Srei Equipment Finance Limited v. Assistant Commissioner Of Income Tax, Circle-11 (1), Kolkata And Ors

OD 1 & 2 ORDER SHEET IN THE HIGH COURT AT CALCUTTACONSTITUTIONAL WRIT JURISDICTION ORIGINAL SIDE WPO/1208/2023 SREI EQUIPMENT FINANCE LIMITEDVSASSISTANT COMMISSIONER OFINCOME TAX, CIRCLE-11 (1), KOLKATA AND ORS. WPO/1209/2023 SREI EQUIPMENT FINANCELIMITEDVSASSISTANT COMMISSIONER OFINCOME TAX, CIRCLE-11(1), KOLKATA AND ORS. BEFORE: The Hon’ble JUSTICE SHEKHAR B. SARAF Date: 20[th] July, 2023. Appearance:Mr. Somak Basu, Adv.…for the petitionerMr. Soumen Bhattacharya, Adv.…for the respondents The Court: The above two writ petitions deal with the same issue and aretaken up conjointly, and accordingly, order is passed in both the writ petitionsherein. Counsel appearing on behalf of the petitioner submits that the petitioner isunder moratorium for the assessment years 2016-2017 and 2019-2020 as perthe Insolvency and Bankruptcy Code, 2016, by an order dated 8[th] October, 2021, passed by the National Company Law Tribunal, Kolkata Bench, Kolkata in C.P.(IB) No.294/2021. He, accordingly, submits that the petitioner is under amoratorium and no proceedings can be initiated or continued against thepetitioner. He relies on several judgments of the Supreme Court and the HighCourt in this respect. It may be noted that the Division Bench of the CalcuttaHigh Court comprising of the Hon’ble Chief Justice T.S. Sivagnanam and theHon’ble Justice Hiranmay Bhattacharyya dealt with the similar issue with regard to the petitioner. The ratio of the same is provided below: “7. At this juncture, it would be important to note the decision theHon’ble Supreme Court in the case of Alchemist Asset ReconstructionCompany (supra), wherein the Hon’ble Supreme Court had pointed out thatthe mandate of the new insolvency Code is that the moment an insolvencypetition is admitted, the moratorium that comes into effect under Section14(1)(a) expressly interdicts institution or continuation of pending suits orproceedings against corporate debtors. This legal principle should have beenborne in mind by the assessing officer before he proceeded to pass theassessment order. Therefore, we are of the clear view that the assessmentorder dated 30[th] March, 2022 has to be set aside and the matter has to berestored to the file of the assessing officer and the matter shall be kept inabeyance till the completion of the insolvency resolution proceedings.” In light of the same, the respondent authorities are directed to stay theirhands and not proceed with the notices issued for the period of moratorium ofthe petitioner. With the above observations, the writ petitions are disposed of. (SHEKHAR B. SARAF, J.)