Shamken Multifab Ltd. v. DCIT (2020) 2020)78 ITR 214/ 190 DTR 77/180 ITD 756 /205 TTJ 696 ( Delhi) (Trib) /Dy. CIT v. Arhum Syntex (P) Ltd (2020)78 ITR 214/ 190 DTR 77/180 ITD 756 /205 TTJ 696 ( Delhi) (Trib) Dy.CIT v. Shamken Cotsyn Ltd (2020)78 ITR 214/ 190 DTR 77/180 ITD 756 /205 TTJ 696 ( Delhi) (Trib) Dy.CIT v. Shamken Spinner Ltd (2020)78 ITR 214/ 190 DTR 77/180 ITD 756 /205 TTJ 696 ( Delhi) (Trib)

S. 253 : Appellate Tribunal–Appeal maintainability-Application filed under S. 7 of Insolvency and Bankruptcy Code, 2016, had been admitted and moratorium under S. 14 of 2016 code, had been declared-Appeal filed by revenue against assessee under provisions of Act, could not be allowed to be continued during course of moratorium period. [Insolvency and Bankruptcy Code, 2016, S.7, 14, 238]

During the pendency of appellate proceedings before the Tribunal, the assessee-company raised a plea that since application filed against it under section 7 of the Insolvency and Bankruptcy Code, 2016, had been accepted and moratorium under section 14 of the Code had been declared, appeal filed by revenue was no longer maintainable under the provisions of the Act. Apparently, the provisions of section 14 of the Insolvency and Bankruptcy Code, 2016, provides that all these suits or continuation of pending suits or proceedings against the corporate debtor including any judgment or decree or order in any court of law, Tribunal, arbitration panel or other authority cannot be passed during the moratorium period. The period of moratorium shall have the effect from the date of such order till the completion of the corporate insolvency resolution process. In the present case, the appeal filed by the revenue is an institution of suit against the corporate debtor, which is prohibited under section 14 of the Code. As held by the Supreme Court in case of Alchemist Asset Reconstruction Co. Ltd. v. Hotel Gaudavan (P.) Ltd. [2017] 88 taxmann.com 202, it has been held that even arbitration proceedings cannot be initiated after imposition of the moratorium under section 14(1) (a) has come into effect and it is not nice in law and could not have been allowed to continue. Further the Apex Court in the case of Pr. CIT v Monnet Ispat and Energy Ltd. [SLP (c) No: 6487 of 2018, dated 10-8-2018] has upheld overriding nature and supremacy of the provisions of the Code over any other enactment in case of conflicting provisions, by virtue of a non-obstante clause contained in section 238 of the Code. In view of this the appeals filed by the revenue cannot be continued to be allowed during the course of moratorium period. Further, the recent amendment to code provides that any resolution plan or liquidation order as decided by the competent authority would be binding on all the stakeholders including the Central Govt., any State Govt. or local authority to whom a debt in respect of the payment of the dues maybe owed. This will prevent State authorities, Regulatory bodies including Direct & Indirect Tax Departments from questioning the resolution plan or liquidation order as well as jurisdiction of Tribunals with regard to the code. Thus therefore after recent amendment also there is no reason to continue with these appeals.  Accordingly the Tribunal  dismissed the appeals filed by the revenue in case of 3 companies are dismissed with the liberty to AO to  file these appeals after moratorium period, if AO wants  to continue with this proceedings, making the respective representative of committee of creditors, IRP. (AY.  Period 1-4-1995 to 30-1-2002]