and whether or not filed with Government authorities in relation to all taxes, levies or other statutory dues including but not limited to Income Tax, Goods and Service Tax, Sales Tax, VAT, Water, Electricity, Excise Duty, Custom Duty, Royalties and Fees, and/ or penalties including but not limited to fines and interest on FEMA/FERA/AML and other compliances and fines which the Corporate Debtor was or may be liable to pay (including with respect to Financial years under Assessments), all deductions and all withholding taxes on any payment, as required under applicable laws and pertaining to the period prior to the date of approval of the Resolution Plan by the Hon’ble Adjudicating Authorities stand irrevocably and unconditionally abated, settled and extinguished ………………………………………………………………... (xxiii) Governmental authorities shall not initiate any investigations, actions or proceedings against the Resolution Applicant and / or the corporate debtor in relation to any actions or omissions of the Corporate Debtor in relation to the period prior to the date of approval of the Resolution Plan. (xxiv) All claims of any person against the corporate debtor, in each case, which are not due as of the insolvency commencement date but relate to the period prior to the date of approval of the Resolution Plan by the Hon’ble Adjudicating Authority, shall immediately, irrevocably and unconditionally stand extinguished, waived, withdrawn and abated in perpetuity on and with effect from the date of approval of the Resolution Plan by the Hon’ble Adjudicating Authority, and no person shall have any further rights or claims against the corporate debtor/Resolution Applicant in this regard ``` WP(C) NO. 35261 OF 2023 ``` ``` 5 ``` ………………………………………………………………….. (xxviii) In summary, all the liabilities of the Corporate Debtor including all financial debts, operational debts or any other debt, whether claimed or unclaimed, contingent or otherwise, including but not limited to guarantees, sureties, etc, shall stand cancelled/extinguished with no further liability to the Resolution Applicant and the Corporate Debtor, in lieu of the consideration ascribed in this Resolution Plan and paid after the approval of the Resolution Plan in accordance with the terms hereof” 4. The petitioner has approached this court impugning Ext.P11 assessment order dated 12.09.2023 passed the Deputy Commissioner of the State Tax, Tax Payer Services Division, State Goods and Service Tax Department, Palakkad, by which the turn over tax for the assessment year 2018-2019 has been assessed at the 5% of the total sale at Rs. 69,71,495/- and 50% tax has been assessed on sale value of Rs.6,97,14,949/- and the total tax due has come to Rs.10,45,72,424/-. The petitioner has paid only Rs. 69,71,495/- and therefore the balance tax payable has been determined to be Rs.9,76,00,928/- on with interest rate has been levied from April 2019- September 2023 which comes to Rs.5,27,04,501/- and total tax and interest payable has been determined as Rs.15,03,05,429/-. The demand notice for the said amount has been issued in Ext.P11. 5.Learned Senior counsel for the petitioner has submitted that after the resolution plan is approved by the NCLT under Section 31(1) of the Code, 2016, the claims as provided in the resolution plan stand frozen and also that all claims including the statutory dues of the Central Government, State Government or any other local authority, if ``` WP(C) NO. 35261 OF 2023 ``` ``` 6 ``` not part of the resolution plan would get extinguished and no proceeding in respect of such dues for the period prior to the date on which the adjudicating authority grants its approval under Section 31 could be continued. 6. Learned counsel for the petitioner has placed reliance on the following judgments in **Ghanasyam Mishra and sons Private limited vs. Edelweiss Asst Reconstruction company Ltd. [(2021) 9 SCC 657], Ruchi Soya Industries Limited vs. Union of India and ors [2022 Livel Law (SC) 207]** . 