TaxTMI 
TaxTMI 
2017 (11) TMI 946
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....ia enterprise with CIN No. U29299RJ1964GO1001174. It was incorporated on 31.03. 1964. The registered office is located at Jhalawar Road, Kota, Rajasthan 3224005. 2. It is stated in the application that the Corporate Debtor was awarded a contract by ONGC for executing structural modification work at 27 unmanned platforms in Maharashtra for development of modular rig. This contract was notified on 29.05.2009 and a copy of the notification has been annexed with the application. The lump sum price of the tender was Rs. 142,11,58,500/- and was inclusive of all taxes, duties, levies, insurance, octroi etc. The completion period of the work was 730 days inclusive of monsoon period from the date of notification of award i.e. by 28.05.2011. It is, subsequently, stated that Corporate Debtor issued LOI No. MDD/BN/OP-4109001/LOI dated 10.06.2009 against the said contract to the applicants for structural modification work at unmanned platforms in Maharashtra for deployment of modular rig on turnkey basis on 16.06.2009. This LOI was to be executed on the lump sum basis for Rs. 106,01,18,000/-. Our attention has been drawn to the fact that this LOI issued to the applicant by Corporate Debtor was....
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....applicable on the applications vis-a-vis the respondent No. 1/ONGC. 3. The applicant filed an application under section 9 of the Insolvency and Bankruptcy Code (hereinafter referred to as Code) before this Tribunal. In part-4 of the application, the total amount of the debt claimed is as follows: - Rs. 4.90 crores as principal amount and Rs. 2,62,55,270,00 towards interest on the principal amount as raised vide invoices dated: - Int. invoice-20.12.2011 Rs. 1,05,96,919.00 Int. invoice-25.04.2013 Rs. 1,31,91,432.00 Int. invoice - 22.07.2013 Rs. 24,66,919.00 Total Interest Invoice is Rs. 2,62,55,270.00 Details of the transaction: Letters dated 16.06.2009, 30,07.2009 and amendments dated 17.02.2010, 23.09.2010 and 19.04.2011 in relation to ONGC project for 'Structural Modification work at unmanned platforms in MH for deployment of Modular rig on turnkey basis.' Further, the claimant also submits an extra claim of Rs. 12,70,72,828/- which is on back to back terms the Respondents have with ONGC. The claimant reserves its right to initiate appropriate legal proceedings in the event the Respondent fails to get the payment from ONGC for the said extra claims. The aforesaid pr....
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....d that the due amount of Rs. 5.40 crores has been acknowledged. Extracts of the said letter are reproduced below: - "With regards to due amount of Rs. 5.40 crores, as already discussed, there has been delay in receipt of major funds from State/Central Govt, agencies and it will take a few more months (3-4 months) time to get some major funds. Though, I had assured that all possible efforts will be made to clear due payment and may try to initiate release of part payments at the earliest possible, the schedule/dates mentioned in the letter were not committed. We are putting in all efforts to mobilize funds at an early date however in view of involvement of various agencies the exact dates cannot be committed. With regards to extra/additional claims of Rs. 12,70,72,828/- based on our request, Secretary, (Department of Heavy Industries) has issued letter, dated 09th Jan, 2014 to his counterpart in Ministry of Petroleum & Natural Gas for resolution of matter with ONGC. We understand that letter has been sent to ONGC management for perusal. You will appreciate this is more effective approach to resolve the issue as compared to initiating Arbitration with ONGC. We are monitoring the ....
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.... the same with the Sales Tax Authorities against the demand notice. It was also made clear that if the interest burden increases, it will have to be borne by the applicant. A copy of the demand notice was also annexed. A copy of the letter dated 24.03.2015 is on (Annexure-R/2). 10.2 The petitioner company replied vide its letter dated 21.04.2015 and inter alia stated that it is not liable to pay the aforesaid amount inasmuch as the work was performed offshore and therefore the Government of Maharashtra is not having jurisdiction to demand the tax. It was also mentioned that the liability of tax was included in the contract amount. A copy of the applicant's letter dated 21.04.2015 is on record (Annexure-R/3). 10.3 It is stated that, in the meantime, on 12.12.2014, the respondent company challenged the demand notice before the Joint Commissioner of Sales Tax, Mumbai and the matter is still pending before it and interim order has been granted. A copy of receipt of appeal and interim order are on record (Annexure-R/4). Further, submissions were made to the appellate authority vide respondent's letter, dated 16.02.2015 and 17.04.2015 copies of which are on record (Annexure- R/5). 10.....
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....ies. But the respondent Company has clarified that the payment would be made based on negotiations with unsecured creditors, which in due course would be sanctioned by Government of India and would be paid within one week after receipt of payment and subject to resolution of other two points 1(b) & (c) mentioned above. The matter of applicability of the Sales Tax for the ONGC contract executed by the respondent Company & its subcontractor, the applicant company, is under judgment and in case the sales tax is applicable who will bear it, is to be decided by ONGC. In case it is to be borne by respondent Company then the same will be proportionately compensated by the applicant company as the contract terms and condition of the ONGC contract are applicable on the applicant company on back to back basis. 13. In the rejoinder, the Applicant has denied any liability towards Sales Tax under MVAT Act. It is also pointed out that the Corporate Debtor has itself not considered the liability towards VAT/Sales Tax as NIL as mentioned in Annexure C-3 (RS 11) of the contract between the Corporate Debtor and Oil and Natural Gas Corporation ("ONGC"). Based on which, the Applicant has not conside....