BINANI CEMENT LTD.,MUMBAI V. D.C.I.T., CENTRAL CIRCLE-XXVIII, KOLKATA, KOLKATA

ITA 1726/KOL/2014

AI Insights

The case involves multiple appeals by both the assessee, UltraTech Nathdwara Cement Ltd. (formerly Binani Cement Ltd.), and the Revenue against the orders of the Commissioner of Income Tax (Appeals) concerning various assessment years. The appeals were related to issues such as the charging of interest on book profits, disallowance of deductions under section 80IA, and adjustments related to international transactions and corporate guarantees. The key legal development was the approval of a resolution plan under the IBC, which led to the change of control and name of the assessee company and rendered the appeals infructuous as per the judicial precedents cited.

• Counselvise Citation: [2025] 140 COUNSELVISE.COM (IT) 396889 (ITAT-KOLKATA)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-05-2025
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: C
• Assessment Year: 2008-2009
• Other Referred Cases: CIT vs. Kwality Biscuits Ltd, Snowchem India Ltd vs. DCIT, Natural Gems Ltd vs. CIT, Binani Industries Ltd vs. CIT, Krishnaswamy S.PD. and Another vs UOI & others, Charbhuja Industries P. Ltd, Rockline Developers P. Ltd, Khandelwal Laboratories Pvt. Ltd. vs. CIT, Maruti Koatsu Cylinders Ltd. v. Deputy Commissioner of Income-tax, Asian Colour Coated Ispat Ltd. v. Asstt. Commissioner of Income-tax, Uttam Value Steels Ltd. v. Assistant Commissioner of Income-tax, Ghanshyam Mishra and Sons Private Limited v. Edelweiss Asset Reconstruction Company Limited, Kohinoor Steel (P.) Ltd. v. Income- tax Officer
• Laws Referred To: Income Tax Act, 1961
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Keywords: Set aside; Transfer pricing; International transaction; Depreciation; Additional depreciation; Principle of natural justice; Wholly owned subsidiary; Scheme of amalgamation; Bogus
• Section: 148; 154; 234B; 115JB; 32(1)(iia)

Judgement Text

"आयकर अपीलीय अधिकरण कोलकाता 'सी' पीठ, कोलकाता में IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA ‘C’ BENCH, KOLKATA श्री जॉजज माथान, न्याधयक सदस्य एवं श्री राक ेश धमश्रा, लेखा सदस्य क े समक्ष Before SHRI GEORGE MATHAN, JUDICIAL MEMBER & SHRI RAKESH MISHRA, ACCOUNTANT MEMBER I.T.A. Nos.: 1726/KOL/2014 & 152/KOL/2018 Assessment Years: 2008-09 & 2013-14 M/s. Ultra Tech Nathdwara Cement Ltd. (Earlier known as M/s. Binani Cement Ltd.) Now UltraTech Cement Limited Vs. D.C.I.T., Central Circle- XXVIII, Kolkata Now CC- 2(2), Kolkata (Appellant) (Respondent) PAN: AAACL6442L I.T.A. Nos.: 611/KOL/2015 & 470/KOL/2018 Assessment Years: 2010-11 & 2013-14 D.C.I.T., Central Circle-XXVIII, Kolkata Now CC-2(2), Kolkata Vs. M/s. Ultra Tech Nathdwara Cement Ltd. (Earlier known as M/s. Binani Cement Ltd.) Now UltraTech Cement Limited (Appellant) (Respondent) PAN: AAACL6442L Appearances: Assessee represented by : Shreya Loyalka, Adv. Department represented by : Bonnie Debbarma, Addl. CIT, Sr. DR. Date of concluding the hearing : 26-March-2025 Date of pronouncing the order : 28-May-2025 Page | 2 I.T.A. Nos.: 1726/KOL/2014 & 152/KOL/2018 Assessment Years: 2008-09 & 2013-14 I.T.A. Nos.: 611/KOL/2015 & 470/KOL/2018 Assessment Years: 2010-11 & 2013-14 M/s. UltraTech Nathdwara Cement Ltd. (Earlier known as M/s. Binani Cement Ltd.) Now UltraTech Cement Limited. ORDER PER BENCH: These four appeals filed by the assessee and the Revenue are against the separate orders of the Commissioner of Income Tax (Appeals) [hereinafter referred to as Ld. 'CIT(A)'] passed u/s 250 of the Income Tax Act, 1961 (hereinafter referred to as ‘the Act’) for AYs 2008- 09, 2010-11 and cross appeals for AY 2013-14. 