Tax laws are framed under constitutional regime to secure the budgetary requirements of the government. Business entities are the milking cows for the government sourcing a continuous flow of revenue, therefore it is important to have proper framework to deal with health issues of such business entities. Effective resolution of sick entities is must for healthy economy of the country, in the long run they give benefits to all stakeholders including government.
Laws dealing with sick entities were completely overhauled with the introduction of the Insolvency and Bankruptcy Code, 2016 (“Code” or “IBC” or “Law of 2016”) which in contrary to previous laws made focus on resolution of sick entities instead of earlier regime of restructuring, closure and sale of assets, it is pertinent to note that the law of 2016 was not a recovery mechanism but a medicine sanjeevani for the business nearing death bed to stand again, it would not be wrong to state that law of 2016 is also an intermittent treatment for entities diagnosed to have near illness to allow them to be treated/ resolved as a going concern.
The Code proved to be a complete reformation in the Indian Insolvency regime. When the Code came into force, there was a serious lack of a law that would provide for an effective and time bound Insolvency resolution of an entity, the erstwhile laws focused on direct Liquidation without having any scope of rehabilitation. Liquidation of an entity involves the cessation of its business, the realization of its assets, the payment of its debts and liabilities, and the distribution of any remaining assets to the members. At the end of the liquidation process, the entity ceases to exist. With the coming of the Code, there was a shift from liquidation to Insolvency Resolution, now the law aims at preserving the going concern value instead of disposal of assets on piece meal basis. The underlying principle behind restructuring or reorganization proceedings is that a business may be worth a lot more if preserved, or even sold as a going concern than if the parts are sold off piecemeal. In other words, there is a surplus of going-concern value over liquidation value. Since going-concern value may be a lot more than the value of a business on a break-up basis, reorganization proceedings are designed to keep the business alive so that this additional value can be captured. The Code came with the noble objective of bringing in place a regime for reorganization and insolvency resolution of corporate persons, partnership firms and individuals in a time bound manner for maximization of value of assets of such persons, to promote entrepreneurship, availability of credit and balance the interests of all the stakeholders including alteration in the order of priority of payment of Government dues.
The provisions contained under the Code (such as initiation on occurrence of default, moratorium, time bound process, Insolvency Professional led process, creditor in control, liquidation to occur only when resolution fails etc.) have provided an excellent framework to match its implementation with its objects.
From the view of revenue side of government law of 2016 ensures continuity of healthy entities in economy making far better position than in a recovery intended legal regime, because a healthy entity maintains its revenue as well as the revenues of its creditors as well as debtors, which is highly entangled web, where if one entity dies it causes death of various stakeholders.
Triangular mechanism of Law of 2016
Tax laws are in their very nature based on recovery mechanism which make them tough to run on parallel track with non-recovery law of 2016. Although, law of 2016 in long run gives monetary benefits to all stakeholders but on initial level restrains all stakeholders from deriving benefits out of stressed business. Law of 2016 has triangle solution or three-point solution to work in harmonious manner with other applicable laws.
Point No. 1 of triangle: Moratorium
The purpose of moratorium under IBC is to provide relief to the corporate debtor through standstill period during which its assets are protected from dissipation or diminishment. The moratorium is intended to restrain proceedings in relation to recovery, however, assessment proceedings cannot be said as recovery proceedings in its entirety which cannot be per se said to be “against” the debtor during CIRP. Section 14 (1)(a) provides that:
- 14. (1) Subject to provisions of sub-sections (2) and (3), on the insolvency commencement date, the Adjudicating Authority shall by order declare moratorium for prohibiting all of the following, namely:—
(a) the institution of suits or continuation of pending suits or proceedings against the corporate debtor including execution of any judgment, decree or order in any court of law, tribunal, arbitration panel or other authority;
The above provision has three restrictions:
- Restriction on institution of suits,
- Restriction on continuation of pending suits,
- Restriction on proceedings against the corporate debtor of the nature of execution of any judgment, decree or order.