7. Learned counsel for the petitioner submitted that the resolution plan was approved on 20.01.2020. The period covered by Ext.P9 is prior to the date of approval of the resolution plan, and therefore, Ext.P9 and the impugned notices for recovery of the tax are illegal and barred by Section 31 of the IB Code 2016. Learned counsel for the petitioner also submits though appeal is provided against Ext.P11 under Section 34 of the Act but as Ext.P11 order has been passed in clear violation of the provision of the IB Code, hence without jurisdiction. An order passed without jurisdiction or in other words where there is a jurisdictional error in the order of an authority or court is amenable to writ jurisdiction, despite the availability of the statutory alternative remedy. He further submits that the provisions of the IB Code have overriding effect on other laws as provided under Section 230 of the IB Code, which is couched in non-obstante clause and provides that notwithstanding anything inconsistent to in any other law. The ``` WP(C) NO. 35261 OF 2023 ``` ``` 7 ``` provisions of the Code shall have the effect over other laws. 8. Overlooking the legal provisions and the judgments of the Supreme Court and without giving the petitioner proper opportunity of being heard, the respondent has assessed the petitioner for the year 2018-2019 creating arbitrary demand of tax amounting to Rs. 9,76,00,928/- and interest amounting to Rs. 5,27,04,000/-. Learned counsel for the petitioner also submits that the respondent had assessed the petitioner under the KGST Act for the year 2017-2018 by the order dated 28.01.2022. The said order was challenged before this court by filing W.P© No. 12280/2022. The writ petition was admitted and an interim order against the recovery of the amount covered by the order dated 28.01.2022 has been granted by the order dated 05.01.2022. 9.Learned counsel for the petitioner submits that, though alternative remedy of statutory appeal is provided, however the petitioner is not barred to approach this court, inasmuch as the respondent does not have jurisdiction to proceed against the petitioner, in view of Ext.P2 order passed by the NCLT, the petitioner has filed this writ petition. 10.Adv. Jasmine M.M, the learned Government Pleader opposed the writ petition and submitted that the present writ petition challenging Ext.P11 order is not maintainable before this court, either in law or in facts. Various notices were issued to the petitioner for the production of books of account for the year 2018-2019 for finalising the ``` WP(C) NO. 35261 OF 2023 ``` assessment. However, inspite of repeated notices, the petitioner did not respond to the notices issued to it. In the absence books of account, the assessing authority had no option but to finalize the case as best judgment assessment relying on the materials available on the records. 11.Notices for the assessment year 2018-2019 under Section 17(3) of the KGST Act was issued intimating the discrepancies. The petitioner had filed reply to the said notice on 01.04.2023 but did not appear in person or filed any books of account as called for. The petitioner was only interested in prolonging the proceedings and instead of filing replies to the show cause notices, sought one after another opportunity to produce the documents, but did not submit the relevant documents. After the NCLT passed the order, the petitioner is claiming that it is not liable to pay any amount as tax, as the petitioner has been taken over under insolvency process after the resolution plan got approved by the NCLT. 12. On merit, it is submitted that, as no assessment orders were passed for the year 2017-2018 or subsequent thereto at the time of approval of resolution plan, the liability in pursuance to the assessment orders would not get extinguished, as they were not part of the resolution plan approved by the NCLT. Assessment for the year 20172018 was not finalised before the resolution plan was approved. The tax liability, if any was not able to be fixed prior to the approval date of the resolution plan. It would not have been possible for the assessing authority to intimate the non existing tax liability of the dealer to the ``` WP(C) NO. 35261 OF 2023 ``` ``` 9 ``` NCLT. The petitioner was only requested to produce the documents for the relevant year and on verification of the same, if it was proved that no discrepancy was there, the assessment could have been finalized at Nil demand. However, the petitioner did not comply with all the notices issued, and therefore, there was no other way but to proceed with the finalisation of the assessment order as per the records available with the respondents. 13. The assessment was completed on 12.09.2023, after giving enough opportunities and affording personal hearing. Notice in Form 50 was issued on 20.7.2019, 17.11.2020, 28.06.2021 and 20.11.2022. The pre-assessment notice dated 18.03.2023 was issued to the assessee for producing books of accounts with a personal hearing within fifteen days of receipt of the said notice. The petitioner had filed reply only on 01.04.2023 and 20.04.2023. The assessment was completed after considering the objections and granting opportunity of hearing. 