2. The assessee has raised the following grounds of appeal before the Tribunal: I. ITA No. 1726/KOL/2014; A.Y. 2008-09: “1. On the facts and in the circumstances of the case, the learned CIT(A)- Central I erred in confirming the action of the AO in charging of legally disputable interest u/s. 234B & 234C of the IT Act, 1961(\"the Act\") on Book Profits u/s 115JB of the Act as a mistake apparent on record rectifiable u/s 154 of the Act. 2. On the facts and in the circumstances of the case, the CIT(A)- Central I erred in confirming the levy of interest u/s. 234B of the Act amounting to Rs.1,01,25,015 and u/s 234C of the Act amounting to Rs. 1,28,95804 totalling to Rs.2,30,20,819 on Book Profits u/s 115JB of the Act. 2.1. On the facts and in the circumstances of the case, the CIT(A) erred in not appreciating the fact that the decision of the Hon'ble Supreme Court in the case of Rolta India Ltd was pronounced much later i.e. on 07/01/2011 than after the financial year i.e. 2007-08 during which the advances taxes were to be paid. The settled law, by the Hon'ble Supreme Court, various High Courts and the ITAT, Kolkatta in the appellant's own case, during the relevant financial year was that no Interest u/s 234B & 234C was chargeable on Book Profits u/s 115JB. The relevant decisions are as under- a. Decision of the Supreme Court in the case of CIT vs. Kwality Biscuits Ltd (284 ITR 434) Page | 3 I.T.A. Nos.: 1726/KOL/2014 & 152/KOL/2018 Assessment Years: 2008-09 & 2013-14 I.T.A. Nos.: 611/KOL/2015 & 470/KOL/2018 Assessment Years: 2010-11 & 2013-14 M/s. UltraTech Nathdwara Cement Ltd. (Earlier known as M/s. Binani Cement Ltd.) Now UltraTech Cement Limited. b. Decision of the Bombay High Court in the case of Snowchem India Ltd vs. DCIT (313 ITR 170) c. Decision of the Bombay High Court in the case of CIT vs. Natural Gems Ltd. (327 ITR 269) d. Decision of the Calcutta High Court in the case of Binani Industries Ltd vs. CIT (329 ITR 323) 2.2. On the facts and in the circumstances of the case, the CIT(A) erred in not considering the legal submission of the appellant relying on the maxim known as \"Lex Non Cogit ad impossibilia\" which is interpreted as \"one is not required under the law to perform what is impossible\". This legal maxim has been upheld by various courts including the Hon'ble Supreme Court in Krishnaswamy S.PD. and Another vs UOI & others [281 ITR 305]. 2.3. On the facts and circumstances of the case, the learned CIT(A) erred in not following the most recent decisions of ITAT, Mumbai in the case of Charbhuja Industries P. Ltd [31 ITR (Trib.) 89], Rockline Developers P. Ltd [31 ITR (Trib.) 123] and Khandelwal Laboratories Pvt. Ltd. (ITA No. 413- 415/M/11) wherein in identical facts and circumstances the Tribunal has decided the issue in favour of the respective appellants. 3. The appellant craves leave to add, to alter or amend the Grounds of Appeal on or before the hearing of this appeal.” II. ITA No. 152/KOL/2018; A.Y. 2013-14: “1. On the facts and circumstances of the case and in law, the Ld. CIT(A) erred in confirming the action of the AO of not allowing deduction of Rs. 69,96,85,142/- u/s 801A of the Act as per the order passed u/s 92CA(3) dated 31.10.2016. 1.1 On the facts and circumstances of the case and in law, the Ld. CIT(A) further erred in upholding that a loss of Rs.42,80,71,238/- be adjusted against future profits of the eligible business for the purpose of determination of deduction u/s 801A of the Act. 2. On the facts and circumstances of the case and in law, the CIT(A) erred in confirming that the transaction relating to purchase of machinery from Sri Maa Sarda Fabrication Engineering Pvt. Ltd. amounting to Rs. 2,86,51,800/- is bogus. Page | 4 I.T.A. Nos.: 1726/KOL/2014 & 152/KOL/2018 Assessment Years: 2008-09 & 2013-14 I.T.A. Nos.: 611/KOL/2015 & 470/KOL/2018 Assessment Years: 2010-11 & 2013-14 M/s. UltraTech Nathdwara Cement Ltd. (Earlier known as M/s. Binani Cement Ltd.) Now UltraTech Cement Limited. 