I. Case Reference
| Case Citation | : | (2022) ibclaw.in 126 NCLAT |
| Case Name | : | Transit Geo System Integrators Pvt. Ltd. Vs. Stahl Tecniks Pvt. Ltd. |
| Corporate Debtor | : | M/s Stahl Tecniks Pvt. Ltd. |
| Appeal No. | : | Comp. App. (AT) (Ins.) No. 106 of 2022 |
| Judgment Date | : | 03-Feb-22 |
| Court/Bench | : | NCLAT New Delhi |
| Present for Appellant(s) | : | Mr. Dhiren R. Dave, Advocate. |
| Chairperson | : | Mr. Justice Ashok Bhushan |
| Member (Technical) | : | Dr. Ashok Kumar Mishra |
| Member (Technical) | : | Dr. Alok Srivastava |
| Impugned Order | : | (2021) ibclaw.in 731 NCLT, upheld |
II. Brief about the decision
An application was filed by the Appellant under Section 9 claiming recovery of the amount from Corporate Debtor due to reason that Form C was not supplied to the Appellant and due to which tax liability was fastened on the Appellant by the Sales Tax assessment order. It is submitted that the amount which was claimed falls within the definition of Section 5(21) of the Code and it was operational debt. The Adjudicating Authority has rejected the Application.
NCLAT holds that Section 9 proceedings are not envisaged for such kind of claims. It is well settled and time and again repeated by the Hon’ble Supreme Court in Swiss Ribbons Pvt. Ltd. Vs. Union of India [2019] ibclaw.in 03 SC and other cases that IBC is not a recovery proceeding. In event, if the Appellant has any claim against the Corporate Debtor regarding sales tax dues, it is open for them to take such proceeding as may be permissible but present was not a case where Section 9 proceedings ought to have been initiated.
III. Full text of the judgment
ORDER
(Through Virtual Mode)
03.02.2022: Heard Shri Dhiren R. Dave, Learned Counsel for the Appellant.
2. This Appeal has been filed against the order passed by the Adjudicating Authority (National Company Law Tribunal), New Delhi Bench, Court-II dated 20.10.2021 by which Application filed by the Appellant under Section 9 of the Code has been rejected. The Application was filed by the Appellant under Section 9 claiming recovery of the amount from Corporate Debtor due to reason that Form C was not supplied to the Appellant and due to which tax liability was fastened on the Appellant by the Sales Tax assessment order dated 28.03.2017. It is submitted that the amount which was claimed falls within the definition of Section 5(21) of the Code and it was operational debt. The Adjudicating Authority has rejected the Application.
3. In the Sales Tax assessment order, liability was fastened against the Appellant by assessment order dated 28.03.2017 under which he has to make the payment to Sales Tax due. The Application under Section 9 by the Appellant was nothing but claim of recovery of difference between concessional payment and payment of Sales Tax which has made under the assessment order.
4. We are of the view that Section 9 proceedings are not envisaged for such kind of claims. It is well settled and time and again repeated by the Hon’ble Supreme Court in “Swiss Ribbons Pvt. Ltd. Vs. Union of India- (2019) 4 SCC 17” and other cases that IBC is not a recovery proceeding. In event, if the Appellant has any claim against the Corporate Debtor regarding sales tax dues, it is open for them to take such proceeding as may be permissible but present was not a case where Section 9 proceedings ought to have been initiated.
5. We do not find any error in the impugned order of the Adjudicating Authority rejecting the Application. The Appeal is dismissed.
[Justice Ashok Bhushan]
Chairperson
[Dr. Ashok Kumar Mishra]
Member (Technical)
[Dr. Alok Srivastava]
Member (Technical)
Click on below button to search similar judgments:
Follow for daily updates: