DCIT, Circle- 11(1), New Delhi V. HBN Dairies & Allied Ltd., New Delhi

ITA 5277/DEL/2017

• Counselvise Citation: [2021] 108 COUNSELVISE.COM (IT) 3724 (ITAT-DELHI)
• Duration Of Justice: 3 year(s) 9 month(s) 24 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-06-2021
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: C
• Assessment Year: 2014-2015
• Appeal Filed On: 14-08-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Liquidation
• Section: 13

Judgement Text

PAGE | 1 INCOME TAX APPELLATE TRIBUNAL DELHI BENCH C : NEW DELHI BEFORE SHRI SUDHANSHU SRIVASTAVA , JUDICIAL MEMBER AND SHRI PRASHANT MAHARISHI, ACCOUNTANT MEMBER (THROUGH VIDEO CONFERENCING) ITA NO. 1833 & 1834/DEL/2017 (ASSESSMENT YEAR: 2012 - 13 & 2013 - 14 ) HBN DAIRIES & ALLIED LTD, 527B, 5 TH FLOOR, HBN OFFICE, D - MALL, DISTT, CENTRE, PASCHIM VIHAR, NEW DELHI PAN: AAACH7852C VS. DCIT, CENTRAL CIRCLE - 29, NEW DELHI (APPELLANT) (RESPONDENT) ITA NO. 5277/DEL/2017 (ASSESSMENT YEAR: 2014 - 15) DCIT, CENTRAL CIRCLE - 29, NEW DELHI VS. HBN DAIRIES & ALLIED LTD, 527B, 5 TH FLOOR, HBN OFFICE, D - MALL, DISTT, CENTRE, PASCHIM VIHAR, NEW DELHI PAN: AAACH7852C (APPELLANT) (RESPONDENT) ASSESSEE BY : MS. GUNJAN JAIN, CA REVENUE BY: MS. SUNITA SINGH, CIT DR DATE OF HEARING 08/06 / 2021 DATE OF PRONOUNCEMENT 08 / 06 / 2021 O R D E R PER PRASHANT MAHARISHI, A. M. 1. THESE ARE THE THREE APPEALS FILED IN BY THE HBN DAIRIES AND ALLIED LTD FOR ASSESSMENT YEAR 2012 - 13, 2013 - 14, AND 2014 - 15 . TWO APPEALS ARE FILED BY THE ASSESSEE IN ITA NO. 1833 & 1834/DEL/2017 FOR ASSESSMENT YEAR: 2012 - 13 & 2013 - 14 AND ONE APPEAL IN I TA NO 5277/DEL/2017 IS FILED BY THE DEPUTY COMMISSIONER OF INCOME TAX, CIRCLE 11 (1), NEW DELHI FOR AY 2014 - 15. 2. AT THE TIME OF HEARING THE AR OF THE ASSESSEE MOVED AN ADJOURNMENT APPLICATION SUBMITTED THAT THE ASSESSEE IS AT PRESENT UNDER THE LIQUIDATION . THE NATIONAL COMPANY LAW TRIBUNAL HAS PASSED AN ORDER DATED 31.01.2020 WHEREIN, THE LIQUIDATOR HAS BEEN APPOINTED AND THEREFORE, THE ADJOURNMENT WAS SOUGHT. PAGE | 2 3. THE LD DR SUBMITTED THAT WHEN THE LIQUIDATOR IS APPOINTED, THE APPEALS ARE FILED BY DIRECTORS OF T HIS COMPANY FILED THESE APPEALS WHICH ARE NOT MAINTAINABLE AND NOW SHOULD FILED BY THE LIQUIDATOR OF THE COMPANY . THEREFORE, THESE APPEALS ARE NOT MAINTAINABLE. 4. WE HAVE CAREFULLY CONSIDERED THE FACTS STATED BEFORE US AND FIND THAT TWO APPEALS HAVE BEEN FILED BY THE DIRECTORS OF THE COMPANY . IN THE CASE OF ASSESSEE HBN DAIRIES & ALLIED LIMITED, THE NCLT PRINCIPAL BENCH HAD PASSED AN ORDER DATED 14.08.2018 IN CP (IB) NO.547/PB/2018, ADMITTING THE PETITION UNDER SECTION 7 OF THE IBC , 2016 AND I NSOLVENCY RESOLUTION PROFESSIONAL HAS BEEN APPOINTED . THE MOVEMENT AN ORDER IS PASSED REFERRING THE ASSESSEE FOR RESOLUTION U/S SEVEN OF THE IBC 2016, THE ADMINISTRATION OF THE COMPANY REST WITH THE INSURANCE RESOLUTION PROFESSIONAL . IN THIS CASE, THESE APPEALS ARE FILED BY THE DIRECTORS OF THE COMPANY THEREFORE, THEY ARE NOT MAINTAINABLE . THEREFORE, THESE APPEALS SHOULD HAVE BEEN PREFERRED BY THE INSOLVENCY RESOLUTION PROFESSIONAL UNDER THE INSTRUCTION OF COMMITTEE OF THE CREDITORS AND THE DIRECTORS DO NOT HAVE ANY LOCUS STANDI . THUS, WE REJECT THE ADJOURNMENT APPLICATION OF THE ASSESSEE. IN VIEW OF THIS , WE DISMISS ALL THESE TO APPEALS AS NOT MAINTAINABLE WITH A LIBERTY TO THE IRP THAT IF HE WANT S TO PREFER THESE APPEALS , HE MAY FILE THE FRESH APPEALS O R MAKES AN APPLICATION FOR RESTORATION OF THESE APPEALS WITH THE APPROVAL OF COMMITTEE OF CREDITORS . IN VIEW OF THIS, BOTH THESE APPEALS FILED BY THE ASSESSEE ARE NOT MAINTAINABLE AND HENCE DISMISSED. 5. THE THIRD APPEAL IS FILED BY THE LEARNED ASSESSING OFF ICER, ACCORDING TO THE PROVISIONS OF SECTION 14 OF IBC 2016, NO PROCEEDINGS OF SUITS AGAINST THE COMPANY CAN CONTINUE UNTIL THE INSOLVENCY RESOLUTION PROCESS IS COMPLETE . THEREFORE, THE APPEAL FILED BY THE LEARNED AO IS ALSO DESERVES TO BE DISMISSED WITH A LIBERTY TO THE AO THAT HE MAY FILE AN APPLICATION FOR RECALL OF THIS ORDER AFTER THE MORATORIUM PERIOD IS OVER. 6. IN THE RESULT ALL, THESE THREE APPEALS ARE DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 08 / 06 / 2021 . - SD/ - - SD/ - ( SUDHANSHU SRIVASTAVA ) (PRASHANT MAHARISHI) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 08 / 06 / 2021 A K KEOT COPY FORWARDED TO 1. APPLICANT PAGE | 3 2. RESPONDENT 3. CIT 4. CIT (A) 5. DR:ITAT ASSISTANT REGISTRAR ITAT, NEW DELHI