2.1 On the facts and circumstances of the case and in law, the CIT(A) erred consequently in confirming the disallowance of sum of Rs.22,36,658/-being depreciation claimed on Plant and Machinery purchased from Sri Maa Sarda Fabrication Engineering Pvt. Ltd. 2.2 On the facts and circumstances of the case and in law, the CIT(A) erred in upholding the AO's conclusion arrived at by relying on impunged statement of the third party namely Mr Vikrant Kayan without making available a copy of the said statement to the appellant and also without giving an opportunity to cross examine the said person though requested for, thereby violating the principles of natural justice. Reliance in this respect is placed in the case of Andamann Timber Industries vs CCE-281 CTR 241 (SC). 2.3 The CIT(A) further erred in not appreciating that Mr. Vikrant Kayan had nowhere stated his involvement in the purchases made by the appellant from Sri Maa Sarda Fabrication Engineering Pvt. Ltd. Therefore, his statement is not relevant in the context of purchases made by the appellant from the said party. 3. On the facts and circumstances of the case and in law, the Ld. CIT(A) erred in confirming disallowance of Rs.22,06,775/- being depreciation admissible on machinery purchased from M/s. Accurate Electromech Fabrication Pvt. Ltd. during the AY 2009-10, on the ground that the transactions was non genuine. 4. On the facts and circumstances of the case and in law, the learned CIT(A) erred in confirming of charging interest u/s 234B of the Act. 5. On the facts and circumstances of the case and in law, the learned CIT(A) erred in confirming the action of AO in initiating penalty proceeding u/s 271(1) (c) of the Act. 6. The appellant craves leave of your Honour to add to, alter, amend and/or delete all or any of the foregoing grounds of appeal on or before the date of hearing.” III. ITA No. 611/KOL/2015; ; A.Y. 2010-11: (1) That on the facts and circumstances of the case, the Ld. CIT(A) has erred in deleting the addition of Rs.4,22,98,633/- under the head additional depreciation u/s 32(1)(iia) of the IT Act in respect of the investment made in plant & machinery of Captive Power Plant, CPP-III without appreciating that the deduction was not allowable for the A.Y. 2010-11. Page | 5 I.T.A. Nos.: 1726/KOL/2014 & 152/KOL/2018 Assessment Years: 2008-09 & 2013-14 I.T.A. Nos.: 611/KOL/2015 & 470/KOL/2018 Assessment Years: 2010-11 & 2013-14 M/s. UltraTech Nathdwara Cement Ltd. (Earlier known as M/s. Binani Cement Ltd.) Now UltraTech Cement Limited. (2) That on the facts and circumstances of the case, the Ld. CIT(A) is not justified in directing to adopt the sale price (market value) of units of electricity at the rate of Rs.6.50/- as against Rs.4.54/- adopted by the AO, thereby, allowing excess deduction u/s 801A of the IT Act. (3) That on the facts and circumstances of the case, the Ld. CIT(A) erred in allowing the assessee to allot interest component of Rs.7,602/- only in respect of its income & expenditure account of power generation unit as against Rs.4,47,44,027/- allotted by the AO, thereby, allowing excess deduction u/s 801A of the IT Act. (4) The appellant craves leave to add, alter, modify, amend and/or delete all or any of the foregoing Grounds of Appeal on or during the hearing.” IV. ITA No. 470/KOL/2018; A.Y. 2013-14: “1. That on the facts and the circumstances of the case and in law, the Ld. CIT(A) has erred in deleting the addition made by the AO/ TPO amounting to Rs.6,83,00,000/- for international transaction in respect to the corporate guarantee to its AE 2. That on the facts and in the circumstances of the case, the Ld. CIT(A) has erred in ignoring that the corporate guarantee extended by the assessee- company to its AE is an international transaction as per explanation to section 928, and accordingly an arm's length charge should be imputed in relation to the same. 3. That on facts and in the circumstances of the case, the Ld. CIT(A) has erred in categorizing the corporate guarantee as shareholder service not warranting any charge. 4. That on the facts and in the circumstances of the case, the Ld. CIT(A) has erred both in law & in facts in ignoring that Corporate Guarantee is an international transaction as per provisions of the Income Tax Act, 1961. 