MAHAVIR ROADS & INFRASTRUCTURE,MUMBAI vs. DCIT CIRCLE-3(4), MUMBAI

The aforesaid appeals have been filed by the assessee against the separate impugned order of even date 22.11.2018, passed by Ld. CIT (Appeals)-51, Mumbai for the quantum appeal of

Before us, Ld. Counsel for the assessee stated that a petition under the Insolvency & Bankruptcy Code, 2016 (IBC) has been filed against the assessee company which has been admitted by the National Company Law Tribunal, Mumbai (NCLT) vide order dated 21.02.2019 in Appeal CP (IB) 2300/NCLT/MB/2018. He also informed that process of Corporate Insolvency Resolution Process (CIRP) is still pending. A resolution professional has been appointed by NCLT, Mumbai and has granted his consent vide letter of authority dated 7th October 2021.

Ld. Counsel further submitted that now in view of section 14(1)(a) of IBC, there is a moratorium for 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 Penal or other authority. Thus, during the moratorium period, no proceedings can be continued including the income tax proceedings before this Tribunal.

We find that the present appeals have been filed by the assessee against the order of Ld. CIT (A) whereby demands have been created in respect of the additions sustained /enhanced by the Ld. CIT (A). Once NCLT has passed the order in pursuance of petition filed u/s 7 of IBC for initiating insolvency process against the corporate debtor, i.e., the assessee company and there is moratorium imposed u/s 14 of IBC, then all the proceedings stands in abeyance. The relevant portion of the order reads as under:- a) 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 other authority; b) transferring, encumbering, alienating or disposing of by the corporate debtor any of its assets or any legal right or beneficial interest therein; c) any action to foreclose, recover or enforce any security interest created by the corporate debtor in respect of its property including any action under the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002; d) the recovery of any property by an owner or lessor where such property is occupied by or in possession of the corporate debtor.

Thus, in view of the above, no proceedings can be initiated against the corporate debtor, that is, assessee company including 5 I.T.A. No. 646 to 651/Mum/2019 Mahavir Roads & Infrastructure Pvt. Ltd. the present proceedings before this tribunal, or the income tax proceedings and recovery of demand or giving effect of any order. It is well settled now that, IBC has overriding affect on all the acts including Income Tax Act which has been specifically provided u/s 178(6) of the I.T. Act as amended w.e.f. 01.11.2016.

Accordingly, the appeal filed by the assessee in the present circumstances, cannot be proceeded with, as revenue has also not sought any permission by the committee of creditors. Till the completion of moratorium period or upon the revival of corporate debtor as per the resolution plan approved by the adjudicating authority, the appeals filed by the assessee are treated as dismissed in limini. However, liberty is given to the parties to revive /restitute all the aforesaid appeals after the moratorium period expires or as approved by the adjudicating authority.