9911796707
TMI Blog2020 (3) TMI 663X X X X Extracts X X X X X X X X Extracts X X X X ..... refundable and as per Law. Petition disposed off. X X X X Extracts X X X X X X X X Extracts X X X X ..... er the calculation, Operational Creditor paid an amount of ₹ 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2% shall be levied in place of @14% and such condition 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 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ompany Appeal No. 703 of 2018 in the case 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 main ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 submitted that the Respondent will be put in a situation of double jeopardy, whereby the Respondent on one hand having deposited 14% CST to the Govt. Exchequer will be required to also refund 12% CST to the Applicant, when Respondent has not received any refund from the Sales Tax Authorities. 13.4 It is submitted that the Applicant being the purchaser has conveniently chosen to suppress the material fats by not placing the Tax Invoices on record, with a view to mislead this Tribunal, when the entire case hinges on the date of removal of goods vis-a-vis date of provision of C-Form. 13.5 It is submitted that it is mandatory to issue demand notice in the prescribed Form upon the Corporate Debtor under section 9 of the Insolvency & Bankruptcy Code, 2016, read with Rule 5 of the Insolvency & Bankruptcy Rules, 2016. However, in the present case, no Demand Notice has been served upon the Respondent. It is submitted that the proof of se ..... X X X X Extracts X X X X X X X X Extracts X X X X
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