M/S. SHEKHAR RESORTS LIMITED (UNIT OF ORIENT TAJ) versus UNION OF INDIA
[2023] 1 S.C.R. 1111, Supreme Court of India, 2023
Outcome: Appeal(s) allowed (Granted)
Segment: Facts
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M/S. SHEKHAR RESORTS LIMITED (UNIT OF ORIENT TAJ)
v.
UNION OF INDIA
(Civil Appeal No.8957 of 2022)
JANUARY 05, 2023
[M. R. SHAH AND B.V. NAGARATHNA, JJ.]
Insolvency and Bankruptcy Code, 2016 : Deposit of settlement
amount under the 2019 Scheme, during moratorium – When
impossible in view of the bar under the IBC – Appellant-corporate
debtor, if can be made to suffer for no fault of its own and rendered
rememediless – On facts, applicationby financial creditor of the
appellant u/s. 7 – Corporate Insolvency Resolution Process against
the appellant – Appellant subjected to moratorium – Thereafter,
Resolution plan approved and the appellant applied for “Sabka
Vishwas (Legacy Dispute Resolution) Scheme 2019 – Appellant
could not pay Rs 1,24,28,500/- as tax dues on the last day due to
moratorium imposed under IBC – Appellant sought extension of
time but the same was rejected – Writ petition by the appellant –
Dismissed by the High Court holding that it cannot issue direction
to the authority to accept the amount due and payable under the
Scheme, 2019; and that the Designated Committee under the scheme
is not existing – On appeal, held: Under the provisions of the IBC,
no payment could have been made during the period of moratorium
– Thus, the appellant was statutorily restrained/debarred from
making any payment – It was impossible for the appellant to make
any payment during the period of moratorium – In view thereof, the
appellant cannot be punished for
not doing something which was
impossible for it to do – There was a legal impediment in the way of
the appellant to make any payment during the moratorium –
Appellant was otherwise entitled to the benefit under the Scheme –
Thus, the High Court erred in refusing to grant any relief to the
appellant , and the order passed by the High Court quashed and
set aside – Sabka Vishwas (Legacy Dispute Resolution) Scheme,
2019.
Allowing the appeal, the Court
HELD: 1.1 It would not be fair on the part of the Court to
give a direction to do something which is impossible and if a
   [2023] 1 S.C.R. 1111
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person has been directed to do something which is impossible,
and if he fails to do so, he cannot be held guilty, the appellant
cannot be punished for not doing something which was impossible
for it to do. There was a legal impediment in the way of the
appellant to make any payment during the moratorium. Even if
the appellant wanted to deposit settlement amount within the
stipulated period, it could not do so in view of the bar under the
IBC as, during the moratorium, no payment could have been
made.  In that view of the matter, the appellant cannot be rendered
remediless and should not be made to suffer due to a legal
impediment which was the reason for it and/or not doing the act
within the prescribed time. [Para 7.3, 8][1120-H; 1121-A-C]
1.2 As regards, the observations made by the High Court
to the effect that the High Court cannot, in exercise of powers
under Article 226 of the Constitution of India extend the period
under the Scheme, 2019, to some extent the High Court is right.
