TaxTMI 
TaxTMI 
TaxTMI 
2020 (3) TMI 663
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....orting CRGO Laminations for transformers of any capacity. The present Petition is filed through the authorised person, Shri Tanmay S. Patel, Director of the Petitioner/Operational Creditor, as per the meeting of Board of Directors held on 22.11.2018 to initiate Corporate Insolvency Resolution process with respect to the Corporate Debtor. 3. It is submitted that the Respondent Company, Schneider Electric Infrastructure Limited is a listed company limited by shares incorporated under the Companies Act, 1956 and is having its registered office at Milestone 87, Vadodara Halol Highway, Village Kotambi, Post Office Jarod, Vadodara - 391510. The Respondent company is engaged in carrying on the business of manufacturing, designing, building and servicing Technologically Advanced Products and Systems for Electricity Distribution including products such as Distribution Transformers, Medium Voltage Switchgears, Medium and 1000 Voltage Protection Relays and Electricity Distribution and Automation Equipments. 4. It is stated that Corporate Debtor had by way of public notice invited offers to purchase used plant & machineries in the transformer factory owned by the Corporate Debtor situated at....
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.... 15% interest from 18.05.2016 till the actual date of payment. Date of Default is on 18.05.2016. 9. Now, the Petition is filed the under section 9 of the Insolvency and Bankruptcy Code, 2016 for the unpaid Operational Debt due of Rs. 14,43,691.00. 10. The case was taken up by this Adjudicating Authority on 04.01.2019; however, none appeared on behalf of the Corporate Debtor. The matter was adjourned to 18.02.2019 with directions to the Registry to serve the notice of date of hearing on the Respondent along with the copy of the order under acknowledgement. Thereafter on 18.02.2019, Advocates appeared on behalf of the Respondent. Thereafter, on 02.04.2019, the Learned Counsel appearing on behalf of the Corporate Debtor filed its reply. 11. In response to the present IB. Petition filed by the Petitioner, the Respondent has filed its reply through its Associate General Manager, Mr.Vijay Dixit, who is authorised to represent the Corporate Debtor. 11.1 It is submitted that the allegations and averments made in the application filed under section 9 of the Insolvency & Bankruptcy Code, 2016 are false and baseless. It is further denied that any amount is due and payable to the Applican....
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....e to inter alia mean a liability or an obligation in respect or a claim which is due from any person. Further, it is pleaded that in the present case, what is sought to be recovered from the Respondent is the tax amount, which has already been recovered from the Applicant and paid into the Government Exchequer in accordance with the applicable provisions of the Central Sales Tax Act, 1956. It is also pleaded that the term 'default' is defined in section 3(12) of the Code to mean non-payment of debt which has become due and payable and is not paid. The present Petition in terms of the provisions of section 8 and section 9 of the Code, can only be preferred in case there is a default and in present case since there is no debt, the question of default does not arise. 11.5 Lastly, it is submitted that the present application is an abuse of the process of the Court and the provisions of the Code and the Applicant has sought to use the present proceedings as a tool to recover amounts which are not due to it, hence the present application ought to be dismissed with exemplary costs. 12. The Applicant/Operational Creditor also filed its written submissions and reiterated the cont....
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.... Appeal No.715 of 2018 in the case of Rajeev K. Agarwal v. Panipat Texo Fabs (P.) Ltd. 12.5 Against the contentions of Corporate Debtor that since debt payable is not an operational debt, the petition is not maintainable, it is submitted that the debt is towards Value Added Tax, which incurs during the operation of the company. It is further submitted that the said position is cleared by the Hon'ble Apex Court in its various judgments. 12.6 It is contended by the Corporate Debtor that the notice is issued by an independent courier and no bank statements are furnished, hence Form 5 is incomplete. It is submitted that such contentions are nothing but technical defence and the Operational Creditor should be provided with an opportunity to clear the defects and the present petition cannot be dismissed on technical grounds. 13. The Respondent, Corporate Debtor has filed its written submissions, wherein the Respondent has submitted asunder: - 13.1 It is submitted that as per Clause 'Taxation & Duty' of the Letter of Award dated 29.05.2015, the Applicant agreed to provide C-Form before the removal of goods and the Respondent in relation of the following invoices has col....
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....olvency & Bankruptcy Code, 2016, read with Rule 5 of the Insolvency & Bankruptcy Rules, 2016. However, in the present case, no Demand Notice has been served upon the Respondent. It is submitted that the proof of service of Demand Notice show in Page Nos.33-35 of the application is in relation to a notice dated 30.07.2018 and said notice is not a Demand Notice under Insolvency & Bankruptcy Code, 2016. Further, it is also mandatory to produce statement of bank account where deposits are made or credits are received by the Applicant; however, no such bank statement is produced by the Applicant. 14. It is observed that :- The Petitioner has paid full amount to the Respondent as per the Letter of Award dtd. 29.05.2015 for an amount of Rs. l,37,16,337.00, which includes price of plant & machineries being Rs. 1,06,95,000.00 plus Rs. 13,36,875.00 being Excise Duty @12.5% plus Rs. 16,84,462.00 being VAT @14%. 14.1 As per the Letter of Award, the Respondent received the amount towards the payment of VAT, is to be refunded to the Petitioner (Applicant) provided the C- Form is submitted to the Respondent before the removal of the goods from the premises of the Respondent. 14.2 As per t....