5. That on the facts and in the circumstances of the case, the Ld. CIT(A) has erred in not appreciating the fact that the corporate guarantee has provided benefit to the AE and the assessee should charge a fee for its services in the form of guarantee charge. 6. That on the facts and in the circumstances of the case, the Ld. CIT(A) has erred in not appreciating the fact that the guarantee in the form of support agreement, as given to the bank. Page | 6 I.T.A. Nos.: 1726/KOL/2014 & 152/KOL/2018 Assessment Years: 2008-09 & 2013-14 I.T.A. Nos.: 611/KOL/2015 & 470/KOL/2018 Assessment Years: 2010-11 & 2013-14 M/s. UltraTech Nathdwara Cement Ltd. (Earlier known as M/s. Binani Cement Ltd.) Now UltraTech Cement Limited. 7. That on the facts and in the circumstances of the case, the Ld. CIT(A) has erred in not appreciating that by providing corporate guarantee, subsidiary's creditworthiness increases and hence postulates provision of services by holding company. 8. That on the facts and in the circumstances of the case, the Ld. CIT(A) has erred in not appreciating that where higher credit rating of AE is due to a guarantee by another group member, such association positively enhances the profit making potential of that AE. 9. That on the facts and in the circumstances of the case, the Ld. CIT(A) has erred in not appreciating that there was a clear benefit accrued to the AEs by the guarantee provided accepted even by the assessee and when such benefit was passed on by the assessee to the said AEs, guarantee commission should have been charged at arm's length price. 10. On the facts and the circumstances of the case and in law, the Ld. CIT(A) has erred in reducing the adjustment made by the AO/ TPO amounting to Rs. 69,96,85,142/- for specified domestic transaction with respect to transfer of power from eligible units of the assessee to its other manufacturing units. 11. On the facts and the circumstances of the case and in law, the Ld. CIT(A) had failed to appreciate the analysis undertaken by the TPO while concluding the said transaction were not at the arm's length. 12. On the facts and the circumstances of the case and in law, the Ld. CIT(A) had erred in considering the CPPs unit on stand alone basis in contravention of the provision of the section 80-IA(5) of the Act. 13. That the appellant craves leave to add to and/or alter, amend, modify or rescind the grounds hereinabove before or hearing of this appeal.” 3. The assessee vide letter dated07.06.2024 has mentioned as under: “Sub. Refiling of an appeal of UltraTech Nathdwara Cement Limited (UNCL) in the name of UltraTech Cement Limited (UTCL) Ref.: Appeal No. 152/Kol/2018 for AY 2013-14, Binani Cement Limited Vs Dy. Commissioner of Income Tax, Central Circle-2(2), Kolkata Page | 7 I.T.A. Nos.: 1726/KOL/2014 & 152/KOL/2018 Assessment Years: 2008-09 & 2013-14 I.T.A. Nos.: 611/KOL/2015 & 470/KOL/2018 Assessment Years: 2010-11 & 2013-14 M/s. UltraTech Nathdwara Cement Ltd. (Earlier known as M/s. Binani Cement Ltd.) Now UltraTech Cement Limited. We refer to the captioned Appeal pending before Bench C for hearing. We would like to submit as under. 1. The impugned appeal was filed by Binani Cement Limited (BCL) in the year 2018. 2. The Hon'ble National Company Law Appellate Tribunal (NCLAT) vide its detailed order dated 14-11-2018 approved the Resolution Plan submitted by UltraTech Cement Limited (UltraTech) under Corporate Insolvency Resolution Process. 3 In accordance with the approved Resolution Plan, UltraTech has taken control of BCL on 20-11-2018 (\"Transfer Date\") and BCL became a wholly owned subsidiary of UltraTech. In view of this, the name of the company has been changed to UltraTech Nathdwara Cement Limited (UNCL) with effect from 13-12-2018. 4 Pursuant to the change in the name of the appellant Company, revised appeal has been filed by UNCL vide letter dated 07-10-2019. Copy of the said letter is attached herewith as Annexure -1. 