14.The acceptance of return filed by the petitioner does not entitled them from not paying the turn over tax as prescribed in Section 5 of the KGST Act, 1961. The returns filed by the petitioner is ‘accepted’, was only on technical basis. However, it would not amount that the petitioner would not be succumbed to the rigour prescribed under Section 17(3) of the KGST Act, 1963. The petitioner did not submit the requisite details / data / documents, despite repeated demands to various notices. Whereas the petitioner was obliged to submit the record as per Rule 72 of KGST Act. ``` WP(C) NO. 35261 OF 2023 ``` ``` 10 ``` 15.The NCLT approved the resolution plan by the order dated 20.01.2020. The respondent was not prevented from issuing notices / proceeding for finalisation of the assessment order against the petitioner after 20.01.2020. The respondent was well within the right to issue notices / orders to the resolution professional pertaining to sales tax dues up to 19.01.2020, the penalty and interest accrued till the date of the order passed by the NCLT. The assessment was pertaining to the year 2018-2019, covering period from 01.04.2018 to 31.03.2019, and therefore the order issued for the assessment year 2018-2019 was not bared under Section 238 of IB Code. It is therefore submitted that the writ petition is to be dismissed. 16.The IB Code has been enacted with objective to bring the insolvency law under single enactment. Under the Scheme of the Code insolvency resolution process commences when a debt becomes due and is not paid. The provisions of the Code come into play the movement default is of rupees One Lakh or more. A Corporate insolvency resolution process may be sit in motion by the corporate debtor itself for the financial creditor or an operational creditor. Financial creditor and operational creditors are defined under Section 5(7) and Section 5(21) of the Code respectively. The procedure for setting in motion the resolution process plan by financial creditor or by corporate debtor is prescribed under Sections 7 and 8 of the Code. Section 30 of the Code provides that a person who is interested in reviving a corporate body as a going a concern may submit the ``` WP(C) NO. 35261 OF 2023 ``` ``` 11 ``` resolution plan to the resolution professional, which is prepared on the basis of an information memorandum. This plan must provide for payment of insolvency resolution process caused, management of the affairs of the corporate debtor after approval of the plan, implementation and supervision of the plan. It is only when such plan is approved by a board not less than 75% of the voting share of the financial creditors and the adjudicating authority is satisfied that the plan as approved meets the statutory requirement mentioned in Section 30, it may approves the plans, then it becomes binding on corporate debtors as well as the employees, members, creditors, guarantors and other stake holders. 17.The scheme as envisaged in the code is to make an attempt by divesting the existing management of its powers and vesting it in a professional agency, to continue the business of the corporate body as a going concern till the resolution plan is drawn up and approved. Section 238 of the IB Code has the overriding provision which provides that provision of the code shall have the effect, notwithstanding anything inconsistent therewith contained in any other law for the time being in force or any instrument having effect by virtue of any such law. 18. Considering the Scheme of the IB Code and its provision, any claim of any person including the statutory authority, if it is not part of the resolution plan approved by the NCLT, such claim gets extinguished on approval of the resolution plan. It is therefore, submitted that the impugned demand cannot be enforced against the petitioner, and ``` WP(C) NO. 35261 OF 2023 ``` ``` 12 ``` notices are liable to be quashed. 19.On behalf of the respondents it has been submitted that for the assessment year 2018-2019, a notice under Section 17(3) of the KGST Act was issued intimating the discrepancies. The petitioner had filed reply only on 01.04.2023, but did not appear in person nor submitted any books of accounts as called for. In respect of all notices issued prior to the preassessment notice, the petitioner sought adjournments time and again to produce the documents on the spacious ground of collecting and compiling all the documents. Several opportunities were granted to the petitioner to produce the documents, but despite giving undertakings to produce the documents, the petitioner did not produce the relevant documents. Now, the petitioner is claiming that he is not liable to pay as the company has been taken over under the resolution process after approval of the resolution