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TMI Blog2019 (6) TMI 1495X X X X Extracts X X X X X X X X Extracts X X X X ..... ed in the business of manufacturing/installing of other Solar Photovoltaic Power Plants having identification No. U29190MP2009PLC021620 having registered office at 1/1, Maharani Road, Shreenath Chambers, Indore 452 007, Madhya Pradesh. 3. That, the respondent/corporate debtor M/s. Madhya Pradesh Urja Vikas Nigam Limited is a company incorporated under the Companies Act, 1956 on 25th August, 1982, having its registered office at "Urja", Gopal Bhavan, Nr. 5 No. Bus Stop, Bhopal 46 2016, Madhya Pradesh, having identification No. U40101MP1982SGC002033. That, authorised share capital of the corporate debtor is Rs. 10,00,00,000/- and paid-up share capital is Rs. 68,92,000/-. 4. The applicant/operational creditor submitted that the corporate debtor invited sealed offers by issuing a Request For Proposal (RFP) for standardization of rates for design, engineering, supply and installation & commissioning of Solar Photovoltaic Power Plants at various locations aggregating to approximately 1500 KWP in the state of Madhya Pradesh. As per the invitation under the RFP, the solar photovoltaic power plants were intended to be deployed at various locations in Madhya Pradesh based on solar photovol ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch 2017, however, failed to remit the payment to the operational creditor in respect of which TDS was deducted. 8. It is further submitted by the operational creditor that; the operational creditor was constrained to issue demand notice dated 31.05.2018, calling upon the corporate debtor to repay the sum of Rs. 2,36,81,274/- plus interest till the date of actual payment. That the demand notice dated 31.05.2018 was served upon the corporate debtor on 12.06.2018, as exhibited from the tracking report annexed to the application. That, the corporate debtor has not responded to the demand notice or served any notice of dispute. That, the corporate debtor has, therefore, not disputed its liability towards payment of the outstanding amount. The operational creditor has further contended that, the corporate debtor has acknowledged its liability by issuing TDS certificates. 9. Along with the application, the applicant/operational creditor has submitted copy of work orders issued by the respondent/invoices raised thereon, copy of demand notice, copy of TDS certificate dated 3rd July, 2017, and all other supporting documents. 10. The respondent filed affidavit in reply opposing admission o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ply to notice under Section 8 of the Code does not ipso facto lead to conclusion that liability to pay has been admitted, as is sought to be canvassed by petitioner. That, the language used in Section 8 does not lead to such a conclusion. That, the issue of deducting TDS has already been clarified, mere deduction of TDS is not a proof of admission of liability or acknowledgement of dues. That, the date of default for all the 33 invoices are mentioned as 04.07.2014, as such, by petitioner's own assertion the default occurred on 04.07.2014, therefore, contention of the applicant that the default occurred on 30.03.2017, is incorrect. Findings: 13. Heard at length the arguments of the learned lawyers appearing for both the sides also. 14. Before going into the merit it is expedient to deal with the limitation first. It is a matter of record as well as by own assertion of the petitioner that the date of default is reflected as 04.07.2014 for all the 33 invoices. Material available on the record shows that the invoices against which the claim is made by the applicant company are dated 12.12.2013 to 13.05.14. The demand notice issued by the applicant company is dated 31.05.2018 and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... initiated from December 2016. But this has also been settled by Hon'ble Supreme Court, while passing the Judgment in Civil Appeal No. 3595 of 2018 in the matter of State Bank of India v. V. Ramakrishnan [2018] 96 taxmann.com 271/49 SCL 107 dealing with Section 14 of the Insolvency and Bankruptcy Code which is reproduced herein: "Para 29.........amendment was to clarify and set at rest what the committee thought was an overboard interpretation of Section 14. That such clarificatory amendment is retrospective in nature....." While discussing the said issue, the Hon'ble Supreme Court has relied upon the following judgments: (i) CIT v. Shelly Products [2003] 129 Taxman 271: "38. It was submitted that after 1-4-1989, in case the assessment is annulled the assessee is entitled to refund only of the amount, if any, of the tax paid in excess of the tax chargeable on the total income returned by the assessee. But before the amendment came into effect the position in law was quite different and that is why the legislature thought it proper to amend the section and insert the proviso. On the other hand, learned counsel for the Revenue submitted that the proviso is merely ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The presumption against retrospective operation is not applicable to declaratory statutes. As stated in CRAIES [W.F. Craies Craies on Stature law (7th Edn., Sweet and Maxwell Ltd., 1971)] and approved by the Supreme Court [in Central Bank of India v. Workmen, AIR 1960 SC 12, Para 29]: %For modern purposes a declaratory Act maybe defined as an Act to remove doubts existing as to the common law, or the meaning or effect of any statute. Such Acts are usually held to be retrospective. The usual reason for passing a declaratory Act is to set aside what Parliament deems to have been a judicial error, whether in the statement of the common law or in the interpretation of statutes. Usually, if not invariably, such an Act contains a Preamble, and also the word "declared" as well as the word "enacted".' But the use of the words It is declared' is not conclusive that the Act is declaratory for these words may, at times, be used to introduce new rules of law and the Act in the latter case will only be amending the law and will not necessarily be retrospective. In determining, therefore, the nature of the Act, regard must be had to the substance rather than to the form. If a ne ..... X X X X Extracts X X X X X X X X Extracts X X X X
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