TMI Blog2020 (10) TMI 735X X X X Extracts X X X X X X X X Extracts X X X X ..... under the category of Operational Debt . That apart, the applicant is claiming that in view of the provision of section 48 of Gujarat Value Added Tax, 2003, he may be treated as secured statutory creditor. While deciding the issue of Operational Creditor and Financial Creditor , the Hon'ble Supreme Court observed in Swiss Ribbons Pvt. Ltd. Anr. vs. Union of India Ors. SWISS RIBBONS PVT. LTD. AND ANR. VERSUS UNION OF INDIA AND ORS. [ 2019 (1) TMI 1508 - SUPREME COURT] wherein it is, inter alia, observed that an 'Operational Debt would include a claim in respect of the provision of goods or service, including employment, or a debt in respect of payment of goods or services, including employment, or a debt in respect of p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he said order is received by way of online on 23.08.2019 and due to administrative procedure, the Application for restoration could not be filed in time. Consequent upon which, there were/are 29 days' delay in filing restoration application which is required to be condoned. 3. It is to be mentioned herein that and also on perusal of the record, it is found that IA No. 166/2019 and IA No. 167/2019 in C.P. (I.B.) No. 118/2018 were filed by the Applicant/State Tax Officer-2 with a prayer, for direction upon the RP for registering their claim in Information Memorandum, the dues of the Government namely State Tax Department to the tune of ₹ 3,28,73,432/- as a Secured Statutory Creditor in view of the provision of section 48 of the G ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rat Value Added Tax, 2003, he may be treated as secured statutory creditor. This contention of the Applicant is/are also not maintainable in view of looking to the definitions' stated hereinabove as also in view of section 238 of the IBC which read as under: Section 238 of the IBC shall have effect, notwithstanding, anything in consistent therewith contained in any other law for the time being in force any instrument having effect by virtue of any such law. 6. The Hon'ble Supreme Court in Civil Appeal No. 5120/2019, Duncans Industries Ltd. V/s A.J. Agrochem observed that, ...Therefore, considering Section 238 of the IBC, which is a subsequent Act to the Tea Act, 1953, shall be applicable and the provisions of the IBC shall ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... come tax, value added tax and other statutory dues arising out of law will arise only if the company/corporate debtor is operational and, therefore, such dues have a direct nexus with the company . 9. Thus, any dues and services of the Government Departments are considered as Operational Creditor . Under such circumstances, even if, the Applications are restored by condoning the delay, the very purposes for which the IAs have been filed are not going to succeed, as they fall under the category of Operational Creditor as per the provision of IBC. 10. However, the Applicant/State Tax Officer-2 have liberty to put their claim as Operational Creditor before the RP. Under the facts and circumstances as narrated above, we found no merit ..... X X X X Extracts X X X X X X X X Extracts X X X X
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