The term “including” in section 14(1)(a) of the code is clarificatory of the scope and ambit of the term “proceedings” would be restricted to the nature of action that follows it i.e. execution against assets of the corporate debtor, the use of narrower term “against the corporate debtor” in section 14(1)(a) as opposed to the wider phase “by or against the corporate debtor” used in section 33(5) of the code further makes it evident that section 14(1)(a) is intended to have restrictive meaning and applicability. The assessment proceedings are only aimed at giving finality to the assessment, which, per se, is a preliminary step, and may or may not lead to a recovery against the debtor, recovery is what IBC actually bars. Therefore, tax authorities may undertake assessment proceedings limited to the extent of finalizing assessment only and not of recovering any demand.
Point No. 2 of triangle: Clean Slate
As stated, before law of 2016 is a medicine sanjeevani of resolution for unhealthy entities, therefore it also ensures that symptoms of disease do not reoccur and mandates final closure of all past issues, symptoms, disease, etc. making a rebirth of business entities free from all past problems. However, it does not absolve criminal liabilities of officer in charge and/or any liability personal and distinct from stressed entity. Section 31(1) of the IBC stipulates that
- “31. (1) If the Adjudicating Authority is satisfied that the resolution plan as approved by the committee of creditors under sub-section (4) of section 30 meets the requirements as referred to in sub-section
- (2) of section 30, it shall by order approve the resolution plan which shall be binding on the corporate debtor and its employees, members, creditors, including the Central Government, any State Government or any local authority to whom a debt in respect of the payment of dues arising under any law for the time being in force, such as authorities to whom statutory dues are owed, guarantors and other stakeholders involved in the resolution plan.
In the matter of Ultra Tech 1, the Rajasthan High Court while quashing the notices of tax authorities had held that the amount specified in the approved resolution plan is final and binding on all parties, irrespective of the fact whether the claimant has been heard by the resolution professional or the Committee of Creditors.
Clean slate theory also deals with criminal offences through section 32A intended to provide resolution applicant with company free from mischief of past. Section 32A provides with retrospective effect for the prevention of any prosecution, attachment, seizure, action, confiscation or retention.
The Hon’ble Supreme Court in the judgement of Ajay Kumar Radheshyam Goenka v. Tourism Finance Corporation of India Ltd. 2 has given a notable finding on the issue of effect of approval of a resolution plan on the criminal proceedings like those under Negotiable Instruments Act which have not be barred under the moratorium. The Hon’ble Supreme Court has categorically opined that:
- After passing of the resolution plan under Section 31 of the IBC by the adjudicating authority and in the light of the provisions of Section 32A of the IBC, the criminal proceedings under Section 138 of the NI Act will stand terminated only in relation to the corporate debtor if the same was taken over by a new management.
- Section 138 proceedings in relation to the signatories/directors who are liable/ covered by the two provisos to Section 32A(1) would continue in accordance with law.
Point No. 3 of triangle: Overriding Effect
Section 238 of the code gives overriding effect to the law of 2016 over any other contrary provisions in any other laws.
238. The provisions of this Code shall have effect, notwithstanding anything inconsistent therewith contained in any other law for the time being in force or any instrument having effect by virtue of any such law.
This position of law has been cleared by Hon’ble Supreme court in various cases. In Principal Commissioner of Income Tax v. Monnet Ispat and Energy Ltd. 3 , the Hon’ble Supreme court held that the provisions of IBC will have override anything inconsistent contained in any other law including Income Tax laws as well in case of any inconsistency with the provisions of IBC. Thus, the court has time and again given priority to IBC over any other law inconsistent with the provisions of IBC. Therefore, law of 2016 has assumed a role of superiority which is in consonance with objective of giving importance to resolution over all other methods.
Priority of Tax Dues
In IBC the priority of payment is given to the Secured Creditors. The term secured creditor is defined in the Section 3(30) of the code which states that, “Secured creditors means any creditor in favor of whom the security interest is created”. It is pertinent to understand that the law makers have specifically used the term “secured creditor” instead of “secured financial creditors” in Section 53, thereby considering that non-financial creditors can also become secured creditor under IBC.