5. Now UNCL has been amalgamated with UltraTech w.e.f. 20-04-2024 under the Scheme of Amalgamation approved by Mumbai Bench and Kolkata Bench of National Company Law The Tribunal (NCLT). The appointed date of the Scheme is 01-04-2023. Copy of the order passed by Hon'ble Mumbai Bench and Hon'ble Kolkata Bench of NCLT are attached as Annexure - 2(a) and Annexure-2(b) respectively. 6. Pursuant to the aforesaid Scheme of Amalgamation, we have to file the revised Form 36 in the name of UltraTech Cement Limited. Revised Form 36 in original duly signed is enclosed as Annexure-3. 7. We further wish to inform you that all the future communication may be sent to the below address consequent to the amalgamation of UNCL with UltraTech: UltraTech Cement Limited Ahura Centre, B-Wing, 2nd Floor, Mahakali Caves Road, Amdheri (E), Mumbai - 400093 Maharashtra We trust your honour will find the same in order. Page | 8 I.T.A. Nos.: 1726/KOL/2014 & 152/KOL/2018 Assessment Years: 2008-09 & 2013-14 I.T.A. Nos.: 611/KOL/2015 & 470/KOL/2018 Assessment Years: 2010-11 & 2013-14 M/s. UltraTech Nathdwara Cement Ltd. (Earlier known as M/s. Binani Cement Ltd.) Now UltraTech Cement Limited. Thanking you. Yours faithfully, For UltraTech Cement Limited (Amalgamated Company of UNCL) Jitesh Jhankharia Vice President, Taxation Encl.: As above. CC: DR, C Bench, ITAT, Kolkata” 4. The Ld. AR, at the outset stated that the resolution plan as stated in the above letter had been approved on account of which the name of the company had changed to UltraTech Nathdwara Cement Limited (UNCL) and the registered office had shifted to Mumbai post amalgamation of the successful resolution applicant with UltraTech w.e.f. 20.04.2024 under the scheme of amalgamation approved by Mumbai Bench and Kolkata Bench of the National Company Law Tribunal (NCLT). The assessee had earlier moved an application for transfer of appeals which has been withdrawn. It was submitted that the appeals as well as the demands pertain to the pre-CIRP period, the effective date of approval of resolution plan being 14.11.2018. It was therefore, submitted that the appeals had become infructuous. 5. We have considered the submission made by the Ld. AR as well as the Ld. DR. It has been held in the case of Maruti Koatsu Cylinders Ltd. v. Deputy Commissioner of Income-tax [2024] 165 taxmann.com 332 (Gujarat) that when the NCLT has approved the application filed under section 13(6) of IBC, 2016 and resolution plan submitted by the applicant was approved, the Assessing Officer would Page | 9 I.T.A. Nos.: 1726/KOL/2014 & 152/KOL/2018 Assessment Years: 2008-09 & 2013-14 I.T.A. Nos.: 611/KOL/2015 & 470/KOL/2018 Assessment Years: 2010-11 & 2013-14 M/s. UltraTech Nathdwara Cement Ltd. (Earlier known as M/s. Binani Cement Ltd.) Now UltraTech Cement Limited. not have any jurisdiction to reopen the assessment with regard to the assessment year 2019-20. [Para 6] 6. It has also been held in Asian Colour Coated Ispat Ltd. v. Asstt. Commissioner of Income-tax. [2024] 165 taxmann.com 641 (Delhi) as under: 21. Suffice it to observe that it is not the case of the respondents that the NCLT has been moved for the purposes of recall of its order according approval to the Resolution Plan. It is also not their case that the Resolution Plan insofar as it rings in a closure in respect of any claim or demand that may be said to exist in respect of the corporate debtor is liable to be set aside. In fact, the respondents do not appear to have questioned the validity of the Resolution Plan at any stage. We thus find ourselves unable to appreciate how the decision in Rainbow Papers could come to their aid. 22. Viewed in the aforesaid light, it is manifest that it is the view taken by this Court in M Tech Developers, Sree Metaliks and Rishi Ganga Power Corporation which would prevail and lead us to the inevitable conclusion that the reassessment action would not sustain. 