The High Court while exercising the powers under Article 226
of the Constitution of India cannot extend the Scheme. However,
in the instant case it is not a case of extension of the Scheme by
the High Court. It is a case of taking remedial measures. It is
not a case where the appellant did not make any application within
the stipulated time under the Scheme. This is not a case where
the Form No.3 determining the settlement amount was
not issued
during the validity of the Scheme. It is not a case where the
appellant deliberately did not deposit the settlement amount and/
or there was any negligence on the part of the appellant in not
depositing the settlement amount within the stipulated time. It
is a case where the appellant was unable to make the payment
due to the legal impediment and the bar to make the payment
during the period of moratorium in view of the provisions of the
IBC.  There may be extra ordinary cases which are required to
be considered on facts of each case. The courts are meant to do
justice and cannot compel a person to do something which was
impossible for him to do. [Para 8.1][1121-D-F; 1122-A]
1.3. As regards, the ground given by the High Court, that
the Designated Committees are not in existence, is concerned,
it is required to be noted that the CBCE has issued a circular
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that in a case where the High Court/courts have passed an order
setting aside the rejection of the claim under the Scheme after
30.06.2020, the applications can  be processed manually. In many
cases the High Courts have remanded the matter to the
Designated Committees which consist of the officers of the
Department and the applications thereafter are processed
manually.  [Para 8.2]
1.4 As the appellant was not in a position to deposit the
settlement amount at the relevant time, more particularly on or
before 30.06.2020 due to legal impediment and the bar to make
the payment of settlement amount in view of the mortarium under
the IBC, and as it is found that the appellant was otherwise entitled
to the benefit under the Scheme as the Form No.1 submitted by
the appellant has been accepted, the Form No.3 determining the
settlement amount has been issued, the High Court has erred in
refusing to grant any relief to the appellant as prayed. [Para
9][1122-D-E]
1.5 The impugned judgment and order passed by  the High
Court is quashed and set aside. It is directed that the payment of
Rs.1,24,28,500/- already deposited by the appellant be
appropriated towards settlement dues under “Sabka Vishwas
(Legacy Dispute Resolution) Scheme, 2019” and the appellant
be issued  discharge certificate. [Para 10][1122-F]
Sunil Vasudeva vs. Sundar Gupta (2019) 17 SCC 385 :
[2019] 8 SCR 1190; Calcutta Iron Merchants
Association vs. Commissioner of Commercial Taxes
(1997) 8 SCC 42;
Gyanichand vs. State of Andhra
Pradesh (2016) 15 SCC 164 – relied on.
Case Law Reference
[2019] 8 SCR 1190
relied on
Para 7.1
(1997) 8 SCC 42
relied on
Para 7.2
(2016) 15 SCC 164
relied on
Para 7.3
M/S. SHEKHAR RESORTS LIMITED (UNIT HOTEL ORIENT
TAJ) v. UNION OF INDIA
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CIVIL APPELLATE JURISDICTION : Civil Appeal No.8957
of 2022.
From the Judgment and Order dated 24.06.2021 of the High Court
of Judicature at Allahabad in Writ Tax No.328 of 2021.
Ms. Charanya Lakshmikumaran, Ms. Apeksha Mehta, Ms.
Mounica Kasturi, Pranav Mundra, Karan Sachdev, Advs. for the
Appellant.
Vikramjit Banerji, ASG, M.K.Maroria, Ms. Niranjana Singh,
Nachiketa Joshi, Rajan Kumar Choursia, Mohd Akhil, P.V. Yogeswaran,
Siddhartha Sinha, Shivam Singhania, Raman Yadav, Advs. for the
Respondents.
The Judgment of the Court was delivered by
M. R. SHAH, J.
1. Feeling aggrieved and dissatisfied with the impugned judgment
and order dated 24.06.2021 passed by the High Court of Judicature at
Allahabad in Writ Tax No.328 of 2021 by which the High Court has
dismissed the said writ petition preferred by the appellant herein seeking
direction to the respondents for consideration of the case of the petitioner
under the scheme “Sabka Vishwas (Legacy Dispute Resolution) Scheme,
2019” (hereinafter referred to as the “Scheme of 2019”), the original
writ petitioner has preferred the present appeal.
2. The facts leading to the present appeal in nutshell are as under:
That the appellant – company registered with the Service Tax
Department was a company engaged in providing hospitality services.
The Service Tax Department conducted investigations as to the evasion
of service tax by the appellant and issued show cause notices
demanding
payment of service tax under various categories such as Accommodation
in Hotels, Inn, Guest House, Restaurant Services, Mandap Keeper
services etc.
