TaxTMI 
TaxTMI 
2021 (3) TMI 386
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....Operational Creditor has filed an Interim application being I.A. (IB) No. 769/KB/2020 for an early hearing. This I.A. and C.P. were fixed for hearing on 24.09.2020 through Video conferencing since the work of the Tribunal was disrupted due to Covid-19 pandemic and consequential lockdown in West Bengal. 2. The parties have already completed their pleadings and have been heard through their respective Counsel and we will proceed to deliver our orders as under: - 3. The Operational Creditor has submitted in the petition and arguments on its behalf that the Corporate Debtor had purchased goods from the Operational Creditor from time to time in various quantities which was duly delivered at its units situated at Burdwan and Jamuria. There was no objection, demur and/or protest as regards quantity or quality or price of the goods. It is submitted by the Operational Creditor that the Corporate Debtor made irregular part payments to the Operational Creditor from time to time and out of the total tax invoices of Rs. 7,68,13,254.04 (Rupees Seven Crore Sixty Eight Lakh Thirteen Thousand Two Hundred Fifty Four and Paise Four Only), a total sum of Rs. 5,97,31,195/- (Rupees Five Crore Nine....
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....tated in the reply that the Operational Creditor agreed to reduction of Rs. 1,54,00,000/- (Rupees One Crore Fifty-Four Lakh Only), and that only a sum of Rs. 57,491/- (Rupees Fifty Seven Thousand Four Hundred Ninety One only) is due and would be paid if the Operational Creditor was ready to receive the same. The Corporate Debtor denied all other averments of the notice and required the Operational Creditor to withdraw the notice. 6. The Operational Creditor once again sent rejoinder to the reply dated 19th September, 2019, received from the Corporate Debtor and stated that the reply is replete with false, malicious and baseless allegations. The Corporate Debtor was informed that no documents have been disclosed or produced with the reply dated 9th July, 2019 and that the Corporate Debtor had failed to deny the allegations of the operational debt due to the Operational Creditor. The statements and contents of the reply are merely an after- thought, which has been designed to evade the legitimate claims of the Operational Creditor in the demand notice. The Operational creditor denied the various allegations made in the reply and once again called upon the Corporate Debtor to make ....
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....should be dismissed. 10. The Operational Creditor, however, denied in the rejoinder that the calculation of the amount made by the Operational Creditor is incorrect as alleged or at all. It was denied that a sum of Rs. 16,24,568/- was paid by the Corporate Debtor on 12th September, 2017 as alleged at all. It is submitted by the Operational Creditor that it has only one bank account i.e. with Karur Vyasa Bank and the Annexure B i.e. a statement issued by the Bank would show that no sum of Rs. 16,24,568/- was deposited in the said account of the operation creditor. It is submitted that the Corporate Debtor has with ulterior motive and mala fide intention alleged that the said sum has been paid to the Operational Creditor. In fact, the Operational Creditor has several group companies and those group companies also have transactions with the Corporate Debtor. One of the said group company is Aanchal Ispat Limited (now in CIRP) and the aforesaid cheque of Rs. 16,24,568/- was issued by the Corporate Debtor in favour of Aanchal Ispat Limited as would be evident from the bank statement certified by Karur Vysya Bank, Burrabazar Branch. It is further submitted that the cheque number menti....
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....ific request of M/s. Shyam Sel & Power Limited without attaching any risk and responsibility on Bank or any signing officer in any respect whatsoever, more particularly either as guarantor or otherwise. 14. Another letter annexed with the sur-rejoinder is issued by the Chartered Accountant M/s. S K Agrawal and Co to the Board of Directors of Shyam Sel and Power Limited i.e. the Corporate Debtor that "We, M/s. S K Agrawal and Company, statutory auditor of M/s. Shyam Metallics and Energy Limited, have been asked by the subsidiary company Shyam Sel and power Limited to certify the outstanding amount to Aanchal Iron & Steels Private Limited for the litigation in NCLT CP IB no. 1778/KB/2019 Aanchal Iron & Steel Pvt. Ltd. vs. Shyam SEL and Power Ltd. We hereby certify that as per information and explanation given to us and documents produced before us, certify that the aggregate trade payables of Rs. 447.11 crores as per the audited Consolidated Financial Statements for the year ended 31st March, 2018 includes a sum of Rs. 4.33 crores payable to Aanchal Iron & Steels Private Limited as at 31.03.2018." According to the Operational Creditor, it is a clear-cut admission of its liability ....