23. We, accordingly, allow the instant writ petition and quash the impugned notice under Section 148 for A.Y. 2014-15 dated 31 March 2021. 7. In Uttam Value Steels Ltd. v. Assistant Commissioner of Income-tax [2024] 166 taxmann.com 493 (Bombay) it has also been held as under: ■ Even a plain reading of section 31(1) would show that once the NCLT approves the resolution plan, it would be binding on, among others, the Central Government and its agencies in respect of payment of any statutory dues arising under any law for the time being in force. It is now trite law that the effect of resolution of a corporate debtor is that the terms of resolution bind tax authorities and their enforcement actions – a position in law declared in numerous judgments of the Supreme Court. While it is not necessary to extract from a long line of decisions of the Supreme Court to note the effect of approval of the resolution plan under Section 31 of the IBC, as rightly pleaded by the Petitioner-corporate debtor the judgment in Ghanshyam Mishra and Sons Private Limited v. Edelweiss Asset Reconstruction Company Limited (Ghanshyam Mishra) comprehensively summaries the import of various judgments on the point. [Para 12] Page | 10 I.T.A. Nos.: 1726/KOL/2014 & 152/KOL/2018 Assessment Years: 2008-09 & 2013-14 I.T.A. Nos.: 611/KOL/2015 & 470/KOL/2018 Assessment Years: 2010-11 & 2013-14 M/s. UltraTech Nathdwara Cement Ltd. (Earlier known as M/s. Binani Cement Ltd.) Now UltraTech Cement Limited. ■ It is therefore crystal clear that once a resolution plan is duly approved under section 31(1), the debts as provided for in the resolution plan alone shall remain payable and such position shall be binding on, among others, the Central Government and various authorities, including tax authorities. All dues which are not part of the resolution plan would stand extinguished and no person would be entitled to initiate or continue any proceedings in respect of any claim for any such due. No proceedings in respect of any dues relating to the period prior to the approval of the resolution plan can be continued or initiated. [Para 15] ■ In this clear view of the matter, there can be no manner of doubt that the Impugned Proceedings initiated by the revenue and sought to be defended as if they relate to liabilities that somehow emerge after the CIRP, are wholly misconceived and untenable. The resolution plan, upon its approval, brought a quietus to all claims pursued or capable of being pursued by the revenue against the petitioner for any operation prior to the CIRP. The stance of the revenue in the reply affidavit, namely, that if the tax claim amount had not been crystallised, would be future dues and not past dues, is totally untenable. Ghanshyam Mishra and Sons Private Limited v. Edelweiss Asset Reconstruction Company Limited 2021 SCC OnLine SC 313 makes it clear that the continuation of existing proceedings and the initiation of new proceedings, as they relate to operations prior to the CIRP, are totally prohibited after the approval of the resolution plan. Consequently, nothing would survive insofar as the Impugned Proceedings relate to the petitioner. [Para 16] ■ The Ghanshyam Mishra and Sons Private Limited (supra) squarely applies to the facts of the instant case, and necessitates quashing the Impugned Proceedings. Evidently and admittedly, the tax proceedings against the VJ Group pre-date the CIRP and no matter when the liabilities are purported to get crystallised, even if they are allowed to get crystallised, they would relate to the period prior to the approval of the resolution plan of the petitioner, and therefore stand extinguished. This is why the Supreme Court has clearly ruled that initiation and continuation of proceedings relating to the period prior to the approval of the resolution plan cannot be indulged in. Upon completion of the CIRP, the petitioner has completely changed hands and has begun on a clean slate under new ownership and management. [Para 18] {emphasis supplied} 8. Further, the Coordinate