2.1 Proceedings under the Insolvency and Bankruptcy Code,
2016 (hereinafter referred to as “IBC”) were initiated against the
appellant – Company. The NCLT, Delhi vide order dated
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11.09.2018 admitted the application filed by the Financial Creditors of
the appellant under Section 7 of the IBC. Thus, on and from 11.09.2018
the corporate insolvency resolution process against the appellant
commenced and the appellant was subjected to moratorium under Section
14 of the IBC on and from 11.09.2018. The Committee of Creditors
constituted as per the provisions of the IBC, in its 15th meeting,
unanimously approved the resolution plan submitted by NCJ Infrastructure
Private Limited on 04.06.2019. That thereafter the Scheme of 2019 came
to be introduced on 01.09.2019 under Section 125 of the Finance Act,
2019 for availing the benefit of “Sabka Vishwas (Legacy Dispute
Resolution) Scheme, 2019”. The appellant acting through its Resolution
professional submitted an application within the period prescribed under
the Scheme 2019. The applicant – company was issued Form No.1 on
27.12.2019. At this stage, it is required to be noted that the last date for
making the application under the Scheme 2019 was 31.12.2019. Thus,
Form No.1 was issued within the prescribed time limit and the tax dues
were computed by the appellant as per the Scheme, 2019. That thereafter
Form No.3 was issued by the Designated Committee on 25.02.2020
determining the amount due and payable under the Scheme by the
appellant. It appears that as per the said statement for payment of tax
dues, the appellant was required to pay Rs.1,24,28,500/-. Under the
Scheme the
appellant/assessee was required to make the payment as
per Form No. 3 within a time period of 30 days. However, in view of the
COVID-19 Pandemic, the time to make the payment was extended by
the Government upto 30.06.2020.
2.2 That the NCLT approved the Resolution Plan of the successful
Resolution applicant - NCJ Infrastructure Private Limited vide order
dated 24.07.2020. Thus, on approval of the Resolution Plan by the NCLT
the moratorium period came to an end, with the closure of the insolvency
proceedings on 24.07.2020. Subsequent to the acceptance of the
Resolution Plan by the NCLT, the appellant wrote to the successful
resolution applicant and the Commissioner, CGST and Central Excise,
Agra intimating them that the resolution process under the IBC had
come to an end and that the appellant is ready and willing to make full
amount of Rs.1,24,28,500/- as ascertained by the Designated Committee
in Form No.3. Vide communication dated 09.10.2020 to the Assistant
Commissioner, the appellant explained that the settlement amount under
the Scheme, 2019 could not be paid by the appellant before 30.06.2020
due to the legal moratorium imposed upon the company and sought
M/S. SHEKHAR RESORTS LIMITED (UNIT HOTEL ORIENT
TAJ) v. UNION OF INDIA [M. R. SHAH, J.]
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permission to pay the due amount. The Joint Commissioner, Agra vide
letter dated 19.10.2020 intimated the appellant that the last date for
payment under the Scheme was 30.06.2020, which could not be extended.
Consequently, the request of the appellant was rejected. Since the
appellant could not obtain permission for payment of the dues post the
lifting of the moratorium, the appellant approached the High Court by
way of Writ Tax No.328 of 2021. By the impugned judgment and order
the High Court has dismissed the said writ petition on the grounds that
(i) the High Court shall not issue a direction contrary to the Scheme; (ii)
the relief sought cannot be granted as the Designated Committee under
the Scheme is not existing.
2.3 Feeling aggrieved and dissatisfied with the impugned judgment
and order passed by the High Court, the original writ petitioner – appellant
has preferred the present appeal.
3. Ms. Charanya Lakshmikumaran, learned counsel appearing on
behalf of the appellant has vehemently submitted that in the facts and
circumstances of the case the Hon’ble High Court has seriously erred in
dismissing the writ petition and not directing the authority to accept the
amount due and payable under the Scheme, 2019.
3.1 It is submitted that the Hon’ble High Court has erred in holding
that the Designated Committee does not exist. It is submitted that the
Designated Committee under the Scheme was formed as per Rule 5 of
the Scheme, 2019. The Designated Committee consists of either the
Principal Commissioners, Commissioners, Additional Commissioners,
Joint Commissioners or Deputy Commissioners of the Central Excise
and Service Tax depending on the tax amount involved in the matter. It
is submitted that in the present case, the Designated Committee
comprised of the Joint Commissioner and the Commissioner who are
officers associated with the offices of Respondent nos.3 and 4. That the
Designated Officers continue to act as the Designated Committee under
the Scheme till the completion of the proceedings under the Scheme.
3.2 It is submitted that the Designated Committee under the
Scheme is being constituted on a need basis to comply with the orders of
the courts across the country. That in many cases the Designated
Committee rejected the applications under the Scheme, 2019 erroneously
and the different courts set aside the decisions of the Designated
Committee after 30.06.2020 and directed the Designated Committee to
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consider the case of the respective applicants under the Scheme, 2019.