plan by the new management. It is also the case of the petitioner that since the resolution plan got approved, all the ‘dues’ including the statutory dues owned to the Central Government, State Government or any local authority, if not part of the resolution plan would stand extinguished. The assessment was completed on 12.09.2023, after giving enough opportunities and personal hearing. Notices under Form 50 were issued on 20.07.2019, 17.11.2020, 28.06.2021 and 20.11.2022. The preassessment notice dated 18.03.2023, was issued to the petitioner for producing books of accounts with personal hearing within fifteen days of the receipt of the said notice, then the petitioner had filed reply only on 01.04.2023 and ``` WP(C) NO. 35261 OF 2023 ``` ``` 13 ``` 20.04.2023. The assessment was completed after considering the objections and granting the opportunity of being heard. 20.The resolution plan was approved by the NCLT by order dated 20.01.2020. The notices have been issued after the resolution plan was approved by the NCLT. The preassessment notice was issued to the resolution professional on 18.03.2023, there was no bar for undertaking the proceedings after the resolution plan got approved. It is further submitted that the respondents were entitled to issue notices and pass orders pertaining to the sale tax dues upto 19.01.2020, the penultimate date of the order passed by the NCLT approving the resolution plan. The assessment was pertaining to 2018-2019 covering the period from 01.04.2018 to 31.03.2019, and therefore, the assessment order for the assessment year 2018-2019 was well within the ambit of the powers of the authorities under the KGST Act, 1963 and the resolution plan approved on 20.01.2020 would not make the assessment void. ## 21.The learned Government Pleader has placed reliance on the judgment in the case of **State Tax Officer v. Rainbow papers limited [(2023) 9 SCC 545].** 22.The moot question which falls for consideration in the present case is that whether the assessment order in Ext.P11 is issued in violation of the provision of the IB Code, and therefore without jurisdiction. Learned counsel for the petitioner has relied on the judgment in the case of **Ghanasyam Mishra (supra)** in support of his submission. ``` WP(C) NO. 35261 OF 2023 ``` ``` 14 ``` The Supreme court in the said judgment has considered the following questions:- “(i)As to whether any creditor including the Central Government, State Government or any local authority is bound by the Resolution Plan once it is approved by an adjudicating authority under sub section (1) of Section 31 of the Insolvency and Bankruptcy Code, 2016 (hereinafter referred to as ‘IB Code’)? (ii) As to whether the amendment to Section 31 by Section 7 of Act 26 of 2019 is clarificatory/declaratory or substantive in nature? (iii) As to whether after approval of resolution plan by the Adjudicating Authority a creditor including the Central Government, State Government or any local authority is entitled to initiate any proceedings for recovery of any of the dues from the Corporate Debtor, which are not a part of the Resolution Plan approved by the adjudicating authority?” 23.In the aforesaid judgment, it has been held that once the adjudicating authority approves the resolution plan, it is binding all the corporate debtors as well as its employees, members, creditors, guarantors and other stake holders involve in the resolution plan. Moratorium order passed by the adjudicating authority shall seize to operate, once the adjudicating authority approves the resolution plan. 24.In view of the provision under Section 238 of IB Code, the provisions of the Code will have an overriding effect, if there is any inconsistency with any of the provisions of the law for the time being enforced or any instrument having effect by virtue of any law. The Supreme Court considered the amendment brought under Section 31 of the IB Code with effect from 16.08.2019 and held that after 16.08.2019 any debt in respect of the payment of dues arising under any law for the time being in force including the statutory dues owned of the Central Government, any State Government or any other local authority which does not formed part of the approved resolution shall stand ``` WP(C) NO. 35261 OF 2023 ``` extinguished. However, in respect of the dues for the period prior to 16.08.2018, wherein Section 7 states that , ‘petition shall be admitted’ and it has been held that the amendment is clarificatory in nature. Once such a resolution plan is approved by the adjudicating authority, all such claims and dues owned to Central Government, State Government or any other local authorities, including