Yogesh Kumar U.S. ORDER
Yogesh Kumar U.S., Member (J)
1. This appeal is filed by the assessee for assessment year 2016-17 against the order of the ld. Commissioner of Income Tax (Appeals) 31, New Delhi, dated 02/09/2019.
2. The assessee has raised the following grounds of appeal:-
"1. That the learned Commissioner of Income Tax (Appeals)-31, has erred both in law and on facts in upholding assessment concluded by the Asst. Commissioner of Income Tax, Central Circle -27, New Delhi at Rs. 9,77,19,260/- instead of income of Rs. 9,33,18,370/- returned by the appellant.
2. That on the facts circumstances of the case and in law, the learned Commissioner of Income Tax (Appeals)-31, has erred in upholding that inference made by Ld. AO that payments made to parties referred under section 40A(2)(b) of Income Tax Act, 1961 are liable to be disallowed under section 37 of the Act.
3. That the learned Commissioner of Income Tax (Appeals)-31, has erred both in law and on facts in confirming disallowance of Rs. 44,00,886/- being the amount spent on higher education of children of Directors, on ground that salaries were paid to them
4. That the learned Commissioner of Income Tax (Appeals)-31, has erred both in law and on facts in confirming disallowance of Rs. 44,00,886/- under section 37 of Income Tax Act, 1961 made by Ld. Assessing Officer
5. That That on the facts and circumstances of the case and in law the Hon'ble Commissioner of Income Tax (Appeals)-31, New Delhi, erred in upholding additions made by Ld. AO pervasive to binding decisions interpreting provision explained by courts.
6. That on the facts and circumstances of the case and in law the Hon'ble Commissioner of Income Tax (Appeals)-31, New Delhi, erred in not appreciating the facts of the case.
3. Brief facts of the case are that, the assessment proceedings has been initiated against the Assessee and an assessment order came to be passed on 27/12/2018 by disallowing the expenditure of Rs. 44,00,886/-. Aggrieved by the Assessment order dated 27/12/2018, the Assessee preferred an appeal before the Ld. CIT(A). The Ld. CIT (A) dismissed Appeal filed by the Assessee on 02/09/2019 by confirming the Assessment Order, which is under challenge before this Tribunal.
4. The Ld. Counsel for the assessee brought to our notice that a financial creditor had filed an Application u/s. 7 of Insolvency and Bankruptcy Code 2016 against the assessee in (IB)-194(ND)/2021 before the National Company Law Tribunal Principal Bench at New Delhi ('NCLT' for short) and judgment has been passed by the NCLT on 20/09/2022 by allowing the application. Therefore, submitted that consequential appropriate order may be passed in the present appeal.
5. Per contra, the Ld. DR has not disputed the fact regarding passing of the order by the NCLT and also agreed with the submission of the Ld. AR.
6. We have heard the parties, perused the material available on record and gave our thoughtful consideration. It is found that a financial creditor had filed an Application u/s. 7 of Insolvency and Bankruptcy Code 2016 against the assessee in (IB)-194(ND)/2021 before the National Company Law Tribunal Principal Bench at New Delhi ('NCLT' for short) and judgment has been passed by the NCLT on 20/09/2022 by allowing the said application. The NCLT has admitted the Application filed u/s. 7 of IBC Code, in terms of Section 14 of the IBC Code and consequent to the same the moratorium terms of Section 14(a),(b), (c) & (d), the following prohibition are imposed, which are as under:
"a) The institution of suits or continuation of pending suits or proceedings against the corporate debtor including execution of any judgment, decree or order in any court of law, tribunal, arbitration panel or other authority;
b) Transferring, encumbering, alienating or disposing of by the corporate debtor any of its assets or any legal right or beneficial interest therein;
c) Any action to foreclose, recover or enforce any security interest created by the corporate debtor in respect of its property including any action under the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002;
d) The recovery of any property by an owner or lessor, where such property is occupied by or in the possession of the corporate debtor."
7. In view of the above, no proceedings can be initiated against the corporate debtor, i.e., assessee company including the present proceedings before this Tribunal, or the income tax proceedings and recovery of demand or giving effect of any order. It is well settled now that, IBC has overriding affect on all the acts including Income Tax Act which has been specifically provided u/s. 178(6) of the I.T. Act as amended w.e.f. 01.11.2016.
8. Thus, in view of moratorium declared by NCLT, all the proceedings in the Court of Law, Tribunal etc. cannot continue in view of Amendment to Section 178(6) of the Act, therefore, no useful purpose is going to be served in continuing the present proceedings.
9. In view of the above, we dismiss the appeal in limine. However, liberty is granted to the assessee to seek remedial measures in accordance with law as and when the moratorium period is over or order of the NCLT is modified revival of assessee company takes place or where it is necessary to do so in the interest of justice.
10. In the result, the appeal of the assessee is dismissed.
Order pronounced in the open court on 16th February, 2023.
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