It is submitted that to reconsider the cases pursuant to the orders passed
by the courts/High Courts, the CBEC issued the instructions dated
17.03.2021 allowing for manual processing of declarations under the
Scheme by the respective Designated Committees. It is submitted that
therefore even after 30.06.2020 the respective Designated Committees
carried out their functions under the Scheme, however by manual
processing. It is submitted that therefore the reasoning given by the
Hon’ble High Court that the Designated Committees are not in existence
after 30.06.2020 and therefore the appellant is not entitled to any relief,
may not be accepted, as even after 30.06.2020 and even as per the
instructions issued by the CBEC, the respective Designated Committees
continued to function and process the declarations manually.
3.3 It is further submitted by learned counsel appearing on behalf
of the appellant that in the instant case the Hon’ble High Court has not
properly appreciated the cause for which the appellant could not deposit
the amount under the Scheme 2019 on or before 30.06.2020. It is
submitted that at the relevant time and more particularly at the time
when the Form No.3 was issued and even during the period under the
Scheme 2019, the appellant was subjected to the rigor of the provisions
of the IBC by virtue of the moratorium period which ended on 24.07.2020
when the NCLT approved
the Resolution Plan. It is submitted that in the
instant case, the appellant bonafidely could not deposit the settlement
due, on or before 30.06.2020 on account of operation of law. It is next
submitted that during the moratorium period, no payment could have
been made as per the provisions of the IBC. It is contended that if any
payment would have been made during the mortarium period the same
would have been in breach of the provisions of the IBC. It is submitted
that as per the Resolution Plan accepted during the insolvency
proceedings, the Resolution Applicant was required to deposit all statutory
dues (including service tax dues) within 6 months from the effective
date into an escrow account. That as per the Resolution Plan, payment
to escrow account shall be treated as effective payment to the relevant
Operational Creditors. It is further contended that in this case, effective
date is 24.07.2020, the date on which the Resolution Plan was approved
by the NCLT. So, Service Tax dues along with other statutory dues
were deposited in an escrow account on 08.01.2021 before the expiry
of the period of six months. It is accrued that this Hon’ble Court in the
case of Principal Commissioner of Income Tax vs. Monnet Ispat
M/S. SHEKHAR RESORTS LIMITED (UNIT HOTEL ORIENT
TAJ) v. UNION OF INDIA [M. R. SHAH, J.]
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& Energy Ltd., (2018) 18 SCC 786 has held that once a moratorium
has been enforced, any existing proceeding against the debtor shall stand
prohibited. In this regard, it is submitted that the IBC shall have
precedence over any inconsistent statutes.
3.4 It is vehemently submitted that in any case, no person can be
left remediless due to operation of law. That in the present case, the
moratorium period under the IBC was extended from 11.09.2018 to
24.07.2020 due to the COVID-19 pandemic and non-functioning of the
NCLT. It is contended that even otherwise, the appellant could not have
made any payment during the mortarium period by operation of law and
inability to make the payment was owning to the moratorium imposed
under the provisions of the IBC. It is urged that therefore, the appellant
may not be left remediless when the application under the Scheme 2019
was submitted and processed within time. In support of her above
submissions and the relief prayed, learned counsel appearing on behalf
of the appellant has heavily relied upon the decisions of this Court in the
case of Sunil Vasudeva vs. Sundar Gupta, (2019) 17 SCC 385 (para
31), United Air Travel Services vs. Union of India, (2018) 8 SCC
141 (para 13) and Union of India vs. Asish Agarwak, (2022) SCC
Online SC 543 (para 23).
3.5 It is reiterated submitted that the appellant could not make the
payment due to legal disability and no one can be expected to do the
impossible. Reliance is placed on the decisions of this Court in the case
of Gyanichand vs. State of Andhra Pradesh, (2016) 15 SCC 164
(para 11) and Calcutta Iron Merchants Association vs.
Commissioner of Commercial Taxes, (1997) 8 SCC 42 (para 5).
3.6 It is submitted that the appellant cannot be prejudiced and/or
made to suffer for no fault of the appellant. Reliance is placed on the
decision of this Court in Anmol Kumar Tiwari & Ors. vs. State of
Jharkhand reported in (2021) 5 SCC 424.