Bench of the Tribunal in the ITAT KOLKATA BENCH 'C' in the case of Kohinoor Steel (P.) Ltd. v. Income- tax Officer [2024] 159 taxmann.com 571 (Kolkata - Trib.) have also held as under: ■ It was observed that the operational creditor of assessee has filed the petition Page | 11 I.T.A. Nos.: 1726/KOL/2014 & 152/KOL/2018 Assessment Years: 2008-09 & 2013-14 I.T.A. Nos.: 611/KOL/2015 & 470/KOL/2018 Assessment Years: 2010-11 & 2013-14 M/s. UltraTech Nathdwara Cement Ltd. (Earlier known as M/s. Binani Cement Ltd.) Now UltraTech Cement Limited. before the NCLT and as per the assessee's own case for its CRIP as per rule 4 of Insolvency & Bankruptcy Code (IBC), 2016 no proceedings can continue against the corporate debtor i.e. the assessee after the order of the NCLT. In view of this and drawing further force from the order of co-ordinate bench of Tribunal in the case of Palogix Infrastructure (P.) Ltd. v. Asstt. CIT [2022] 135 taxmann.com 73/193 ITD 329 (Kol. - Trib.) 2021 (10) TMI 1255-ITAT - KOLKATA, dated 27-10-2021 all the appeals before the Tribunal filed by the assessee is to be dismissed as infructuous. [Para 9] ■ It is pertinent to note that as per the provisions of section 14 of the IBC Code 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 shall be prohibited during the moratorium period. [Para 9.1] ■ Further, it is found that section 31 of the IBC relates to approval of the resolution plan and in terms of section 31(1) of the IBC on approval, the resolution plan becomes binding on corporate debtor and its employees, members, creditors including the Central Government, any State Government or any local authority to whom a debt in respect of payment of dues arising under any law for the time being in force. The Supreme Court in the matter of Ghanashyam Mishra & Sons (P.) Ltd. v. Edelweis Asset Reconstruction Co. Ltd. [2021] 126 taxmann.com 132/166 SCL 237 (SC) [2021] 9 SCC 657 has considered the scope of section 31 (1) of the IBC and has held that once the resolution plan is sanctioned under section 31(1) of the IBC, the claims provided in the plan will stand frozen and all such claims which are not part of the plan will stand extinguished. [Para 9.2] ■ The law is well settled that on the approval of the resolution plan in terms of section 31 of the IBC, the dues including the statutory dues of the Government or local authority, if not part of the resolution plan, gets extinguished and no proceedings in respect thereof for a period prior to the date of approval under section 31 would continue. The decision of the Calcutta High Court in West Bengal State Electricity Distribution Company Ltd. v. Sri Vasavi Industries Ltd. [2022] 143 taxmann.com 96/174 SCL 199 2022 (7) TMI 580 - CALCUTTA HIGH COURT makes it clear that any claim not made during the course of CIRP and before approval of resolution plan shall automatically be extinguished and the corporate debtor is deemed to start its operations with a clean slate after the resolution plan is approved. [Para 9.5] ■ The provisions of section 238 of the IBC shall have 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. It has been consistently held by the Supreme Court that the IBC is a complete Code in itself and in view of the provisions of section 238 of the IBC, the provisions of the IBC would prevail notwithstanding anything inconsistent therewith contained in Page | 12 I.T.A. Nos.: 1726/KOL/2014 & 152/KOL/2018 Assessment Years: 2008-09 & 2013-14 I.T.A. Nos.: 611/KOL/2015 & 470/KOL/2018 Assessment Years: 2010-11 & 2013-14 M/s. UltraTech Nathdwara Cement Ltd. (Earlier known as M/s. Binani Cement Ltd.) Now UltraTech Cement Limited. any other law for the time being in force. [Para 9.7] ■ As per section 31 of the Code, resolution plan as and when approved by the Adjudicating Authority shall be binding on the corporate debtor and its employees, members, creditors, guarantors, and other stakeholders involved in the resolution plan. Thus, this will prevent State