However, in various tax laws if any amount is due towards the fulfilling of tax liabilities, the tax authorities are given the first charge over the unpaid tax dues. This become major bone of contention as to tax dues are to be dealt as operational dues or to be treated as of first charge as secured creditors. It is pertinent to note that direct tax and indirect tax has certain difference on nature of liability, as direct tax are squeezed from the earnings of the business while indirect tax is money which business has already collected on behalf of government. In the case of State of Maharashtra v. New Phaltan Sugar Works Ltd & Anr. 4 , the Hon’ble NCLAT held that the first charge created by the provisions of Maharashtra VAT, 2002 is eclipsed by the provisions of the IBC and determined that the dues from statutory authority are to be considered as due from the Operational Creditors. The Dues of GST or other indirect taxes were considered as operational debt in the IBC. Although this stance is being adjudicated multiple times by the different courts and NCLT to clear the position of treatment of Indirect taxes as operational debts or to treat them otherwise based on the specific facts and circumstances of different cases. The general interpretation of the law states the overriding effect of the IBC and the resolution plan approved by the committee of creditors over the GST laws.
In Sundaresh Bhatt v. Central Board of Indirect Taxes and Customs 5 , the Court had held that the IBC has an overriding effect on Customs Act (which too, creates a statutory charge in favour of the customs authorities). Similarly, in Principal Commissioner of Income Tax v. Monnet Ispat and Energy Limited 6 , the SC relied on Dena Bank v. Bhikhabhai Prabhudas Parekh & Co. 7 , and unequivocally ruled that income-tax dues, being in the nature of Crown debts, do not take precedence even over secured creditors, who are private persons. Notably, in Dena Bank, the SC had held that the common law doctrine of priority of crown debts would not extend to providing preference to crown debts over secured private debts. On similar lines, in Leo Edibles and Fats Limited v. the Tax Recovery Officer 8, the Andhra Pradesh High Court has clearly ruled that income tax authorities cannot be equated to secured creditors, and thus cannot claim priority.
The jurisprudence regarding treatment of statutory dues got transformed pursuant to the judgement of Hon’ble Supreme Court in State Tax Officer v. Rainbow Papers Limited 9 , the Hon’ble Supreme Court defined the status of tax dues within the effect of triangle, twist the steering of the ship in dynamic ocean of IBC dealing with treatment of government dues in the IBC. Supreme Court held that a Resolution Plan which ignores the statutory demands payable to any State Government or a legal authority, altogether, is liable to be rejected. The Hon’ble court was dealing with Section 48 of the Gujarat Value Added Tax Act which was held to be not contrary or inconsistent with any provisions of the IBC, dealing with the question whether the provisions of IBC, especially section 53, overrides section 48 of the Gujarat Value Added Tax Act. Section 48 of the GVAT is a non-obstante clause and creates a statutory first charge on the property of the dealer in favour of tax authorities against any amount payable by the dealer on account of tax, interest or penalty for which it is liable to pay to the Government.
Important findings of the Hon’ble Supreme Court are reproduced hereunder:
- “51. If the established facts and circumstances require discretion to be exercised in a particular way, discretion has to be exercised in that way. If a Resolution Plan is ex facie not in conformity with law and/ or the provisions of IBC and/or the Rules and Regulations framed thereunder, the Resolution would have to be rejected. It is also a well settled principle of interpretation that the expression “may”, if circumstances so demand can be construed as “Shall”.
- 52. If the Resolution Plan ignores the statutory demands payable to any State Government or a legal authority, altogether, the Adjudicating Authority is bound to reject the Resolution Plan.
- 53. In other words, if a company is unable to pay its debts, which should include its statutory dues to the Government and/or other authorities and there is no plan which contemplates dissipation of those debts in a phased manner, uniform proportional reduction, the company would necessarily have to be liquidated and its assets sold and distributed in the manner stipulated in Section 53 of the IBC.
- 54. In our considered view, the Committee of Creditors, which might include financial institutions and other financial creditors, cannot secure their own dues at the cost of statutory dues owed to any Government/ or Governmental Authority or for that matter, any other dues.
- 57. As observed above, the State is a secured creditor under the GVAT Act. Section 3(30) of the IBC defines secured creditor to mean a creditor in favour of whom security interest is credited. such security interest could be created by operation of law. The definition of secured creditor in the IBC does not exclude any Government or Governmental Authority.”
The Hon’ble court held that if the resolution plan excludes statutory dues payable to government or a government authority, it cannot be said to be in conformity to the provisions of IBC and, as such, not binding on the government. Further, section 48 of the GVAT is not inconsistent with the IBC and, hence, it was held that the IBC does not override the GVAT. The Hon’ble Court went on to rule that by virtue of the ‘security interest’ created in favour of the State under GVAT, the State is a ‘secured creditor’ according to the definition in the IBC.