Making the above submissions it is prayed to allow the present
appeal and direct the respondents to appropriate the payment of
Rs.1,24,28,500/- towards settlement dues under the Scheme 2019 and
that discharge certificate be issued to the appellant accordingly.
4. While opposing the present appeal, Shri Vikramjit Banerji,
learned ASG appearing on behalf of the Union of India has vehemently
submitted that in the facts and circumstances of the case no error has
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been committed by the Hon’ble High Court in dismissing the writ petition
and refusing to direct the respondents to accept the payment towards
the settlement dues under the Scheme, 2019.
4.1 It is submitted that admittedly the Scheme was valid upto
30.06.2020 and the last date for payment of settlement amount under
the Scheme, 2019 was 30.06.2020. That thereafter the Scheme was
closed and even the Designated Committees were also dissolved and
therefore as rightly observed by the Hon’ble High Court, the Hon’ble
High Court has no jurisdiction to extend the Scheme. It is submitted that
if the Scheme is extended it would create many complications.
4.2 It is further submitted that in the present case, admittedly, no
payment was made of settlement amount under the Scheme prior to
30.06.2020 and therefore, the prayer of the original petitioner to extend
the time limit to make the payment of settlement amount under the
Scheme, 2019 was rightly rejected by the Commissioner and the same
has rightly not been interfered with by the Hon’ble High Court.
Making above submissions it is prayed to dismiss the present
appeal.
5. We have heard the learned counsel appearing for the respective
parties at length.
6. At the outset, it is required to be noted and it is not in dispute
that the appellant is entitled to the benefit of the settlement under the
Scheme, 2019. The Scheme, 2019 came to be introduced on 01.09.2019
and the last date for making the application under the
Scheme was
30.12.2019 and in fact, the appellant submitted the application in Form
No.1 on 27.12.2019 i.e. before the last date specified for making an
application. Under the Scheme, after the Form No.1 is processed the
Designated Committee was to scrutinize the same and issue the Final
Form No.3 determining the settlement amount which the applicant was
required to deposit within a period of one month from the date of receipt
of the final determination – Form No.3. That the appellant was issued
the Form No.3 on 25.02.2020 and was required to pay the settlement
dues on or before 25.03.2020. However, in view of the COVID-19
Pandemic the Government extended the time upto 30.06.2020. Therefore,
the appellant was required to deposit the settlement dues on or before
30.06.2020. However, even before the Scheme, 2019 came to be
introduced, the appellant was subjected to proceedings under the IBC
M/S. SHEKHAR RESORTS LIMITED (UNIT HOTEL ORIENT
TAJ) v. UNION OF INDIA [M. R. SHAH, J.]
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which commenced on 11.09.2018 when the NCLT admitted the application
under Section 7 of the IBC. Thus, the moratorium under the IBC
commenced on 11.09.2018. The CoC approved the Resolution Plan on
04.06.2019, and the same came to be approved by the NCLT by Order
dated 24.07.2020. Therefore, the moratorium under the IBC continued
upto 24.07.2020. Under the provisions of the IBC no payment could
have been made during the period of moratorium. Therefore, the appellant
was statutorily restrained/debarred from making any payment. There
was statutory disability on the part of the appellant in making the payment
during the moratorium. If the appellant had made any payment during
the period of moratorium, the appellant would have committed breach of
the provisions of the IBC. Therefore, it was impossible for the appellant
to make any payment during the period of moratorium. Immediately on
the moratorium coming to an end, the appellant – Resolution Professional
/ the successful Resolution applicant approached the authority requesting
them to accept the settlement amount under the Scheme, 2019 as per
the Form No.3. Such request has been rejected by the Commissioner on
the rejection has been confirmed by the High Court.
7. Therefore, the short question which is posed for consideration
before this Court is, whether, when it was impossible for the appellant
to deposit the settlement amount in view of the bar and/or the
restrictions
under the IBC, the appellant can be punished for no fault of the appellant?
In a given case can the appellant be made to suffer for no fault of its
own, and be rendered remediless and denied the benefit/relief though it
was impossible for the appellant to carry out certain acts, namely to
deposit the settlement amount during the moratorium.
7.1 As per the settled position of law, no party shall be left remediless
and whatever the grievance the parties had raised before the court of
law, has to be examined on its own merits [Sunil Vasudeva (supra) (para
31)].
