TaxTMI 
TaxTMI 
2021 (5) TMI 397
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..... In the requisite Form, under the head "Particulars of Operational Debt" the total amount in default is stated to be Rs. 4,64,65,107/- as on 31.07.2019plus further delayed payment charges @1.92% per month for 5 months from 01.08.2019 to 31.12.2019. BRIEF HISTORY OF THE CASE 3. The Petitioner is a private limited company and in the business of supply of steel materials, etc. and the Respondent is a public limited company and engaged in manufacturing and dealing in the business of steel products. 4. The Petitioner states that on receiving oral instructions from the Petitioner, the Respondent have executed orders for supply of steel materials as per business practice agreed, accepted and followed between the Petitioner and the Respondent. The Petitioner states that they had sold, supplied and delivered to the Respondent from time to time on high seas sale basis and domestic local sales in India of steel materials, etc. The Petitioner further states that the Respondent has not raised any objections regarding quality, quantity, delivery schedule and rate thereof on receipt of the steel materials. 5. The Petitioner further states that the Respondent had given assurances to c....
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....dent failed to pay the amount and overdue interest to the Petitioner. The Respondent also failed to reply to the said notice. 12. Thereafter the Petitioner made several follow up reminders, but the Respondent failed to make the payment. Hence, on 04.11.2019 and on 07.11.2019 the Petitioner issued a demand notices demanding a payment of Rs. 4,23,95,172/- along-with delayed payment charges @1.92% p.m. until the date of payment as due and payable by the Respondent to the Petitioner. The said notices were received by the Respondent on 05.11.2019 and on 09.11.2019. 13. The Respondent, through its advocate replied to the said Demand Notice through its advocate on 14.11.2019 denying the liability. SUBMISSIONS BY THE RESPONDENT IN REPLY 14. The Respondent replied to the said Demand Notice through its advocate on 14.11.2019 denying the liability. The Respondent also filed a reply to the petition raising following contentions; a. The Respondent denied having signed the letter dated 30.05.2019 and thus the same, he says, is fabricated, forged and malafide. b. The Respondent mentions that the notice dated 26.08.2019 for payment of the alleged unpaid sum of Rs. 4,2....
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....the Advocates for the Petitioner. Vide the said letter, the Respondent has inter-alia denied having signed or given any acknowledgement of debt. g. The Respondent mentions that the Petitioner is misusing the cheques given by Respondent only for the purpose of security. The said cheque was given only out of due force and undue influence upon the Respondent without any admission of liability by the Respondent. SUBMISSIONS BY THE PETITIONER IN REJOINDER 15. The Petitioner in its rejoinder made submissions as follows; a. the Petitioner deny the allegations made therein as false in view of the fact that no evidence substantiating the said allegations is made out in absence of any evidential proof in support thereof in the said reply. b. Petitioner mentions that its claim squarely falls within the definition of Section 5(21) of the I&B Code relating to the operational debt on the basis of documents annexed to the application. The application is in due compliance of the provisions of Law u/s 8 of I &B Code read with regulations applicable thereto. c. the Petitioner states that the contents of the documents annexed to the application sufficiently s....
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.... 19. The Bench here also notes that with the Petition no invoice or any details with respect of provision of goods in terms of debt for which the transaction has taken place, quantities, amount, purchase orders, contract, invoices, delivery challan or any receipt were submitted. The Petitioner has just mentioned that these transactions were as a result of "oral orders" and usual "business practice" between the parties. 20. The Respondent in their submissions have denied having ever signed these two letters dated 30.05.2019 and 01.07.2019 and also mentioned that these are forged and fabricated letters. The Respondent has also denied the contents of the letters. Regarding the cheques issued by the Respondent for an amount of Rs. 4,16,18,466/- and Rs. 7,76,706/-, the Respondent mentions that these were advance payments for future transactions and has nothing to do with any past payment to the Petitioner. 21. Before going further in the matter this Bench would like to reiterate the definition of Operational Debt as per Section 5(21) which reads as under: - (21) "Operational Debt" means a claim in respect of the provision of goods or services including employment or a ....
