TMI Blog2020 (3) TMI 663X X X X Extracts X X X X X X X X Extracts X X X X ..... ember And Prasanta Kumar Mohanty, Technical Member Roshan Shah, Adv. for the Applicant. Parth, Pranjal Buch, and Yash Nanavati, Advs. for the Respondent. ORDER Prashant Kumar Mohanty, 1. The present Petition is filed on 11.12.2018 under section of the Insolvency and Bankruptcy Code, 2016 ('IB Code' for short) read with Rule 6 of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016 ('IB Rules' for short) for initiation of Corporate Insolvency Resolution Process against the Corporate Debtor, Schneider Electric Infrastructure Limited for the recovery of the unpaid Operational Debt due. 2. The Petitioner, Amod Stampings Pvt. Ltd., having its office at Gujarat Spun Pipe Compound, Samiala-Padra Road, Tal Dist. Vadodara - 391410 and engaged in the business of manufacturing and supplying and exporting CRGO Laminations for transformers of any capacity. The present Petition is filed through the authorised person, Shri Tanmay S. Patel, Director of the Petitioner/Operational Creditor, as per the meeting of Board of Directors held on 22.11.2018 to initiate Corporate Insolvency Resolution process with respect to the Cor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 77; 16,84,306.00 towards 12% VAT charges on total 14 invoices and after submission of the Form 'C', the amount towards CST payable on the invoices comes to ₹ 2,40,612.00 i.e. 2%. Thus, in view of the terms of Letter of Award dtd:29.05.2015, the Corporate Debtor is liable to refund an amount of ₹ 14,43,691.00 within 10 days from the receipt of 'C' Form from the Operational Creditor. 7. It is submitted that since the Corporate Debtor failed to refund the VAT amount after 10 days, various reminders vide e-mails were sent and phone calls made. Lastly, the Operational Creditor sent a legal notice on 30.07.2018 to the Corporate Debtor for the payment towards the VAT amount. 8. It is submitted by the Operational Creditor that the total amount claimed is ₹ 14,43,691.00 (Rupees: Fourteen Lakhs Forty Three Thousand Six Hundred and Ninety One Only) outstanding as on 18.05.2016 with 15% interest from 18.05.2016 till the actual date of payment. Date of Default is on 18.05.2016. 9. Now, the Petition is filed the under section 9 of the Insolvency and Bankruptcy Code, 2016 for the unpaid Operational Debt due of ₹ 14,43,691.00. 10. The case was ta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion is in sync with the provisions of the Central Sales Tax Act, 1956. It is submitted that the Applicant provided the C-Forms only on 26.11.2015 08.05.2016, which is much after the time limit prescribed in the Letter of Award dtd. 29.05.2015 and also beyond the time period prescribed in the Central Sales Tax Act, 1956. Further, the goods were admittedly removed by the Applicants from the premises of the Respondent on 30.06.2015, 04.07.2015, 20.07.2015 24.07.2015. On consequence of which, the Respondent was required to make the payment of the CST @14% and deposited the same with the Government Exchequer. To substantiate their submissions, necessary copies of relevant returns and acknowledgements are placed on record as Annexure A along with the reply. 11.4 It is further pleaded that the present Petition is not maintainable for the reasons that the term 'debt' has been defined under section 3(11) of the Code to inter alia mean a liability or an obligation in respect or a claim which is due from any person. Further, it is pleaded that in the present case, what is sought to be recovered from the Respondent is the tax amount, which has already been recovered from the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Ahluwalia Contracts(India) Ltd. v. Raheja Developers Ltd. wherein it is held that even if there is a pre-existing dispute then the same ought to have been brought to the notice of the Operational Creditor by the Corporate Debtor, otherwise the petition under section 9 is to be admitted. 12.4 It is submitted that the Operational Creditor on 30.10.2018 issued a demand notice under the provisions of the Insolvency Bankruptcy Code, 2016 upon the Corporate Debtor. Pursuant thereto, no notice of dispute has even been raised by the Corporate Debtor and for the first time the Corporate Debtor, in the reply to the present petition has raised dispute.Hence, the same cannot be construed as a pre-existing dispute prior to issuance of demand notice. The Operational Creditor rely on the judgment of Hon'ble Apex Court in the case of Mobilox Innovations (P.) Ltd. v. Kirusa Software Pvt. Ltd. as well as by the Hon'ble NCLAT in Company Appeal No.715 of 2018 in the case of Rajeev K. Agarwal v. Panipat Texo Fabs (P.) Ltd. 12.5 Against the contentions of Corporate Debtor that since debt payable is not an operational debt, the petition is not maintainable, it is submitted that the debt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ame along with the Application. Exact date is not readily available with the Respondent. 08.05.2016 40013 24.07.2015 08.05.2016 40014 24.07.2015 08.05.2016 40015 24.07.2015 08.05.2016 40005 24.07.2015 26.11.2015 Thus, the above summary clearly indicates that the Applicant provided the C-Forms to the Respondent only on 14-12-2016 i.e. after the amounts were paid by the Respondent to the Govt. Exchequer. 13.2 It is further submitted by the Respondent that the Applicant has not pleaded in the entire pleadings that the CST collected by the Respondent has not been paid to the Govt. Exchequer. Further, no refund has been received by the Respondent to pass-on such benefit to the Applicant. 13.3 It is submitted that the Respondent had acted in accordance with the provisions of Central Sales Tax Act and rules framed thereunder and failure to adhere to the provisions, would make Respondent liable to payment of interest and penalty. It is further ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t of VAT with the Govt. Exchequer. 14.5 The Respondent is required to make the payment of CST and deposit the said amount collected from the Petitioner (Buyer), if C-Form is not deposited as per agreed date or at least before the amount is deposited with the Govt. Exchequer. 14.6 The amount claimed by the Petitioner is refund of VAT amount and the amount claimed is already deposited with the Govt. Exchequer by the Respondent(Seller). It is not lying with the Respondent. ORDER Having heard the arguments and submissions from both the sides and considering the materials, documents available on record including the observations made in the Point Nos.14, 14.1, 14.2, 14.3, 14.4, 14.5 14.6. This application filed by the Petitioner under section 9 of the Insolvency Bankruptcy Code, 2016 is Rejected on the ground that - (i) the Petitioner(Buyer) has failed to submit C-Form to the Respondent(Seller) in time as per the terms of the Letter of Award, dated. 29.05.2015. (ii) the amount claimed in the Petition is the VAT amount, which has already been collected from the Petitioner and deposited with the Government by the Respondent for want of C-Form within the time per ..... X X X X Extracts X X X X X X X X Extracts X X X X
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