Income Tax dues are operational debts under IBC
The Center has set up National Company Law Tribunal (NCLT) on June 1, 2016 to look into cases relating to insolvency and bankruptcy of companies, especially those that have a huge bank debt. It works like the courts of law in the country and determines the facts of each case and decides in accordance with principles of natural justice.
There were multiple petitions filed with NCLT benches by Tax
departments pertaining to treatment of their dues during the Corporate Insolvency Resolution Process (CIRP) under Insolvency and Bankruptcy Code (IBC), 2016.
Why
taxman is running to NCLT for relief?
·
Adjudicating Authority has granted
huge Income Tax benefits to the Respondent- ‘Synergies Castings Ltd.’ without
impleading the Appellant department as a Respondent to the said proceedings. ( No. 205 of 2017 - Synergies Dooray Automotive Ltd. &
Ors.)
·
The grievance of the tax department
is that the Income Tax liability/ demand in respect of the ‘Corporate Debtor’
was settled for 1% of the ‘crystallized demand’ against the mandate of the
Income Tax Act, 1961. (CA. No.671 of 2018-. Raj Oils Mills Ltd. & Ors)
·
‘Resolution Professional’ had not
intimated during the CIRP to attend the meeting of the ‘Committee of Creditors’
(CoC) and plan has been approved prejudicial to the rights of the Tax
departments, Further, the ‘Sales Tax’ and ‘Value Added Tax’ (VAT) do not come
within the meaning of ‘Operational Debt’ and thereby, ‘Sales Tax Department,
State of Maharashtra’ cannot be treated to be an ‘Operational Creditor’.( No. 309 of 2018- Sales Tax Department Vs M/s. Raj Oil
Mills Limited & Vs Parte Casters Pvt. Ltd. & Ors )
·
Reduction of VAT to 1% is against the
existing VAT law which say’s ‘liability under the Act to be the first
charge’ (559 of 2018- Sales Tax Department, State of Maharashtra
vs Phoenix Erectors Pvt. Ltd. & Ors)
Stand
taken by various tax departments:
·
The ‘Resolution Plan’ approved by the
Adjudicating Authority (which reduces the statutory dues liability) is in
contravention of provisions of Section 220 read with Section 156 of the Income
Tax Act, 1961
·
Similar plea has been taken by the
‘Sales Tax Department, State of Maharashtra’ by relying on Section 37(1) of the
‘Maharashtra Value Added Tax, 2002’
The
question taken by NCLAT from these appeals:
1.
Whether the ‘Income Tax’, ‘VAT’ or
other statutory dues, such as ‘Municipal Tax’, ‘Excise Duty’, etc. come within
the meaning of ‘Operational Debt’ or not?
2.
Whether the Central Government, the
State Government or the legal authority having statutory claim, come within the
meaning of ‘Operational Creditors’?
Legal
Provisions:
Sec 5(20) of IBC, 2016 “operational creditor”
means a person to whom an operational debt is owed and includes any person to
whom such debt has been legally assigned or transferred;
Sec 5(21) “operational debt” means a claim in respect of the provision of goods or services including employment or a debt in respect of the payment of dues arising under any law for the time being in force and payable to the Central Government, any State Government or any local authority;”
Court
decision
While considering tax liabilities, court says that when a Company
is operational and remains a going concern, only in such case, the statutory
liability, such as payment of Income Tax, VAT etc., will arise. As the ‘Income
Tax’, ‘VAT’ and other statutory dues arising out of the existing law, arose
when the Company was operational, NCLAT hold such statutory dues has direct
nexus with operation of the Company. For the said reason also hold that all
statutory dues including ‘Income Tax’, ‘VAT’ etc. come within the meaning of
‘Operational Debt’.
No interferences were made regarding earlier orders of Adjudication Authority on plea that “tax department is not made party to the proceedings” or their liabilities are settled at very low/ negligible rate.
Operational
debtors’ position in IBC
·
Rights of operational creditors/ Tax
Dept in CIRP: Operational creditors are mute spectators in CIRP process and
they don’t have any say in the committee of creditors (CoC) which constitute
all the financial creditors. In case operational creditors having debts 1/10th
in value of total debts, they can attend CoC meeting but can’t vote. There is
one exception, when there are no financial creditors, in that case CoC will
consist of operational creditors.
·
Distribution of Assets: As per sec 53
of IBC, in case of distribution of assets as per order of priority payment,
financial creditor will get their dues in priority over operational creditors
debts. Government dues (state & Centre) are mentioned separately and ranked
4th just above other operational creditors.
·
Resolution plan pay-outs: As per
section 30(2)(b) of IBC, a Resolution plan should provide for the payment of
the debts of operational creditors which shall not be less than the amount to
be paid to them in the event of a liquidation of the corporate debtor which is
in most cases is almost Nil. Since resolution plan must take care of interest
of all stakeholders, small amount is kept for settling the dues of operational
creditors including government dues without giving preference to one over
another.
·
Overriding effect of IBC: As per Sec
238 of IBC, 2016, the provisions of this code has overriding effect on anything
inconsistence contained in any other law for the time being in force, hence
even if various tax acts specify recovery mechanism of outstanding tax dues same
will not be possible if company in is CIRP process.
Conclusion
At the
time of liquidation government dues are specifically mentioned and are
considered first amongst other operational creditors and ranked 4th
in the waterfall payment, whereas in resolution plan they are treated at par
with operational creditor and no longer have any preference over other
operation debts.
If income
tax or sales tax dues are long outstanding from a company, tax departments must
be more vigilant about their recovers well within the time before a company is
dragged into Insolvency Process, once process is started, they take a back seat
and recovery chances of outstanding dues drastically reduces.
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