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....learly demonstrated that all the 37 invoices have been paid. The specific details of the payment of these invoices as provided by the Respondent in reply to the rejoinder dated 19-02-2021 and not denied by the Petitioner clearly shows that such payment has been made. The details of such payment made is as under: 27. In fact, from the above running account it has been demonstrated by the Respondent that against a payment due of about Rs. 8,74,54,968.02/- they have made in the running account as on 23.01.2018 i.e., the date on which the last of the 37 vouchers were paid, a total payment of Rs. 9,50,93,520/- which is over and above the payment to the Petitioner against the 37 vouchers. The Bench also notes this fact that the Rs. 9,50,93,520/- have been made has not been denied by the Petitioner. 28. The Petitioner has also submitted the Ledger of the Respondent appearing in the books of accounts of Petitioner vide their affidavit dated 09.03.2020. This ledger pertains to the period from 01.04.2013 to 31.03.2020. It can be seen that even as per the Petitioner up to 23.01.2018 all the dues has been fully and completely paid by the Respondent. Here the Bench notes that after 23.01.....
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....documentary proof. 31. This Bench, therefore, concludes that there is nothing on record which shows that any outstanding Operational Debt as a claim in respect of provision 'supply of goods or services' by way of invoices or any documents has been proved by the Petitioner. In fact, all the 37 invoices which have been put on record by the Petitioner as due from the respondent has been fully paid and are not outstanding. The additional claim amount raised by way of other charges is frivolous, unsubstantiated, not based on any documentary proof and not even any invoices to that effect has been raised from the Petitioner. Further any claim arising out of Journal entries are unilateral adjustment claims and by no stretch of imagination can be said to be a claim arising out of supply of goods and services. 32. Regarding the two confirmatory letters from the Respondent i.e., 30.05.2019 and 01.07.2019 the Respondent has mentioned that it is a forged and fabricated document which has not been signed by them and its contents are also denied as false and baseless. The contention of the Respondent in light of the above that it had issued those two cheques of about Rs. 4.16 crores and abo....
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....-141 JPY Trading Our HS Invoice Sr. No Date Invoice amt. Import No. 11 12 HS/09/2014-15 HS/08 /2014-15 11/30/2014 1,535,218.10 Kanematsu Trading 12/8/2014 1,625,555.44 Kanematsu Import inv. No. E0283227- Date Currency 11/21/2014 Amount B/L No. Bill of Entry No. Page No. JPY 2,834,493.00 NGNHV-424-001-TÀI 7649258 22:195 Trading 4254 E0283227- 11/27/2014 4263 JPY 3,001,284.00 NGNHV-426-001-34, 769833512731 13 HS/01/2015-16 4/22/2015 3,513,535.48 Shenyang North 2015040203 4/2/2015 53,529.80 AMIGL150085844A 9224311 122-126 USD 14 HS/02/2015-16 7/15/2015 1,187,703.00 Sunrise Metal SMI/EX0317 6/12/2015 18,163.20 RTM0659052 2015006 119-121 USD Inc. 15 H5/03/2015-16 7/15/2015 1.172,363.00 Sunrise Metal SMI/EX0318 16 H5/04/2015-16 Inc 7/28/2015 2,861,711.00 Haneda Koson El-3012 Co. Ltd. 6/12/2015 USD 6/23/2015 17,894.40 RTM0659052 2017366 115-118 43,769.00 KMUM-016 2154245 USD 111-114 17 18 HS/06/2015-16 HS/05/2015-16 8/28/2015 2,929,039.00 Haneda Koson El-3012-2 Co. Ltd. 11/4/2015 2,948,859.....