the tax authorities which were not part of the resolution plan shall stand extinguished. In Paragraph 95 of the said judgment, the questions had been answered as under:- “(i) That once are solution plan is duly approved by the Adjudicating Authority under subsection (1) of Section 31,theclaimsas provided in the resolution plan shall stand frozen and will be binding on the Corporate Debtor and its employees, members, creditors, including the Central Government, any State Government or any local authority, guarantors and other stakeholders. On the date of approval of resolution plan by the Adjudicating Authority ,all such claims, which are not a part of resolution plan, shall stand extinguished and no person will been titled to initiate or continue any proceedings in respect to a claim, which is not part ofthe resolution plan; (ii) 2019 amendment to Section31 of the I&B Code is clarificatory and declaratory in nature and therefore will be effective from the date on which I&B Code has come into effect; (iii) Consequently all the dues including the statutory dues owed to the Central Government, any State Government or any local authority, if not part of the resolution plan, shall stand extinguished and no proceedings in respect of such dues for the period prior to the date on which the Adjudicating Authority grants its approval under Section31could be continued.” 25.The similar views has been taken by Delhi High Court in its judgment in **Tata Steel Limited v. Deputy Commissioner of Income Tax [2023 SCC OnLine Delhi 6987] TUF Metallurgical Pvt Limited** **v. Union of India & Others** W.P (C) No. 10528 of 2022 judgment dated 12.12.2023. Bombay High Court Judgment in W.P (C) No. 2948 of 2021 in **Murli Industries Ltd., v. Assistant Commissioner of Income Tax** . ``` WP(C) NO. 35261 OF 2023 ``` ``` 16 ``` A Judgment of Orissa High Court in **Ferro Alloys Corporation Limited v. The State of Odisa and Others** in W.P(C) No. 20286 of 2020. 26.The Supreme court, however, in the case of the **State Tax Officer (supra)** while taking note of the judgment in case of **Ganshyam misra(supra)** while interpreting the provisions of Section 30(3) and 31(3) and another provisions of Sections 30 and 31 held that if the resolution plan is not in conformity with the statutory provisions of Section 31(2) of the IB Code, the said plan cannot be accepted under Section 30(2)(b) of the IB Code. There is an obligation on the resolution professional to examine each resolution plan received by him and confirm that such resolution plan provides the payment of dues of operational creditors as specified by the board, which shall not be less than the amount to be paid to such creditors. In the event of liquidation of corporate debtors under Section 53 of the IB Code, all the amount that would have been paid to such operational creditors, if the amount is to be distributed under the resolution plan have been distributed in accordance with the order of priority under Section 53(2), which ever is higher. 27.A resolution plan does not meets the requirement of Section 30(2) of IB Code could be invalid and not binding on the Central Government, State Government, Statutory authority any financial creditor or other creditor to whom in respect of dues arising under any law for the time being in force is void. Such a resolution plan would not bind the State when there are outstanding statutory dues of Corporate ``` WP(C) NO. 35261 OF 2023 ``` ``` 17 ``` debtors. ## Paragraphs 48, 52, 54 of the judgment in **State Tax Officer v.** ## **Rainbow papers limited (supra)** are extracted hereunder:-- “48. A resolution plan which does not meet the requirements of SubSection (2) of Section 30 of the IBC, would be invalid and not binding on the Central Government, any State Government, any statutory or other authority, any financial creditor, or other creditor to whom a debt in respect of dues arising under any law for the time being in force is owed. Such a resolution plan would not bind the State when there are outstanding statutory dues of a Corporate Debtor. 52. If the Resolution Plan ignores the statutory demands payable to any State Government or a legal authority, altogether, the Adjudicating Authority is bound to reject the Resolution Plan. 54. In our considered view, the Committee of Creditors, which might include financial institutions and other financial creditors, cannot secure their own dues at the cost of statutory dues owed to any Government or Governmental Authority or for that matter, any other dues.” 28. It has been further held that within meaning and definition under Section 3(30) of the IB Code, the Central Government, State Government and statutory authorities would be the secured creditor. The review of the said judgment was sought in R.P No. 1620/2023 and other connected review petitions, however, the Supreme court has dismissed the said review petitions by the judgment and order dated 31.10.2023. 