9911796707
TMI Blog2022 (5) TMI 925X X X X Extracts X X X X X X X X Extracts X X X X ..... come Tax Act, 1961 and income tax authorities have ample powers to take appropriate action. Learned counsel for the Appellant submits that both the TDS amounts has already been made, which is disputed by learned counsel for the Respondent. Regarding non-payment of TDS, we are of the view that it is not for us to consider whether TDS amount have been paid or not although it has been clearly submitted at the Bar by the Appellant that they have been paid - the Adjudicating Authority has committed serious error in admitting the Section 9 Application on the ground of nonpayment of two TDS amounts. Thus, the order of the Adjudicating Authority admitting Section 9 Application is unsustainable and deserves to be set aside. Present is also a c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tition No. 1686 of 2018 was filed by the Operational Creditor on 13.12.2018 on the ground that the Corporate Debtor failed to make payment of a sum of Rs.9,48,997/-. There were three other Company Petitions which were filed by the Operational Creditor. After issuance of notices in the Company Petitions, there was certain settlement talks between the parties. Both the counsel made statement before the Adjudicating Authority on 03.10.2019 that they have settled the matter but terms of settlement are yet to be finalized. The Adjudicating Authority disposed off the Company Petition with liberty to revive, if settlement talks fails. Order dated 03.10.2019 is to the following effect:- ORDER Ld. Counsel for the operational creditor a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of breach of any terms and conditions of the settlement agreement the Parties of the First Part would immediately be able to take action and to claim full amount as claimed in the aforementioned proceedings filed before the Hon ble NCLT, Kolkata Bench plus other legal cost, charges, interest on outstanding s and none of the terms and conditions of the terms of settlement will prevail. c) After aforesaid settlement amounts were paid by the Corporate Debtor. The Operational Creditor filed an I.A. before the Adjudicating Authority praying for revival of the Section 9 Application on which application Adjudicating Authority passed an order asking the Corporate Debtor to indicate the details of the payment. In pursuance of the direction of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ditor with regard to which Supplementary Affidavit has been filed indicating the details of the payments. He further submits that with regard to two TDS amounts, Supplementary Affidavit has clearly mentioned that TDS amount of Rs.66,884/- and Rs.1,10,820/- could not be paid which remained outstanding. He submits that non-payment of TDS amount could not be held to be a debt on which Section 9 proceeding can be proceeded with and the Adjudicating Authority committed error in admitting the Section 9 Application. 3. Learned counsel for the Respondent refuting the submissions of learned counsel for the Appellant contends that as per the Settlement Agreement the payment of TDS was also part of the settlement and since TDS has not been paid by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Debtor that the TDS amount of Rs.66,884/- (Rupees Sixty Six Thousand Eight Hundred Eighty Four only) and Rs.1,10,820/- (Rupees One Lakh Ten Thousand Eight Hundred Twenty only) does not come within the pecuniary jurisdiction of this Adjudicating Authority. The Corporate Debtor is liable to pay the said amount. 7. As noticed above, the liberty to revive was granted in following words: liberty to revive the same, if settlement talks fails This order was passed on 03.10.2019 by which Company Petition was disposed off. The very next day i.e. on 04.10.2019, Settlement Agreement was entered into between the parties. Thus, there was no occasion for failure of talks between the parties, hence, order reviving application under Sectio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... plication on the ground of nonpayment of two TDS amounts. For the reasons noted above, the order of the Adjudicating Authority admitting Section 9 Application is unsustainable and deserves to be set aside. 10. Present is also a case where the Operational Creditor has misused the process of I B Code in filing application for revival of Section 9 Application for non-payment of two TDS amounts. The process of I B Code cannot be utilized for the above purpose, whereas present is not a case that Corporate Debtor has not paid any amount due to the Operational Creditor. We, are satisfied that Operational Creditor has misused the process of I B Code. We, thus, allow this Appeal with a cost of Rs.1 Lakh (Rupees One Lakh only) on the Operational C ..... X X X X Extracts X X X X X X X X Extracts X X X X
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