TaxTMI 
TaxTMI 
2019 (1) TMI 1314
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.... is Rs. 1,00,000. The corporate debtor was registered on October 15, 2008 holding Identification Number U72200TG2008PTC061416. (3) Amount of Rs. 1,40,35,232 is due to the operational creditor as stated in the petition. (4) It is averred that the operational creditor is global solutions provider focused on engineering, manufacturing, data analytics and networks and operations in Hyderabad. Both the operational creditor and corporate debtor entered into two agreements, i.e., share purchase agreement dated August 26, 2015 and tax modalities undertaking dated September 30, 2015 wherein the corporate debtor agreed to pay the service tax refund to the operational creditor. (5) It is averred that though corporate debtor received refund amount from the authorities vide cheque Nos. 342237 dated November 23, 2016 and 342225 dated October 26, 2016 but refund amount has not been deposited to the account of the operational creditor. Thus, the unpaid operational debt is Rs. 1,40,35,232. (6) It is also alleged that the respondent had not made any payment towards the debt due to the operational creditor. Subsequently, the operational creditor issued demand notic....
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.... (7) The further contention of the corporate debtor that the "claim" is neither for provision of goods, for services, for employment nor for repayment of dues arising under any law and payable to the Government, but the alleged debt pertains to the refund of service tax by the department to the petitioner/operational creditor through the respondent/corporate debtor, which is not an operational debt and hence this petition is not maintainable under section 9 of the IBC. The debt has arisen in receipt of refund of the amount from the service tax department to the petitioner-company based on the agreement between the companies vide "undertaking memorandum" dated September 30, 2015. (8) It is further contended that the agreement did not specify the modus operandi of payment. Neither any formal letter or correspondence was made nor invoice raised. (9) The respondent/corporate debtor also relied on Civil Appeal No. 9405 of 2017 of the hon'ble Supreme Court in Mobilox Innovations P. Ltd. v. Kirusa Software P. Ltd. [2017] 205 Comp Cas 324 (SC). (10) It is contended that the purported default of remittance of service tax refund by the respondent pursuant ....
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....g of its shares in the corporate debtor-company and that it falls under the definition of goods as contained in the Sale of Goods Act, 1930. 7. On the other hand, the contention of the corporate debtor that the petitioner does not fall under the definition of the operational creditor as there is no operational debt within the meaning of the Code, payable by the corporate debtor to the petitioner. The contention of corporate debtor that the petitioner does not satisfy any of the requirements to come under the definition of operational creditor contained in section 5(22) of the Code. The further case of the petitioner, the agreement provided for settlement of any dispute through arbitration. The case of the corporate debtor that the petitioner has to initiate arbitration proceedings for resolving the dispute or at least to initiate action under general law. The contention of the corporate debtor that the petitioner does not fall under the definition of the operational creditor and it cannot institute present petition under the Code. It is also the case of corporate debtor that there exist a dispute between them which was existing prior to the notice. No invoice was raised for the ....
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....ribed as company. This document was executed in pursuant to sale of shares under the share purchase agreement. 15. The share purchase agreement shows the petitioner as seller, Techwave Holdings P. Ltd., as purchaser. The corporate debtor is described as company. According to the petitioner the earlier name of the corporate debtor was Infotech Enterprises Information Technology Services P. Ltd. Now the name of the company/corporate debtor is Techwave Infotech P. Ltd. The corporate debtor was party to the share purchase agreement. Clause (3) of undertaking memorandum provides that company which is corporate debtor undertakes to refund any service tax received from Government authorities for the past period and the same shall be remitted to the bank account of operational creditor within seven days. The corporate debtor had undertaken the responsibility to refund the service tax if refunded for the past period. This obligation is arising under undertaking memorandum and modalities on tax receivables. The refund of service tax to the petitioner is nothing but an obligation. Failure to refund certainly entitles the operational creditor to proceed against the corporate debtor. The que....
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....t which is as follows: "'debt' means a liability or obligation in respect of a claim which is due from any person and includes a financial debt and operational debt;" 20. Now the petitioner has a claim against the corporate debtor-company for recovery of refund of service tax pursuance to undertaking agreement. The corporate debtor-company is under obligation to refund the service tax received from the Government authorities to the petitioner. Therefore, the amount retained by the corporate debtor company which is refund of service tax becomes debt within the meaning of section 3(11) of the Code. 21. The next important question whether the petitioner is an operational creditor and debt payable is an operational debt. Section 5(2) defines operational creditor. 22. Section 5(21) defines operational debt which is as follows: "'operational debt' means a claim in respect of the provision of goods or services including employment or a debt in respect of the repayment of dues arising under any law for the time being in force and payable to the Central Government, any State Government or any local authority." 23. The contention of learned couns....