2025 (7) TMI 488 - AT - IBC

Section 66 IBC fraudulent trading findings upheld against LED bulb company for Rs.3.18 crore loss through fictitious transactions

NCLAT Principal Bench dismissed appeal challenging fraudulent trading findings under Section 66 IBC. Corporate debtor's LED bulb transactions during FY ... Fraudulent nature of transactions/fraudulent trading - transactions relating to LED Bulbs by the Corporate Debtor - notional loss or not. Whether the transactions undertaken by the Appellant in the LED Bulb business during FY 2016-17 constituted fraudulent trading within the meaning of Section 66 of the Insolvency and Bankruptcy Code, 2016? - HELD THAT:- The Appellant’s arguments fail to rebut the key findings of the forensic audit. Mere assertions of commercial intent or revival strategy cannot stand against proven evidence that no genuine trade occurred. The fact that the Appellant paid out significant sums to entities later proven to be fictitious and then erased these transactions from the books using adjusting entries cannot be attributed to negligence or error it reflects willful deception - The reliance placed by Appellant on Regen Powertech [2022 (9) TMI 1166 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL, CHENNAI] is also misplaced. That case involved directors acting under a bona fide belief that losses could be reversed. Here, there is no indication of such belief. Instead, what is seen is a carefully orchestrated structure of sham transactions intended to misrepresent financial health. It is also noted that under general corporate jurisprudence, directors are expected to exercise fiduciary responsibility and ensure transparency in financial disclosures. The deliberate use of fictitious parties, false addresses, and manipulated accounting entries represents a gross violation of those principles. The LED bulb trading transactions undertaken by the Appellant were (i) Entered into with fictitious and non-existent parties; (ii) Executed with the intent to inflate turnover and siphon off funds; (iii) Structured using fabricated debit/credit notes and reversed entries to mislead stakeholders; and (iv) Resulted in a real cash loss of Rs.3.18 crores to the Corporate Debtor - the business of the Corporate Debtor was carried on, at least in part, with intent to defraud creditors and for a fraudulent purpose, as contemplated under Section 66(1) of the IBC. The Appellant, being a knowing and active participant in such transactions, is liable under the said provision. Whether direction to the Appellant to contribute Rs.3.18 crores to the Corporate Debtor’s assets is legally sustainable? - HELD THAT:- The provision empowers the Adjudicating Authority to direct a person who knowingly carried on the business of the Corporate Debtor with intent to defraud creditors or for a fraudulent purpose, to make a contribution to the assets of the Corporate Debtor, as it may deem fit - This discretionary power is not unbridled; it must be exercised based on Sufficient evidence of fraudulent conduct; An identifiable financial loss traceable to such conduct; and a judicially rational and proportionate basis for quantifying the liability. The computation of Rs.3.18 crores is arithmetically precise and is not based on assumptions. These funds exited the company’s books and were never returned—whether as goods, cash, or receivables; leaving the Corporate Debtor, and consequently its creditors, in a worse position - the loss is actual and not “notional,” contrary to the claim made by the Appellant. The Adjudicating Authority did not exceed its jurisdiction or base its findings on conjecture. It performed a detailed factual and legal evaluation, applied the statutory provision correctly, and arrived at a well-reasoned outcome. Further, the quantum of Rs.3.18 crores is neither excessive nor punitive. It is exactly equal to the demonstrated loss and aims at restoring the Corporate Debtor’s estate—not punishing the Appellant. Section 66(1) is remedial in nature and is meant to reinstate the corporate debtor’s financial position by undoing fraudulent depletion of assets. The order, in this light, is proportionate, reasoned, and lawful. There are no infirmity in the impugned order - appeal dismissed. The present appeal arises under Section 61 of the Insolvency and Bankruptcy Code, 2016 ('Code') challenging the order of the Adjudicating Authority which held the Appellant liable for fraudulent transactions involving LED bulb trading during the financial year 2016-17 and directed him to contribute Rs. 3.18 crores to the assets of the Corporate Debtor. The core legal issues for determination are:Issues Presented and Considered:1. Whether the transactions undertaken by the Appellant in the LED bulb business during FY 2016-17 constituted fraudulent trading under Section 66(1) of the CodeRs.2. Whether the direction to the Appellant to contribute Rs. 3.18 crores to the Corporate Debtor's assets is legally sustainableRs.Issue-wise Detailed Analysis:Issue I: Fraudulent Trading under Section 66(1) of the CodeThe first and pivotal issue concerns whether the LED bulb trading transactions were fraudulent within the meaning of Section 66(1) of the Code, which empowers the Adjudicating Authority to hold persons liable who knowingly carried on the business of the Corporate Debtor with intent to defraud creditors or for any fraudulent purpose.Relevant Legal Framework and Precedents:Section 66(1) requires proof of fraudulent intent and knowing participation. The burden is on the party alleging fraud to establish it on a preponderance of probabilities. The Tribunal referred to the judgment in 'Regen Powertech Pvt. Ltd. vs. Wind Construction Pvt. Ltd.' which clarifies that fraudulent trading demands a high degree of proof and mere business failure or poor decisions do not suffice. The Supreme Court's decision in 'Anuj Jain IRP for Jaypee Infratech Ltd. vs. Axis Bank Ltd.' was also cited, affirming that fraud under the IBC can be inferred from circumstantial evidence and patterns of transactions.Court's Interpretation and Reasoning:The Tribunal analyzed the forensic audit report and field investigations which revealed that several entities involved in the LED bulb transactions were fictitious or non-existent at their declared addresses. For example, 'Satyam Traders' was actually a bicycle repair shop, 'Garg Sales Corporation' was a different business altogether, and other purported vendors and customers were