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.... One Touch 7 33 HS/10/2016-17 3/9/2016 2,411,240.00 Jiangsu 2.02E+08 1/16/2017 31,824.00 6.18E+10 8921138 23-26 One Touch USD 34 34 HS/01/2017-18 El-3260 4/1/2017 4,136,905.00 Haneda 3/6/2017 55,795.55 KMUM27M 9158168 20-22 Koson Co. USD Ltd. 35 HS/02/2017-18 6/10/2017 5,301,089.00 Sandvik Heating Tech 1015571, 4/28/2017 1015572 USD 24,081.00 GOTS1711 2147508 12-19 43,033.50 & 5,535.00 1015573 36 GLSU/11/2017-18 1/23/2018 1,327,789.00 LOCAL SAL 10 9 37 GLSU/12/2017-18 1/23/2018 1,128,768.00 LOCAL SAL Document 3 ANNEXURE"2" Sr. No. Date Invoice No. Amount in Rs. Credit Period Interest 1 11.11.2013 HS/01/2013-14 2695545 NIL 18 2 18.01.2014 HS/02/2013-14 6422573 NIL 18 3 15.03.2014 HS/03/2013-14 2803472 NIL 18 Date Nature of Transaction 14-11-2013 Journal (LC Payment) 21-01-2014 Bank Payment 03-04-2014 Journal (LC Payment) Voucher No. Debit 53 2622056.00 BP-1020 148625.00 4 4592374.00 4 23.05.2014 HS/01/2014-15 792136 NIL NIL 11-04-2014 Journal (LC Payment) 6 ....
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....138 1000000.00 27 10.05.2016 HS/04/2016-17 1122035 NIL NIL 25-05-2017 Cheque Payment 422 1000000.00 28 01.07.2016 HS/05/2016-17 2953576 NIL NIL 05-06-2017 Journal (BP) 35 2888137.00 29 10.07.2016 HS/06/2016-17 1135086 NIL NIL 20-06-2017 Journal (BP) 57 1020473.00 30 22.08.2016 HS/07/2016-17 31 19.09.2016 HS/08/2016-17 4026755 NIL NIL 20-06-2017 Journal (BP) 58 2357168.00 4418270 NIL NIL 03-08-2017 Cheque Payment 1031 3800000.00 32 27.09.2016 HS/09/2016-17 1045930 NIL NIL 28-08-2017 Cheque Payment 1176 3800000.00 33 09.03.2017 HS/10/2016-17 2411240 365 NIL 17-10-2017 Cheque Payment 1642 4000000.00 34 01.04.2017 HS/01/2017-18 4136905 NIL NIL 05-01-2019 Bank Payment 5000000.00 35 10.06.2017 HS/02/2017-18 5301089 NIL NIL 05-01-2019 Bank Payment 5000000.00 36 23.01.2018 37 23.01.2018 GLSU/12/2017-18 Total GLSU/11/2017-18 1327789 NIL NIL 1128768 NIL 18% Total 87454968.02 95093520.00 Document 4 From :01-Apr-2017 To:31-Mar-2018 GLENGINEERIN....
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....ument 5 GL ENGINEERING IND. PVT.LTD. Ledger From :01-Apr-2017 27/06/17 To:31-Mar-2018 ICICI BANK LTD.(LCA/C) BEING AMOUNT PAID TO SUPREME HEATREATER FOR LO NO- 31 28/06/17 CHARGES FOR DELAYED PAYMENT 28/06/17 BEING CHARGES FOR LC 23 CHARGES FOR DELAYED PAYMENT BEING CHRAGES FOR LC21 28/06/17 CHARGES FOR DELAYED PAYMENT BEING CHARGES FOR LC22 29/06/17 CHARGES FOR DELAYED PAYMENT BEING FOR KHALAPUR EXP 29/06/17 CHARGES FOR DELAYED PAYMENT BEING RECD FOR VARIOUS LCS 30/06/17 CHARGES FOR DELAYED PAYMENT BEING RECD FOR LC 2 DIFF 30/06/17 CHARGES FOR DELAYED PAYMENT BEING CHARGES FOR LC 27 03/08/17 ICICI BANK LTD.(LCA/C) BEING AMOUNT REC FROM SUPREME HEATREATER 28/08/17 ICICI BANK LTD.(LCA/C) BEING REC FROM SUPREME HEATREATER 15/09/17 PURCHASE BEING 545 KGS MAT.FROM SUPREME VIDE BILLNO SL/1718/0117 17/10/17 ICICI BANK LTD.(LCA/C) BEING AMOUNT REC FROM SUPREME HEATREATER PVT.LTD 23/01/18 SALES A/C BEING BALE OF 22550 KGS TO SUPREME B/N 11 23/01/18 PURCHASE BEING 2965KGS FROM SUPREME B/N 306 23/01/18 PURCHASE BEING 381 KGS FROM SUPREME B/N 307 23/01/18 SALES A/C 23/01/18....