TaxTMI 
TaxTMI 
2021 (7) TMI 1091
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....AL MEMBER 1. The present appeal has been filed by 'Appellant' - 'Anoop Kumar Chhawchharia' Director & Shareholder of Corporate Debtor - 'M/s. ANR International Pvt. Ltd.,' under Section 61 of the 'Insolvency and Bankruptcy Code, 2016' (in short 'Code') against the order dated 19.04.2021 passed by the 'Adjudicating Authority' (National Company Law Tribunal), New Delhi Bench - VI in CP(IB) No.1623/ND/2019. 2. The Adjudicating Authority has initiated 'Corporate Insolvency Resolution Process' (CIRP) based on the observation that the 'Operational Creditor' has elaborately explained the faulty procedure followed by the Corporate Debtor in sending the invoices in a different company address, lack of proof of delivery of material, sending the material on a single day which is humanly impossible, using the cranes instead of trucks and offences committed by the 'Corporate Debtor' in the CGST Act which amounts to committing fraud on the Operational Creditor besides misleading the Tribunal. 3. The corporate debtor / Appellant has submitted the followings: a. The Corporate Debtor is a profit making and a solvent company with a net worth of Rs. 72 Crores and a turnover of Rs. 4....
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....tional Creditor has misrepresented and suppressed the material fact and has cited Hon'ble Apex Court and various High Court's judgment. f. The Appellant has also raised the issue that the operational creditor was silent for two and half year of pursuing its dues, had it been due and has not provided any written communication of pursuing of payment and only confirmation of statement of account till 2017 has been submitted for his dues whereas our supply was made in June, 2018 and they are not shown any confirmation of balances after June, 2018. g. He has also presented before this Appellate Tribunal that payment made by the Corporate Debtor to transporter and explained that truck number was wrong in only one truck out of six trucks and that was due to typographical error. 4. The Respondents have submitted the followings: a. The Respondents have vehemently opposed that the debt is due, defaulted and admitted by the corporate debtor and supply made by the corporate debtor from July to September, 2017. The case is fit for admission under section 9 of the Code and corporate debtor has issued demand notice under section 8 of the Code. Thereafter, the Corpora....
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....d by the invoices, delivery challans and GST payments. Truck Number - one of the consignment number is not correct and all the invoices and deliveries are of one day. Simply making GST payment cannot prove that they have supplied the material to the other side. The Corporate Debtor has never raised that they have due recoverable from the operational creditor prior to the issue of the reply to the demand notice. 6. We understand that Rule 46 of CGST Rules, R/w Rule 48 of CGST Rules permits manual GSTIN Number. For the issues is that the Corporate Debtor invoiced is not supported by the purchase order nor a confirmation of account at a later date from the operational creditor. 7. The Corporate Debtor is a healthy company, not substantiated by the corresponding balance sheet of the company as they have not filed the same nor alone this cannot be a sole basis to substantiate that it does not require to go to CIRP. High turnover with positive net worth may reflect good fund flow but it does not substantiate a good cash flow. Here we would to like to refer the Hon'ble Apex Court Judgment in Mobilox Innovations Pvt. Ltd Vs. Kirusa Software Private Limited in Civil Appeal No. 9405 of....
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.... * In order to re-instate the debt enforcement function of the statutory demand test for winding up, if a company fails to pay an undisputed debt of a prescribed value as per Section 271(2) (a), the creditor should be entitled to a winding up order irrespective of whether it is insolvent (in commercial or balance sheet terms) or not. Further, the NCLT should have the discretion to refer the company for rehabilitation under Chapter XIX before making a winding up order on such ground, if the company appears to be prima facie viable. Further, in order to prevent abuse of the provision by creditors and ensure that it is not used to force debtor companies to settle disputed debts, the provision should specify the factors that the NCLT may take into account to determine whether the debt under consideration is disputed or not. As laid down by the courts, a petition may be dismissed if the debt in question is bona fide disputed, i.e., where the following conditions are satisfied: (i) the defence of the debtor company is genuine, substantial and in good faith; (ii) the defence is likely to succeed on a point of law; and (iii) the debtor company adduces prima facie proof of the facts on whi....