similarly untraceable or unrelated entities.The forensic audit showed that although the books recorded purchases of Rs. 9.33 crores and sales of Rs. 9.88 crores, these were offset by debit notes of Rs. 6.28 crores and credit notes of Rs. 10.06 crores, effectively nullifying the transactions on paper. Despite this, actual payments of Rs. 3.43 crores were made to these fictitious suppliers, and recoveries from fictitious customers fell short by Rs. 0.52 crores, resulting in a real cash loss of Rs. 3.18 crores to the Corporate Debtor.The Tribunal rejected the Appellant's contention that the loss was merely 'notional' and that the transactions were bona fide attempts to revive the company. It emphasized that the issuance of backdated debit and credit notes to reverse transactions, the absence of genuine stock or invoices, and the use of fictitious parties demonstrated a deliberate scheme to inflate turnover and siphon off funds. The Appellant's failure to provide any credible explanation or rebut the forensic findings further supported the conclusion of fraudulent intent.Key Evidence and Findings:Forensic audit report dated 12.09.2019 detailing fictitious vendors and customers.Field investigations confirming non-existence or unrelated businesses at stated addresses.Accounting entries showing inflated purchases and sales offset by reversing debit and credit notes.Actual cash outflows to fictitious entities and unrecovered receivables.Discrepancies in audited financial statements indicating mismanagement and manipulation.Application of Law to Facts:The Tribunal applied the legal test for fraudulent trading under Section 66(1), finding that the Appellant knowingly participated in carrying on the business with intent to defraud creditors. The pattern of sham transactions, fabricated documentation, and financial loss established the requisite fraudulent intent beyond mere poor business judgment.Treatment of Competing Arguments:The Appellant's arguments that the transactions were commercial decisions aimed at reviving the Corporate Debtor, that losses were only notional, and that no personal gain was derived were considered but found unpersuasive. The Tribunal distinguished the facts from the precedent relied upon by the Appellant, noting the absence of bona fide belief or genuine business activity in this case. The Respondent's evidence of deliberate manipulation was accepted as credible and compelling.Conclusion on Issue I:The Tribunal held that the LED bulb trading transactions were fraudulent within the meaning of Section 66(1) of the Code, involving fictitious parties, fabricated accounting entries, and resulting in actual financial loss to the Corporate Debtor. The Appellant was a knowing party to this fraudulent conduct.Issue II: Legality of Direction to Contribute Rs. 3.18 CroresRelevant Legal Framework and Precedents:Section 66(1) empowers the Adjudicating Authority to direct persons involved in fraudulent trading to contribute to the assets of the Corporate Debtor. The remedy is remedial and aimed at restitution, not punishment. The contribution amount must be based on sufficient evidence, reflect actual loss, and be proportionate.Court's Interpretation and Reasoning:The Tribunal examined whether the direction to contribute Rs. 3.18 crores was justified and sustainable. It found that the forensic audit report and ledger reconciliations provided a clear, rational basis for this figure, which comprised:Rs. 2.67 crores representing excess payments to fictitious suppliers beyond legitimate payables.Rs. 0.52 crores representing unrecovered amounts from fictitious customers.The Tribunal rejected the Appellant's claim that the loss was notional or hypothetical, emphasizing that actual funds left the Corporate Debtor's accounts and were never returned. The Adjudicating Authority's discretion was exercised judiciously, grounded in detailed factual and legal analysis, and aimed at restoring the Corporate Debtor's estate for the benefit of creditors.Key Evidence and Findings:Forensic audit methodology and computations.Bank transfer records and ledger entries confirming outflows to fictitious parties.Absence of any credible rebuttal or documentation from the Appellant.Application of Law to Facts:The Tribunal held that the Adjudicating Authority's order was within jurisdiction, reasoned, and proportionate. The amount directed to be contributed corresponded precisely to the loss caused by the fraudulent transactions and was not punitive but restorative.Treatment of Competing Arguments:The Appellant's challenge to the amount as disproportionate and unsupported was dismissed as the forensic audit provided a clear, evidence-based calculation. The Respondent's submissions on the necessity and legality of the restitution order were accepted.Conclusion on Issue II:The direction to the Appellant to contribute Rs. 3.18 crores to the Corporate Debtor's assets was found to be legally sustainable, properly grounded in evidence, and proportionate to the fraudulent conduct established.Significant Holdings:'The LED bulb trading transactions undertaken by the Appellant were (i) Entered into with fictitious and non-existent parties; (ii) Executed with the intent to inflate turnover and siphon off funds; (iii) Structured using fabricated debit/credit notes and reversed entries to mislead stakeholders; and (iv) Resulted in a real cash loss of Rs.3.18 crores to the Corporate Debtor.''We therefore hold that the business of the Corporate Debtor was carried on, at least in part, with intent to defraud creditors and for a fraudulent purpose, as contemplated under Section 66(1) of the IBC. The Appellant, being a knowing and active participant in such transactions, is liable under the said provision.''Section 66(1) is remedial in nature and is meant to reinstate the corporate debtor's financial position by undoing fraudulent depletion of assets. The order, in this light, is proportionate, reasoned, and lawful.''The computation of Rs.3.18 crores is arithmetically precise and is not based on assumptions. These funds exited the company's books and were never returned-whether as goods, cash, or receivables; leaving the Corporate Debtor, and consequently its creditors, in a worse position.''The Adjudicating Authority did not exceed its jurisdiction or base its findings on conjecture. It performed a detailed factual and legal evaluation, applied the statutory provision correctly, and arrived at a well-reasoned outcome.'