However, the judgement of Rainbow Papers cannot be read to mean that any tax due, if its statute provides for first charge over the property of the assessee, will be treated as a secured debt. One has to examine the facts of this judgement keeping in mind the provisions contained under IBC and the relevant tax law. In support of this preposition, we should keep in mind the following:
- By virtue of Section 238 of the IBC, the provisions under the tax laws even if provide for a first charge, will not operate over and above the IBC, if their operation result in inconsistency with the provisions of IBC.
- For instance, Section 82 of the CGST Act, 2017 clearly provides that in proceedings under IBC the GST dues will not be a first charge over the assets of the Corporate Debtor: “Notwithstanding anything to the contrary contained in any law for the time being in force, save as otherwise provided in the Insolvency and Bankruptcy Code, 2016, any amount payable by a taxable person or any other person on account of tax, interest or penalty which he is liable to pay to the Government shall be a first charge on the property of such taxable person or such person.”
- Similar to the CGST Act, 2017, the Section 88 of the Finance Act 1994 also provides for the service tax dues to not be a first charge in cases under certain statutes similarly situated to the IBC: “Notwithstanding anything to the contrary contained in any Central Act or State Act, any amount of tax, penalty, interest, or any other sum payable by an assessee or any other person under this Chapter, shall, save as otherwise provided in section 529A of the Companies Act, 1956 (1 of 1956) and the Recovery of Debts Due to Banks and the Financial Institutions Act, 1993 (51 of 1993) and the Securitisation and Reconstruction of Financial Assets and the Enforcement of Security Interest Act, 2002 (54 of 32 2002), be the first charge on the property of the assessee or the person as the case may be.”
- The Master Circular on Recovery and Write-Off of Arrears of Revenue dated 19.01.2022 of the Ministry of Finance, in respect of recovery of taxes as first charge provides as under: “5.2…Though the Customs, Central Excise, Service tax and GST enactments have provisions for the liability to be the first charge on property but this charge is subject to the provisions of Section 529 A of the Companies Act, 1956 (Section 326 of Companies Act, 2013), the Recovery of Debts due to Banks and the Financial Institutions Act, 1993 (RDB Act), the Securitisation and Reconstruction of Financial Assets and the Enforcement of Security Interest Act, 2002 (SARFAESI Act) and the Insolvency and Bankruptcy Code, 2016.”
The findings of Hon’ble Supreme Court in Rainbow Papers, cannot be read in isolation, one has to also keep in mind the objectives behind enactment of IBC and the facts in Rainbow Papers. In this relation it is imperative to see what Bankruptcy Law Reforms Committee had to say in relation to the central and state government dues:
“The Committee has recommended to keep the right of the Central and State Government in the distribution waterfall in liquidation at a priority below the unsecured financial creditors in addition to all kinds of secured creditors for promoting the availability of credit and developing a market for unsecured financing (including the development of bond markets). In the long run, this would increase the availability of finance, reduce the cost of capital, promote entrepreneurship and lead to faster economic growth. The government also will be the beneficiary of this process as economic growth will increase revenues. Further, efficiency enhancement and consequent greater value capture through the proposed insolvency regime will bring in additional gains to both the economy and the exchequer.”
On January 18, 2023, Ministry of Corporate Affairs (MCA) invited public comments on various amendments/changes being considered to the Insolvency and Bankruptcy Code, 2016. One of the public comments obtained concerns the issue raised pursuant to the judgment of Rainbow Papers. The relevant portion is as under:
- “14. Clarity in the treatment of security interests created by statutes
- 14.1. Section 3 (30) defines a ‘secured creditor’ as a creditor in favour of whom security interest is created. In State Tax Officer v. Rainbow Papers Limited (Civil Appeal No. 1661 of 2020), the Supreme Court interpreted the definition of ‘secured creditor’ to hold that any government or governmental authority shall be a secured creditor as the charge created by a statutory law can be considered as a ‘security interest’. The definition of ‘security interest’ under the Code means that a right, title or interest or a claim to property, created in favour of, or provided for a secured creditor by a transaction, which secures payment of performance of an obligation. It is intended to be restricted to ‘transactions’, which means that the security interest should be created pursuant to an agreement on the part of the asset holder while giving rights to the other party. Further, ‘transaction’, as defined under section 3 (33), includes an agreement or arrangement in writing to transfer assets, funds, goods, or services from or to the CD. Thus, it is clear that the concept of security interest was intended to cover a consensual transaction between parties (and not any similar interest created through mere operation of a statute).