7.2 As observed and held by this Court in the case of Calcutta
Iron Merchants’ Association (supra), no law would compel a person to
do the impossible. [Calcutta Iron Merchants’ Association (supra) (para
5)]
7.3 In the case of Gyanichand (supra) it was observed by this
Court that it would not be fair on the part of the Court to give a direction
to do something which is impossible and if a person has been directed to
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do something which is impossible, and if he fails to do so, he cannot be
held guilty.
8. Applying the law laid down by this Court in the aforesaid
decisions to the facts of the case on hand, the appellant cannot be
punished for not doing something which was impossible for it to do.
There was a legal impediment in the way of the appellant to make any
payment during the moratorium. Even if the appellant wanted to deposit
settlement amount within the stipulated period, it could not do so in view
of the bar under the IBC as, during the moratorium, no payment could
have been made. In that view of the matter, the appellant cannot be
rendered remediless and should not be made to suffer due to a legal
impediment which was the reason for it and/or not doing the act within
the prescribed time.
8.1 Now so far as the observations made by the High Court to the
effect that the High Court cannot, in exercise of powers under Article
226 of the Constitution of India extend the period under the Scheme,
2019, to some extent the High Court is right. The High Court while
exercising the powers under Article 226 of the Constitution of India
cannot extend the Scheme. However, in the present case it is not a case
of extension of the Scheme by the High Court; It is a case of taking
remedial measures. It is not a case where the appellant did not make
any application within the stipulated time under the Scheme. This is not
a case where the Form No.3 determining the settlement
amount was
not issued during the validity of the Scheme. It is not a case where the
appellant deliberately did not deposit the settlement amount and/or there
was any negligence on the part of the appellant in not depositing the
settlement amount within the stipulated time. As observed hereinabove
it is a case where the appellant was unable to make the payment due to
the legal impediment and the bar to make the payment during the period
of moratorium in view of the provisions of the IBC. In a given case it
may happen that a person who has applied under the Scheme and who
was supposed to make payment on or before 30.06.2020, became
seriously ill on 29.06.2020 and there was nobody to look after his affairs
and therefore he could not deposit the amount; such inability was beyond
his control and thereafter, immediately on getting out of sickness he tried
to deposit the amount and/or approached the Court - can the Court close
its eyes and say that though there may be valid reasons and/or causes
for that person’s inability to make the payment, still no relief can be
M/S. SHEKHAR RESORTS LIMITED (UNIT HOTEL ORIENT
TAJ) v. UNION OF INDIA [M. R. SHAH, J.]
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granted to him? There may be extra ordinary cases which are required
to be considered on facts of each case. The Courts are meant to do
justice and cannot compel a person to do something which was impossible
for him to do.
8.2 Now so far as the other ground given by the High Court, that
the Designated Committees are not in existence, is concerned, it is
required to be noted that the CBCE has issued a circular that in a case
where the High Court/courts have passed an order setting aside the
rejection of the claim under the Scheme after 30.06.2020, the applications
can be processed manually. In many cases the High Courts have
remanded the matter to the Designated Committees which consist of
the officers of the Department and the applications thereafter are
processed manually.
9. In view of the above, and under the circumstances and for the
reasons stated above, as the appellant was not in a position to deposit
the settlement amount at the relevant time, more particularly on or before
30.06.2020 due to legal impediment and the bar to make the payment of
settlement amount in view of the mortarium under the IBC, and as it is
found that the appellant was otherwise entitled to the benefit under the
Scheme as the Form No.1 submitted by the appellant has been accepted,
the Form No.3 determining the settlement amount has been issued, the
High Court has erred in refusing to grant any relief to the appellant as
prayed.
10. In
view of the above and for the reasons stated above, the
present appeal is allowed. The impugned judgment and order passed by
the High Court is hereby quashed and set aside. It is directed that the
payment of Rs.1,24,28,500/- already deposited by the appellant be
appropriated towards settlement dues under “Sabka Vishwas (Legacy
Dispute Resolution) Scheme, 2019” and the appellant be issued discharge
certificate. Present appeal is allowed accordingly.
However, in the facts and circumstances of the case there shall
be no order as to costs.
Nidhi Jain
Appeal allowed.
(Assisted by : Abhishek Pratap Singh and Shashwat Jain, LCRAs)