TaxTMI 
TaxTMI 
2020 (3) TMI 1216
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.... immediately communicated by learned counsel for the appellant to the appellant's office and its officials. 3. After detailed deliberations, the appellant's officials sought legal advice on available remedies and later the appellant had applied for a certified copy of the impugned order on June 17, 2019 which was prepared on June 25, 2019. Due to the intervention of summer vacation and on account of bereavement in the family of learned counsel for the appellant, the copy of the impugned order was collected in July, 2019. In this process, the delay in preferring the present appeal has occurred, which is neither an intentional nor a wilful one. The applicant/appellant has prayed for the condonation of delay of 15 days in preferring the present appeal. 4. Taking into consideration the fact that the applicant/appellant has come out with the reasons in the interlocutory application that due to intervention of summer vacation and bereavement in the family of its learned counsel that the copy of the impugned order was collected in July, 2019 and after indulging in internal deliberations it took some time to approach this Tribunal, after the prescribed period of 30 days under sec....
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....aid operational debt in relation to such dispute ? If any one of the aforesaid conditions is lacking, the application would have to be rejected. Apart from the above, the adjudicating authority must follow the mandate of section 9, as outlined above, and in particular the mandate of section 9(5) of the Act, and admit or reject the application, as the case may be, depending upon the factors mentioned in section 9(5) of the Act.' As per the reply filed by the corporate debtor, it can be inferred and concluded that there is no establishment of 'operational debt' against the corporate debtor and the same is disputed by the corporate debtor and falls well within the definition of 'dispute' as per section 5(6) which is reproduced below : 'Dispute' includes a suit or arbitration proceedings relating to- (a) the existence of the amount of debt ; (b) the quality of goods or service ; or (c) the breach of a representation or warranty." and ultimately came to the conclusion that there was no establishment of "operational debt" against the "corporate debtor" which comes within the definition of "dispute" as per section 5(6) of the "I and B" Code and dis mi....
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.... dated January 19, 2017 respectively without any protest. However, the appellant in the year 2018 had supplied the Microsoft license programme which was accepted by the end-customer. Moreover, the appellant raised the Invoice No. DGS11718-60464 dated January 17, 2018 for a sum of Rs. 39,53,609 on the respondent which received, acknowledged and accepted without any protest and the said invoices was raised after confirmation of GSTIN No. by the respondent through e-mail dated January 11, 2018. 12. The grievance of the appellant is that the respondent was required to make 50 per cent. of the advance payment and the balance 50 per cent. was to be paid within 30 days neither of which paid so far (had not paid the same). Apart from that, the respondent had stopped payments for the reasons best known to it and resultantly a sum of Rs. 39,53,609 remained unpaid as per invoice dated January 17, 2018. 13. Learned counsel for the appellant emphatically contends that the respondent and the appellant had spoken telephonically in regard to payment schedule on February 12, 2018 and that the respondent had exchanged the existence of "debt" and its inability to provide a time line for payment as....
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....fers to clauses 4 and 6 of the purchase order dated December 30, 2015 which runs as under : "(4) Payment terms : Rs. 16 lakh advance along with purchase order in favour of M/s. Solicon P. Ltd., and rest within 30 days from the date of PO. Payment to be made by Solicon to Embee Software P. Ltd., Embee Software P. Ltd., to bill to Solicon P. Ltd. (6) Delivery at : IT Office, SRS Tower, Faridabad." 20. Added further, it is the contention of learned counsel for the respondent that the arrangement in view of the aforesaid purchase order dated December 30, 2015 was valid only for a period of one year, i. e., 2016 and no purchase order was ever delivered or provided to the respondent by the appellant. Viewed in this perspective, the respondent pleads that it cannot be held liable to pay any amount. 21. Learned counsel for the respondent contends that the respondent through the e-mail dated March 23, 2018 had intimated to the appellant that the payments were not received from the customer SRS and that the initiation of dispute relates back to the year August, 2016 and hence, it was unable to forward the payment to the appellant. 22. Learned counsel for the respondent comes out with ....
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..... 27. It is to be pointed out that a mere glance of the reply notice dated May 17, 2018 makes it placidly clear that the respondent had in a crystalline fashion stated in the e-mail dated March 23, 2018 that payment had not come from its customer, i. e., SRS nor SRS was reachable. 28. The respondent in its reply notice dated May 17, 2018 addressed to the appellant had also stated that the arrangement between the appellant and respondent was valid only for a period of one year as the purchase order was only for the first year and more importantly, there was no purchase order after the said year was ever delivered, provided or given to it by SRS. 29. It is also the stand of the respondent in the reply notice dated May 17, 2018 that the notice on the company in Form 4 cannot be said to be a demand notice under section 8(1) of the "I and B" Code. 30. As seen from the invoice dated January 17, 2018 of the appellant addressed to the respondent a sum of Rs. 39,53,609 was the amount that remained unpaid according to the appellant. The respondent had sent an e-mail addressed to the appellant wherein the GSTIN Number was mentioned. It is represented on behalf of the appellant that the e-....