TaxTMI 
TaxTMI 
2018 (6) TMI 845
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....g unit at Mirza, State of Assam from time to time. But the corporate debtor made short supplies in respect of purchase orders placed by the operational creditor in the financial year 2014-15 though after receipt of advance payment against supplies. (b) Operational creditor was paid an amount of Rs. 4,14,42,916/- as on 04/03/2015 and corporate debtor have supplied the material value of Rs. 4,02,33,473/- only and the balance amount of Rs. 12,09,443/- is liable to be returned for non-supply of the material equivalent to the said debit value be made. The corporate debtor deliberately failed to supply the purchase order quantity after taking advance. The corporate debtor neither supplied the material nor refunded the money in spite of repeated requests. (c) In spite of repeated requests and reminders made by the operational creditor, the corporate debtor have neither supplied the materials nor refunded the said advance amount of Rs. 12,09,443/- though admitting said advance is due as per the books of account. Finally, the operational creditor had issued legal notice dated 22nd May, 2017 to the corporate debtor through its legal counsel Sri Krupachand Gogineni and calle....
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....cant is incorrect. On the other hand the corporate debtor sent a reply in response to the demand notice denying the claim and raising existence of disputes. A copy of the reply is produced along with the reply affidavit marked as Annexure "A". So also the corporate debtor had replied to the notice dated 22/09/2017 vide reply letter dated 17/10/2017 and copy of the reply is produced and marked as Annexure "B" to the reply affidavit. There is no affidavit in support of the verification of the petition also produced by the applicant along with the application. (d) The corporate debtor had to bear the financial burden for taxes amounting to Rs. 17,83,908/- and interest and penalty on the said amount to Commercial Tax Department on account of non-issuance of Form C against the relevant invoices amounting to Rs. 63,39,694/- and late submissions of Form C amounting to Rs. 5, 37,13,179/-. Therefore, the corporate debtor is entitled to recover the same from the operational creditor along with the necessary damages. (e) The corporate debtor further contended that the petitioner company owes Rs. 2,12,992/-, i.e., Rs. 73,632/- and Rs. 1,39,360/- to the respondent company in r....
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....ing to the applicant annexed mistakenly). 6. So evidently the applicant is a purchaser of goods who purchased goods from the respondent, who is allegedly a corporate debtor. Admittedly, on the basis of the Purchase Orders raised by the applicant the respondent/corporate debtor supplied goods. The contentions on the side of the applicant is that because of short supply of goods valued at an amount of Rs. 12,09,443/- the respondent is liable to pay that amount, which the respondent is retaining without any right to retain with commercial rate of interest at 24% p.a. According to the applicant an advance amount of Rs. 4,14,42,916/- was paid on 04/03/2015 to the respondent for purchasing materials. However, respondent supplied materials valued at Rs. 4,02,33,473/- and, therefore, for want of supply of materials the balance amount of Rs. 12,09,443/- is due from the respondent or respondent liable to supply materials equivalent to said debt value to the petitioner. Despite demand notice for returning the amount the respondent did not return and, therefore, the debt due to the petitioner is an operational debt and the applicant is an operational creditor and therefore, application of t....
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....been towards non-submission of 'C' forms amounting to Rs. 69,39,694/- and late submission of 'C' forms amounting to Rs. 5,37,13,179/-for which our company had to bear tax amounting to Rs. 17,83,908/- and applicable interest & penalty on the said amount to the Commercial Tax department." Thus the respondent admitted receipt of the advance and retaining the amount as alleged by the petitioner. Though the quantum of amount retained is not mentioned in detail it is not in dispute. What is disputed is its liability to refund. In order to maintain an application under section 9 of the I & B Code the applicant has to prove that applicant is an operational creditor. The operational creditor is defined u/s. 5(20) of the l&B Code, 2016. An "operational creditor" "means a person to whom an operational debt is owed and includes any person to whom such debt has been legally assigned or transferred". Operational debt is defined under section 5(21) of the I & B Code, 2016 and operational debt "means a claim in respect of the provision of goods or services including employment or a debt in respect of repayment of dues arising under any law for the time being in force and paya....