If no GST refund/ITC claim was included in the Section 8 Demand Notice or in Form 5 of Section 9 application by Operational Creditor, it cannot become a ground of default on which CIRP under IBC can be initiated – R.B. Singh and Anr. Vs. Rashmi Cement Ltd. and Anr. – NCLAT New Delhi

In this case, Corporate Debtor had made payment of the entire operational debt as claimed by Operational Creditor in Section 8 Demand Notice and debt as reflected in Form 5 of Section 9 application. OC had not sought any GST amount in the Section 8 demand notice or Section 9 application. Hon’ble NCLAT held that when the dues in terms of Form 3 and Form 5 have been cleared by CD, endeavours on the part of OC to seek initiation of CIRP by raising claims which do not find place in Form 3 and Form 5 filed by them, clearly manifests the intention of the OC to invoke the provision of IBC to enforce recovery of debts against the Corporate Debtor. Allowing such claims which never formed part of the claim of operational debt before the Adjudicating Authority to be considered at the appeal stage is not tenable. This cannot be commended as it militates against the spirit and essence of IBC.

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