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....iled a consolidated Balance Sheet and annexed thereto is a consolidated list of Sundry Creditors as on 31st March, 2018, whereby the holding Company to the Corporate Debtor has admitted that Rs. 4.33 crore is payable to the Operational Creditor as on 31st March, 2018. The Ld. Counsel for the Corporate Debtor however submitted that part of the goods supplied by the Operational Creditor were defective. 17. It is however submitted by the CD that the Operational Creditor was informed about the defective goods and the Corporate Debtor raised its complaint with regard to the quality of the goods as the goods could not be used for the specified work. It is argued that the Corporate Debtor had already raised such complaint by virtue of its letter dated November 13, 2017 as the Corporate Debtor has also raised a debit note submitted under cover of its letter dated January 17, 2018. The Corporate Debtor has also submitted that a sum of Rs. 16,24,568/- reflected in the bank statement was paid to the Operational Creditor for which credit has not been given by the Operational Creditor. In reply to the arguments of the Corporate Debtor the Operational Creditor submitted that the Corporate Deb....
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....received by the Operational Creditor on 18th January, 2018. The Operational Creditor, however, has denied having received either of the two letters and has submitted that the seal and initials were forged. Though in the letter dated 13th November, 2017 the Corporate Debtor had allegedly mentioned in para 1 "that the goods supplied during the month of October'17 & November'17 did not match the specifications", it is however, not clear as to what type of specifications had been agreed to between the parties. It is also not clear whether part of the consignment was inferior or the whole consignment was inferior, no details have been mentioned in the said letter. In para 2 of the letter the Corporate Debtor has written that even after several intimations over phone they are yet to receive response from the Operational Creditor and hence they would be bound to send back the goods supplied during the month of October 2017 & November 2017 amounting to Rs. 5,18,25,895/- (Rupees Five Crore Eighteen Lakh Twenty Five Thousand Eight Hundred Ninety Five Only) to the factory of the Operational Creditor as the goods did not match the quality and specifications. To support its points, anot....
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....ount of Rs. 1.54 crores was to be waived off by one party in favour of the other party and a debit note of the said amount was to be accepted. The debit note could have been made and signed there and then. The question of issuing debit note by the Corporate Debtor and accepting debit note by the Operational Creditor is un-believable in the facts of the present case, and this A/A cannot turn a blind eye to these inactions on the part of the Corporate Debtor, which would have been the natural conduct of any prudent person much less than a qualified Company Secretary or Directors or other officers in authority or managing the day to day affairs of the Corporate debtor, and cannot blindly believe these two letters which are otherwise disputed by the operational creditor as forged ones, against all other circumstances which go in favour of the operational creditor. 22. The next question about payment of Rs. 16,24,568/- which was allegedly paid by the Corporate Debtor to the Operational Creditor on 12th September, 2017. The Operational Creditor however has denied and stated that the said amount was never deposited in its sole account and in fact the cheque had been issued by the Corpo....
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....es, the Corporate Debtor would have immediately reversed the input tax credit. If there had been meetings or discussions for about two months there must have been some exchange of e-mails in the present age when people do not rely on telephonic conversation only. None of the e-mail record exchanged between the parties has been placed on record by the Corporate Debtor. In the absence of any such record or evidence in support, the CD has attempted to base its version only on telephonic discussions and the aforesaid two letters which are otherwise being disputed as forged ones. We have also gone through the written notes with copies of the judgments relied upon by the parties. 24. In view of the aforesaid discussions, we see no truth in the story of issuing debit note by the Corporate Debtor or acceptance thereof by the Operational Creditor. The version of the Operational Creditor that neither of the two letters were received by the Operational Creditor and the seal and initials also do not belong to the Operational Creditor in any manner appears to be probable one. With the aforesaid discussions, we are of the considered view that the Operational debt of Rs. 1,70,82,059.04 is d....