- 14.2. Thus, it is being considered that all debts owed to Central Government and the State Government, irrespective of whether they are secured creditors pursuant to a security interest created by a mere operation of statute, shall be treated equally with other unsecured creditors (see para 13.1). Further, it will be clarified that only where the security interest is created pursuant to a transaction of the Central Government or a State Government with CD, the Government in question will continue to be treated as a secured creditor in the order of priority”
Therefore, there is a possibility that the lawmakers may bring in necessary amendments to clarify the position in law that has come in existence pursuant to the judgment in Rainbow Papers.
Other important issues under Income Tax:
Writeback of loans/creditors: The tax authority has raised the issue that waiver of the loan shall be taxable either under section 41(1) or 28(iv) of the IT Act. In the matter of Mahindra & Mahindra Ltd. 10, the Hon’ble Supreme Court held that section 28(iv) is not applicable as the amount waived is receipt in nature of cash/ money and similarly section 41(1) is also not applicable as waiver of loan does not amount to cessation of trading liability and the assessee has not claimed deduction in the earlier years. In the matter of JSW Steel Limited 11 , ITAT Mumbai held that a receipt which could never enter the stream of taxation either under the normal provisions of the Act or under 115JB, then the said receipt neither constitutes profit nor revenue nor income nor any kind of gain which needs to be included in the net profit.
Impact of Change of Shareholding on Carryforward Losses:
As per Section 79 of the IT Act, the benefit to carry forward unabsorbed business loss is lost in a scenario if the shareholding of a closely held company changes by more than 49% in a previous year as compared to the year in which the loss was incurred. The IT Act allows companies under IBC to carry forward losses where the change in shareholding is pursuant to an approved resolution plan. But a reasonable opportunity of being heard is to be given to the jurisdictional PCIT. Section 30(2) of the IBC requires a plan presented for approval before the NCLT to be in compliance with provisions of all applicable laws. Moreover, Section 79 of IT Act is not inconsistent with IBC therefore will be applicable parallelly to the provisions of IBC. Therefore, a compliance under Section 79 of IT Act of giving notice of hearing is required in approval of resolution plan by NCLT.
Transfer/Acquisition of shares of Corporate Debtor at Price Lesser than Fair Market Value
Section 56(2)(x) provides for taxation in the hands of the recipient of the property (securities and shares are covered under definition of the property). Section 50CA provides for taxation arising upon transfer of unquoted shares in the hands of Transferor. Difference between the FMV and the actual consideration is charged to tax in the hand recipient of the property under Section 56(2) (x). As per Section 50CA, if the shares are transferred at consideration less than FMV, FMV is deemed to be the Full Value of Consideration. These provisions of Section 50CA and Section 56(2)(x) are still applicable on IBC transactions. However, CBDT has powers to relax the same but no notification till date.
Exemption from MAT Provisions
Section 115JB allows deduction of lower of (a) unabsorbed depreciation and (b) loss brought forward while calculating Book Profit for the purposes of MAT. However, it provides for aggregate deduction of unabsorbed depreciation and loss brought forward from Book Profit, in case of a company under CIRP. Instead of lower of Business Loss/ UAD under IBC aggregate amount is allowed to be set-off against book profit.
Section 80 provides that if a taxpayer fails to file ROI within the specitied due date, the losses of the relevant previous year shall lapse and not be allowed to be carried forward. As per amendment made to section 140 by Finance Act 2018 for companies under IBC, RP would have the right to sign the return. Difficulties may arise for companies undergoing CIRP for filing of ROI within the statutory due dates.
Exception to certain void transfers under Section 281 of the IT Act
Section 281 of IT Act enables Income Tax Department to recover outstanding tax dues pending on date of transfer or arising from proceedings pending on date of transfer by treating transfer of assets (including securities) as void. Therefore, an ambiguity to a certain extent prevails with regards to the applicability of Section 281 on IBC matters. However in light of various judicial pronouncements and effect of Section 238 of IBC, IBC should override Section 281 of the Act and therefore it is imperative that specific exemptions are brought in regarding non- applicability of Section 281 on resolutions under IBC with a view to provide more certainty on the tax position of the corporate debtor to the resolutions applicants/bidder.
Applicability of GAAR provisions on transactions under CIRP
Resolution plan approved as part of CIRP is a process driven under a statute, with the commercial rationale of revival of the entity under insolvency. Therefore, GAAR provisions should not be applicable to a restructuring undertaking through an NCLT approved resolution plan, as primary objective of the same is to revive the corporate debtor, and not to obtain any tax benefits.
The Tax Department vide a Circular issued in 2017 had provided that where the court has explicitly and adequately considered the tax implication while sanctioning an arrangement, GAAR will not apply to such arrangements. However, in practice the NCLT generally does not analyse or considers tax implications while approving a resolution plan and therefore the 2017 circular may not provide the acquirer any protection against GAAR.
Therefore, with a view to safeguard the acquirers from any unanticipated tax implications, it is imperative that the lawmakers consider to bring about a specific exemption from GAAR provisions with respect to acquisition as per the resolution plan.
All of the above cited issues in the Act could lead to tax implications either on the transferor or transferee, or both, making the resolution plan expensive and unviable. To make arrangements under CIRP more attractive, financially viable and seamless, necessary changes should be made under direct and indirect tax law and stamp duty laws to provide both the corporate debtor and the acquirer protection against any unforeseen and therefore unaccounted tax implication and cost overruns. Moreover, the NCLTs while examining a resolution plan for approval should consider compliance with GAAR provisions as a mandatory compliance under Section 30(2) of the IBC.
The objective of IBC of gaining effective resolution should be given highest importance, tax authorities should aim on faster and effective business revival which will enhance government revenue with increased turnover, past tax dues should not become a hurdle for future gold mine, Rainbow judgement has given higher responsibility to tax authorities to examine resolution plan balancing on future tax benefits, this judgment has increased burden of responsibility on the shoulder of tax authorities. IBC is an efficient mechanism focusing more on treating and bringing healthy business entity which has benefits for all stakeholders and economy at large. The Hon’ble Courts have time and again stressed on this very objective of IBC while dealing on complex issues. As regards the relief under tax laws while resolution of company under IBC, since the IBC gives liberty to a resolution applicant to incorporate every possible measure for effective resolution, in common practices it is seen that the resolution applicants seek various reliefs under the tax laws (i.e. further 8 years period for carry forward of losses/ accumulated depreciation, benefits from tax liability under MAT and in writeback of loans, etc.), however due to lack of a clear position in this regard there have been contrary stands been taken by various NCLTs in granting such reliefs.
Few issues as regards assessment of company under CIRP/liquidation under Income Tax Act which require further clarity are – (1) Liability in case of assessment of tax liability for the period prior to insolvency commencement date is done post approval of resolution plan, for which a claim couldn’t be submitted by the department during the pendency of process and (2) Liability in case of assessment of tax liability for the period during which CIRP/ liquidation was ongoing for which a claim couldn’t be submitted by the department during the pendency of process.
Further, as regards tax due to be a first charge over assets of the company under CIRP/ Liquidation under IBC, the charge should have come into place as on the insolvency commencement date by operation of law, i.e. by way of recovery proceedings already been initiated against the company. In case the government department(s) have not initiated any process for recovery against the corporate debtor or have not made any such act that triggers the event of them securing a charge over the assets of the Corporate Debtor by operation of law, their debts will not be considered as a first charge and will not have a primacy as a secured debt. This situation will get further clarified with the amendments coming in pursuant to the public comments obtained in January 2023.
- [DB Sales Tax Ref/Rev No. 9/2021, Rajasthan High Court]
- [Criminal Appeal No. 170 of 2023, Supreme Court]
- [SLP (C) No. 6483/2018, Supreme Court]
- [Company Appeal (AT) (Ins) 155 of 2022, NCLAT]
- [Civil Appeal 7667 of 2021, Supreme Court]
- [Civil Appeal No. 2853 of 1993, Supreme Court]
- [WP No. 8560 of 2018, Andhra Pradesh High Court]
- [Civil Appeal No. 1661 of 2020, Supreme Court]
- [(2018) 404 ITR 1]
- [(2017) 82 taxmann.com 210]