29.In the present case, the moratorium under Section 14 of IB Code was issued by the NCLT on 01.11.2018 and resolution plan got approved on 20.01.2020. The appeal against the said order, approving the resolution plan got dismissed by the NCLT on 27.08.2020. The Supreme court dismissed the appeal only on 26.11.2020. The assessment ``` WP(C) NO. 35261 OF 2023 ``` ``` 18 ``` order involved in the present writ petition is in the assessment year 2018-2019. The NCLT had passed Ext.P1 order under Section 14 of the IB Code on 01.11.2018. However, the first notice in Form 50 was issued only on 20.07.2019. The resolution plan approved on 20.1.2020 did not take into account the assessment proceedings under the KGST Act for the assessment year 2018-2019. Before the resolution plan got approved, the liability was not crystallized under the provision of KGST Act, inasmuch as only notice was issued for the production of the documents, books of accounts and other relevant materials. In absence of crystallization of demand of turn over tax under KGST Act, such a demand could not have been the part of the resolution plan. The assessment proceedings had been completed by the impugned order dated 12.12.2023 in Ext.P11. The period for which the tax and liability had been determined under Section 173 of the KGST Act which is from 01.04.2018 – 31.03.2019. 30.The question which requires to be answered is that whether the resolution plan which does not take into consideration the statutory liability under the KGST Act for the period from 01.04.2018 – 31.03.2019, does it meet the requirement of Section 30(2), and if it is does not meet the requirement of Section 30(2). Whether it would be binding on the Central Government, State Government, or any statutory authority. 31.In the present case, the resolution plan has ignored the statutory demand as no demand of KGST when the resolution plan was ``` WP(C) NO. 35261 OF 2023 ``` ``` 19 ``` approved on 20.1.2020. Whether resolution plan is in accordance with the provision of Section 30(2) of the Code or not is required to be examined the assessing authority. There is no such finding recorded by the assessing authority in the impugned assessment order. 32.In view thereof, the impugned assessment order in Ext.P11 is set aside. The matter is remitted back to the file of the State Tax Officer to examine whether the resolution plan is in accordance with the provision of Section 30(2) of the Code and then pass a fresh order in accordance with the law. The petitioner is directed to appear before the State Tax Officer with all the relevant documents, materials on 05.03.2024. The assessing authority shall pass fresh order expeditiously. **Sd/-** **DINESH KUMAR SINGH JUDGE** **SJ** ``` WP(C) NO. 35261 OF 2023 ``` ``` 20 ``` ## **`APPENDIX OF WP(C) 35261/2023`** ``` PETITIONER EXHIBITS EXHIBIT P1COPY OF ORDER DATED 1-11-2018 OF THE NATIONAL COMPANY LAW TRIBUNAL, CHENNAI. EXHIBIT P2COPY ORDER DATED 20-01-2020 OF THE NATIONAL COMPANY LAW TRIBUNAL, CHENNAI. EXHIBIT P3COPY OF THE RESOLUTION PLAN DATED 17-07- 2019 AS APPROVED BY THE NATIONAL COMPANY LAW TRIBUNAL, CHENNAI. EXHIBIT P4COPY OF THE JUDGMENT DATED 27-08-2020 ISSUED BY THE NCLAT. EXHIBIT P5COPY OF ORDER DATED 26-11-2020 OF THE HON'BLE SUPREME COURT IN C.A. NO.3283 OF 2020. EXHIBIT P6COPY OF THE LEDGER ACCOUNT MAINTAINED BY KSBC FOR THE PERIOD FROM 1-04-2017 TO 31- 03-2019 IN RESPECT OF THE PETITIONER. EXHIBIT P7COPY OF APPLICATION DATED 2-07-2020 FILED BY THE RESOLUTION PROFESSIONAL BEFORE THE NCLT. EXHIBIT P8COPY OF ORDER DATED 6-07-2021 ISSUED BY THE NCLT EXHIBIT P9COPY OF NOTICE DATED 18-03-2023 ISSUED BY THE RESPONDENT FOR THE YEAR 2018-2019. EXHIBIT P10COPY OF FIRST REPLY DATED 01-04-2023 FILED BY THE PETITIONER TO EXT.P9 NOTICE. EXHIBIT P10(A)COPY OF SECOND REPLY DATED 20-04-2023 FILED BY THE PETITIONER TO EXT.P9 NOTICE. EXHIBIT P11COPY OF ASSESSMENT ORDER DATED 12-09-2023 ISSUED BY THE RESPONDENT FOR THE YEAR 2018-19 EXHIBIT P12COPY OF THE ORDER DATED 05-04-2022 IN W.P.(C) NO. 12280/2022. ``` - **`RESPONDENT EXHIBITS EXHIBIT R1(A) TRUE COPY OF THE NOTICE DATED: 20.07.2019 EXHIBIT R1(B) TRUE COPY OF THE NOTICE DATED: 17.11.2020 EXHIBIT R1(C) TRUE COPY OF THE NOTICE DATED: 28.06.2021 EXHIBIT R1(D) TRUE COPY OF THE NOTICE DATED: 20.11.2022 PETITIONER ANNEXURES ANNEXURE-I A COPY OF RESOLUTION OF THE BOARD OF DIRECTORS AT THEIR MEETING HELD ON 28-032022.`**