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2019 (1) TMI 1314 - Tri - Insolvency and BankruptcyCorporate insolvency process - corporate debtor failed to refund the service tax even though there was an obligation under the undertaking memorandum to refund service tax - whether failure to refund the service tax received from Government authorities falls within the meaning of operational debt as contained in section 5(21) of the Code - Held that:- May be petitioner sold its shares to Techwave Holdings P. Ltd., which the petitioner is having in the corporate debtor-company. Now the question whether there is liability on the part of purchaser Techwave Holdings P. Ltd., to discharge, as far as the petitioner is concerned, in respect of sale of shares. The corporate debtor is not purchaser of shares. Techwave Holdings P. Ltd., is the purchaser. There is no dispute between the petitioner who is seller and Techwave Holdings P. Ltd., who is the purchaser in respect of sale of shares. Thus, the present dispute is not in any way connected to the transaction of sale of shares. There is a separate undertaking memorandum under which the corporate debtor undertakes to refund the service tax if any refunded by the Government authorities for the past period. This is a separate undertaking not connected to the sale transactions but it is an independent undertaking given by the corporate debtor. The dispute is not in connection with any liability to discharge in connection with sale of shares. Even though definition of goods as contained in the Sale of Goods Act includes shares, but from the facts of the case, there is no dispute with regard to sale transaction of shares between the petitioner and the purchaser, i.e., Techwave Holdings P. Ltd. Thus, undertaking given by the corporate debtor in pursuant to the undertaking memorandum for refund of service tax does not fit into the definition of operational debt. Thus, the petitioner is not an operational creditor and failure to refund service tax is not an operational debt. Therefore, the petitioner cannot maintain this petition under section 9 of the Code. The petition therefore deserves to be rejected
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