Commercial Tax Department Vs Mangesh Vitthal Kekre (NCLAT Delhi)
NCLAT Delhi held that provisions of section 43 of the Insolvency and Bankruptcy Code, 2016 (IBC) cannot be attracted where no transaction was made by the Corporate Debtor. Thus, application u/s. 43 was wholly misconceived hence adjudicating authority directing refund of amount is unsustainable.
Facts- Corporate Insolvency Resolution Process (CIRP) against the Corporate Debtor, M/s. Bhagwan Motors Private Ltd., commenced by Order dated 21.06.2019.
The Commercial Tax Department issued a Notice dated 03.07.2019 u/s. 128 of the Madhya Pradesh VAT Act, 2002, upon VE Commercial Vehicles Limited to pay sum of Rs.17,12,094/-. VE Commercial Vehicles Limited deposited the amount of Rs.17,12,094/- to the Commercial Tax Department.
The Resolution Professional (RP) filed an application against the VE Commercial Vehicles Limited, Respondent No. 1 and Commercial Tax Officers as Respondent No. 2 u/s. 43 read with Section 60(5) of the Insolvency and Bankruptcy Code, 2016, for refund of the aforesaid amount from the Commercial Tax Department.
The Application was opposed both by VE Commercial Vehicles Limited as well as the Commercial Tax Department pleading that the deposit of amount of Rs.17,12,094/- is not a Preferential Transaction within meaning of Section 43 and the Application is not maintainable.