authorities and Regulatory bodies including Direct & Indirect Tax Departments from questioning the resolution plan. Thus, in view of the above, no proceedings can be initiated against the corporate debtor, that is, assessee-company including income tax proceedings and recovery of demand or giving effect of any order. It is well settled now that IBC has an overriding effect on all the acts including Income- tax Act which has been specifically provided under section 178(6) as amended with effect from 1-11-2016. [Para 9.8] ■ A reading of the provisions under sections 13 and 14 of the Code along with the decision in Ghanashyam Mishra & Sons (supra), clearly shows that once the proceedings have commenced by institution of application under section 7 or 9 or 10 of the Code, the continuance of the pending proceedings is prohibited and when once they reach the logical conclusion with due approval of the resolution plan by the Adjudicating Authority under sub-section (1) of section 31, the claims as 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. At any rate, for the time being, this appeal cannot be proceeded with during the continuation of the proceedings under the Code. [Para 9.9] ■ However, depending upon the result of such proceedings before the adjudicating authority in respect of the corporate debtor, appropriate steps if any, may be taken by the assessee. Therefore, the leave is to be granted to the assessee to seek the restoration of the appeal, if necessitated by the orders in the CIRP. [Para 9.10] ■ The issue of limitation in filing fresh appeal, if need be, has already been dealt with by the Supreme Court in NDMC v. Minosha (India) Ltd. [2022] 138 taxmann.com 73/172 SCL 675/8 SCC 384 wherein on consideration of section 60(6) of the Insolvency and Bankruptcy Code, 2016, it was held that the entire moratorium period will be excluded in computing limitation in respect of proceedings at the hand of a corporate debtor. However, the Assessing Officer is at liberty to make an application for re-institution of the instant appeal if resolution process ends in IBC, 2016. Accordingly, the appeal of the assessee is to be dismissed as infructuous. [Para 9.11] {emphasis supplied} Page | 13 I.T.A. Nos.: 1726/KOL/2014 & 152/KOL/2018 Assessment Years: 2008-09 & 2013-14 I.T.A. Nos.: 611/KOL/2015 & 470/KOL/2018 Assessment Years: 2010-11 & 2013-14 M/s. UltraTech Nathdwara Cement Ltd. (Earlier known as M/s. Binani Cement Ltd.) Now UltraTech Cement Limited. 9. Since the provisions of IBC override the provisions of the IT Act, 1961 as is held in the judicial pronouncements cited above that the resolution applicant has to start on a clean slate and all litigations come to a stop, therefore, as is held in the decision of the Coordinate Bench in the case of Kohinoor Steel (P.) Ltd. (supra), the appeals of the Revenue as well as the assessee cannot continue as only the claims which are made part of the resolution plan can be enforced. Hence, all these appeals become infructuous and are hereby dismissed. 10. In the result, all the appeals of the Revenue as well as the assessee are dismissed as infructuous. Order pronounced in the open Court on 28th May, 2025. Sd/- Sd/- [George Mathan] [Rakesh Mishra] Judicial Member Accountant Member Dated: 28.05.2025 Bidhan (P.S.) Page | 14 I.T.A. Nos.: 1726/KOL/2014 & 152/KOL/2018 Assessment Years: 2008-09 & 2013-14 I.T.A. Nos.: 611/KOL/2015 & 470/KOL/2018 Assessment Years: 2010-11 & 2013-14 M/s. UltraTech Nathdwara Cement Ltd. (Earlier known as M/s. Binani Cement Ltd.) Now UltraTech Cement Limited. Copy of the order forwarded to: 1. M/s. UltraTech Nathdwara Cement Ltd. (Known as M/s. Binani Cement Ltd.), Ahura Centre, ‘B’ Wing, 2nd Floor, Mahakali Caves Road, Andheri (E), Mumbai-400093. 2. D.C.I.T., Central Circle-XXVIII, Kolkata Now CC-2(2), Kolkata. 3. CIT(A)- 4. CIT- 5. CIT(DR), Kolkata Benches, Kolkata. 6. Guard File. //True copy // By order Assistant Registrar ITAT, Kolkata Benches Kolkata "