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TMI Blog2022 (7) TMI 579X X X X Extracts X X X X X X X X Extracts X X X X ..... ts quality. It can thus be concluded that there is no material on record to suggest that were not returned for any defect in quality and it was only 2 years later in 2018 that the purported debit note was raised - it does not appear to be a debit note which inspires confidence and which can be taken to indicate pre-existence of dispute regarding the quality of supplied goods. Moreover the three emails sent on dates 2.7.2018, 5.9.2015 and 5.12.2018 are actually internal emails of the corporate debtor and not sent to the operational creditor raising any dispute about the quality of goods supplied by the operational creditor. The Hon ble Supreme Court in the case of MOBILOX INNOVATIONS PRIVATE LIMITED VERSUS KIRUSA SOFTWARE PRIVATE LIMITED [ 2017 (9) TMI 1270 - SUPREME COURT ] held that the dispute should actually exist, and it should not be spurious, hypothetical or illusory, for the rejection of the application on the basis of pre-existing dispute - In this case, the dispute is spurious, fabricated and hypothetical. Therefore, the conclusion of the Adjudicating Authority is that the dispute existed before the issue of demand notice under section 8 and thereafter section 7 appl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppellant has claimed was neither signed by the corporate debtor nor it contained necessary particulars about GST number, PAN number and other particulars, therefore, it was a fabricated debit note made as an afterthought, created only to deny liability for payment by the corporate debtor. The appellant has stated that he issued a rejoinder dated 7.12.2018 vehemently opposing the false and concocted story of defective goods and fabricated debit note, put forth by the corporate debtor. 3. The appellant has further stated that upon his filing section 9 application under IBC against the corporate debtor and the reply of the Corporate Debtor thereon, he came to know that respondent/corporate debtor has filed a suit for recovery of damages for Rs.7,50,000/- against the Appellant in Rohini Civil Court, New Delhi. He has also stated that no document in support of the purported debit note or statement of accounts or return of goods or any communication regarding quality of goods were placed on record by the corporate debtor before the Adjudicating Authority, and no evidence of filing of VAT or GST return has been submitted by the corporate debtor in support of the veracity of the said de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he purported debit note. He has stated that the debit note shown to have been sent by the corporate debtor vide e-mail dated 22.5.2018 is a fabricated debit note, which has been produced by the corporate debtor only to escape the responsibility and liability for payment of amount due to the operational creditor. He has further argued that till date of issue of section 8 notice, no suit or legal proceedings had been initiated by the corporate debtor, which also shows that the defence now being put forth by the corporate debtor is moonshine defence, which is vague and sham, and which has been raised only for evading the liability of payment. 6. The relevant provision of Section 34 of the Central Goods and Services Tax Act, 2017 and the Rule 53(1A) of the Central Goods and Services Tax Rules, 2017 are reproduced below: - Section 34 of Central GST Act, 2017 34. (1) Where a tax invoice has been issued for supply of any goods or services or both and the taxable value or tax charged in that tax invoice is found to exceed the taxable value or tax payable in respect of such supply, or where the goods supplied are returned by the recipient, or where goods or services or both s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d, of the recipient; (f) name and address of the recipient and the address of delivery, along with the name of State and its code, if such recipient is un-registered; (g) serial number(s) and date(s) of the corresponding tax invoice(s) or, as the case may be, bill(s) of supply; (h) value of taxable supply of goods or services, rate of tax and the amount of the tax credited or, as the case may be, debited to the recipient; and (i) signature or digital signature of the supplier or his authorised representative. (2) Every registered person who has been granted registration with effect from a date earlier than the date of issuance of certificate of registration to him, may issue revised tax invoices in respect of taxable supplies effected during the period starting from the effective date of registration till the date of the issuance of the certificate of registration: Provided that the registered person may issue a consolidated revised tax invoice in respect of all taxable supplies made to a recipient who is not registered under the Act during such period: Provided further that in the case of inter-State supplies, where the value of a supply does not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt before the Adjudicating Authority. The only documents presented by the respondent in the form of copies of e-mails dated 2.7.2018, 5.9.2015 and 5.12.2018 are actually emails which have been sent by Mr. Nitin Batra of K.B. Polychem (India) Ltd. with email ID [email protected]. There is only one e-mail dated 22.5.2018 (attached at page 182 of the appeal paperbook, from Prince Jagota representing the corporate debtor ([email protected]) to Nitra Batra (email ID [email protected].) which has the debit note attached with it. As has already been pointed out earlier in this judgment, this debit note does not have the necessary ingredients of debit note as required under section 34 of the Central Goods and Services Act, 2017 and Rule 53(1)(a) of the Central Goods and Services Rules, 2017. Therefore, it does not appear to be a debit note which inspires confidence and which can be taken to indicate pre-existence of dispute regarding the quality of supplied goods. Moreover the three emails sent on dates 2.7.2018, 5.9.2015 and 5.12.2018 are actually internal emails of the corporate debtor and not sent to the operational creditor raising any dispute about the quality of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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