Srei Infrastructure Finance Limited v. Assistant Commissioner Of Income Tax, Circle 11 (I) Kolkata And Ors

ORDER SHEETIN THE HIGH COURT AT CALCUTTACONSTITUTIONAL WRIT JURISDICTION ORIGINAL SIDE WPO/2493/2022 SREI INFRASTRUCTURE FINANCE LIMITEDVSASSISTANT COMMISSIONER OF INCOME TAX, CIRCLE 11 (I)KOLKATA AND ORS WPO/2494/2022 SREI INFRASTRUCTURE FINANCE LIMITEDVSASSISTANT COMMISSIONER OFINCOME TAX KOLKATA AND ORS WPO/2495/2022 SREI EQUIPMENT FINANCE LIMITED VSASSISTANT COMMISSIONER OFINCOME TAX AND ORS BEFORE: The Hon’ble JUSTICE SHEKHAR B. SARAF Date: 27[th] July, 2023. Appearance:Mr. Somak Basu, Adv.Mr. Swagato Kabiraj, Adv.…for the petitionerMr. Soumen Bhattacharya, Adv.…for the respondents The Court: The above three 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 2014-15, 2013-14 and 2013-2014as per the Insolvency and Bankruptcy Code, 2016, by an order dated 8[th] October,2021, passed by the National Company Law Tribunal, Kolkata Bench, Kolkata inC.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 regardto 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. Furthermore, I make it clear that this Court has not gone into the issue ofjurisdiction that has been raised by the petitioner. Accordingly, the petitionershall be at liberty to raise all points of law once the moratorium is lifted. With the above observations, the writ petitions being WPO/2493/2022,WPO/2494/2022 and WPO/2495/2022 are disposed of. sp/ (SHEKHAR B. SARAF, J.)