Veep to inaugurate Conference on ‘Co-operative Federalism and Law Reforms' (See 'Corp Brief') A&C - Arbitrator has wide discretion u/s 31(7) of Arbitration Act to award pre-reference, pendente lite, and post-award interest at such rate as it deems reasonable: HC (See 'Legal Desk') Chouhan to launch 'Khet Bachao Abhiyan - Rabi 2026' today (See 'Corp Brief') IBC - Right to withdraw CIRP application u/s 12A is governed by provisions in force on date when complete Form FA is submitted to IRP: NCLT (See 'Legal Desk') CSIR-NIScPR successfully concludes Two-Week Skill Training Programme on Library Automation (See 'Corp Brief') India, Saudi Arabia discuss bilateral Electrical Interconnection Initiative (See 'Corp Brief') DRI seizes 13 kg foreign-origin gold worth around Rs. 19.41 crore (See 'Corp Brief') PMLA - Statutory twin conditions under Section 45 of the Act can override the fundamental constitutional safeguards of personal liberty under Article 21 of the Constitution: SC (See 'Legal Desk') Saturation Campaign of Financial Inclusion to cover 2.7 Lakh Gram Panchayats and ULBs (See 'Corp Brief') DRI seizes 7 kg amphetamine and 3kg cocaine (See 'Corp Brief') IBC - Mere reason that some facts may have already been into existence but continue to exist would not mean that the application u/s 9 becomes retrospective: HC (See 'Legal Desk') Uttarakhand becomes first State to export Trout to Nepal (See 'Corp Brief') BIS organises Interactive Sessions to promote AYUSH with Quality Standards (See 'Corp Brief') PMLA - In absence of money trail connecting attached properties with proceeds of crime, subject properties cannot be attached merely as properties of equivalent value: Tribunal (See 'Legal Desk') Clarification on Legislative Developments concerning Govt's stake in IDBI (See 'Corp Brief') SEBI - The fact that criminal proceedings were subsequently initiated against appellants does not confer sanction under Section 15T of the SEBI Act to reopen a penalty order which attained finality: SAT (See 'Legal Desk') Efforts underway to develop one lakh young leaders: Mandaviya (See 'Corp Brief') IITM hosts consultation on Climate Science into Services for India Forum (See 'Corp Brief') IPR - Continued use of mark after express acknowledgment of proprietor's rights and undertaking to cease such use is strong indicator of dishonest intention and constitutes infringement: HC (See 'Legal Desk') IBC - Successful Resolution Applicant is entitled to pursue dues of Corporate Debtor against its debtors in arbitration even after conclusion of CIRP: SC (See 'Legal Desk') IBC - Express forfeiture clause in e-auction notice binds bidder despite absence of express forfeiture stipulation in Schedule I of Liquidation Process Regulations, 2016: SC (See 'Legal Desk') An unsuccessful 'success fee' litigation (See CORP EINSICHT)

Amendments proposed by Finance Bill, 2018 for companies under IBC, 2016

Published: Feb 13, 2018

THE Insolvency and Bankruptcy Code, 2016 (IBC) was introduced for revival of distressed companies i.e. companies not able to meet their financial obligations. The National Company Law Tribunal (NCLT) is the adjudicating authority for insolvency and bankruptcy cases. As per a recent media report over 2,400 cases have been filed before the NCLT since the enactment of the IBC.

On one hand, the IBC provides support to distressed companies and on the other hand it helps banks resolve the mounting non-performing assets (NPAs) problem. Banks have to take a significant haircut on loans advanced and this would result in a write-back of liability in the books of the company under IBC.

In recent times, some of the big corporate houses of India have shown keen interest in acquiring distressed companies under the IBC. The prospective investor has to submit a resolution plan in the NCLT for revival of the company. The resolution plan would capture how the liabilities of the financial creditors, operational creditors etc. would be discharged. In certain cases it is also proposed that financial creditors are issued equity shares or convertible instruments in consideration for the loan.

The said restructuring of loan poses certain tax challenges which would be a hindrance for the investor in reviving the distressed company. Some key issues relating to the restructuring are as under:

• Brought forward losses may not be available on change in shareholding of more than 49%

• Tax on write-back of liabilities under normal provisions of the Income-tax Act, 1961 (the Act)and Minimum Alternate Tax (MAT) provisions

• For the purpose of computing book profit for calculating MAT, a deduction is allowed in respect of loss brought forward or unabsorbed depreciation as per books whichever is lower

In this regard various investors and bankers made a representation before the government to provide some relaxation to companies under IBC. The Central Board of Direct Taxes vide its press release dated 6 January 2018 indicated its intention to provide relief to companies under IBC.

With a view to reduce hardships faced by companies under IBC, the Finance Bill 2018 has proposed amendments which addresses some of the above mentioned issues. The amendments proposed in the Finance Bill 2018 vis-à-vis the current provisions are tabulated as under:

Current Provisions

Amendments proposed by the Finance Bill, 2018

As per section 79 of the Act, tax business losses of a company in which public is not substantially interested would lapse on account of change in shareholding of more than 49%.

Tax business loss of companies under IBC would not lapse on account of change in shareholding beyond 49% provided the resolution plan is approved after giving a reasonable opportunity of being heard to the Jurisdictional Principle Commissioner or Commissioner

As per section 115JB of the Act for the purpose of computing book profit for calculating MAT a deduction is allowed in respect of loss brought forward or unabsorbed depreciation as per books whichever is lower.

For companies under IBC,deduction is allowed in respect of aggregate amount of loss brought forward and unabsorbed depreciation (as per books)for computing book profit under section 115JB of the Act.

The amendments proposed by the Finance Bill, 2018 will provide some relief to investors/companies under IBC. This is a step taken in the right direction and will help companies under IBC to revive in due course.

[Shripal Lakdawala is a Partner, Madhvi Jajoo is a Manager and Rahul Khaitan is a Deputy Managerat Deloitte Haskins and Sells LLP. The views expressed are strictly personal.]

TIOL CORP SEARCH

TIOL GROUP WEBSITES