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2019 (12) TMI 1326 - Tri - Insolvency and BankruptcyMaintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Operational debt or not - existence of debt and dispute or not - HELD THAT:- A right to payment is a claim. 'Debt' means a liability or an obligation in respect of a claim which is due from any person which includes a financial debt an operational debt. Any liability or obligation in respect of a claim due from any person is a debt. May be that the petitioner is entitled for refund of TDS amount which is due from the corporate debtor. There is an obligation on the part of the corporate debtor to refund the amount deducted towards TDS. Now the question is whether the amount deducted towards TDS falls within the definition of 'operational debt'. When the amount paid towards TDS comes within the four corners of the definition of 'operational debt', then only the petitioner can maintain this petition under section 9 of the I&B Code and the petitioner will be called as 'operational creditor'. The operational debt is a claim in respect of the provision of goods or services. If any amount is payable in respect of goods, then it becomes an 'operational debt'. Here the petitioner is claiming that it has paid TDS to the statutory-authorities without deducting the same from the invoices. Firstly, the petitioner is not supplier of goods. The petitioner is only a purchaser. Secondly, no amount is due in respect of the amount payable for purchase of material. The corporate debtor is the supplier - Admittedly, it is not the case of rendering any services to the corporate debtor. Amount paid towards TDS cannot be held to be an 'operational debt'. If the petitioner has paid TDS to the statutory authorities, naturally the petitioner is entitled for refund from the corporate debtor. The petitioner has to initiate separate action against the corporate debtor for recovery of the same by filing a civil suit or taking appropriate action available under the law. As far as I&B Code is concerned the claim must be in respect of provision of goods or services or other liabilities stated thereunder in section 5(21) of the I&B Code. We are unable to agree with the contention of the operational creditor that the amount paid to the statutory authorities towards TDS is an 'operational debt' - the amount paid by the petitioner towards TDS does not come within the definition of 'operational debt' and as such the petitioner is not an 'operational creditor', who can maintain this petition under section 9 of the I&B Code. The money given towards advance was held to be not an 'operational debt'. This was confirmed in the decisions cited above. Similarly, the amount paid towards TDS will not come under the definition 'operational debt'. Therefore, the petition cannot be admitted under section 9 of the I&B Code and the petition deserves to be rejected - petition dismissed.
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