NEW ROLES ASSIGNED TO INSOLVENCY PROFESSIONALS UNDER INCOME TAX ACT, 1961

[Mr. M. GOVINDARAJAN]

Income Tax Amendment Rules

Vide Notification No. 93/2021, dated 18.08.2021 the Central Board of Direct Taxes amended the Income Tax Rules called as ‘Income Tax (24^th Amendment) Rules, 2021.  Vide this amendment the new rules 12AA and 51B have been inserted which give new recognition to insolvency professionals. 

Verification of return

Section 140 of the Act provides the method of verification of income tax return filed under section 115 WD (return of fringe benefits) or section 139 (return of income)  by the individuals, Hindu Undivided Family, company.   Section 140 (c) of the Act provides that the income tax returns in respect of company shall be verified by the managing director thereof, or where for any unavoidable reason such managing director is not able to verify the return, or where there is no managing director, by any director thereof or any other person, as may be prescribed for this purposes.

Section 140(c) of the Act provides that where in respect of a company, an application for corporate insolvency resolution process has been admitted by the Adjudicating Authority under section 7 or section 9 or section 10 of the Insolvency and Bankruptcy Code, 2016, the return shall be verified by the insolvency professional appointed by such Adjudicating Authority.

Section 140 (cd) of the Act provides that in respect of a company, an application for corporate insolvency resolution process has been admitted by the Adjudicating Authority under section 7 or section 9 or section 10 of the Insolvency and Bankruptcy Code, 2016, the return shall be verified by the insolvency professional appointed by such Adjudicating Authority.

The newly inserted Rule 12AA provides that for the purpose of clause (c) or clause (cd), as the case may be, of section 140, any other person shall be the person, appointed by the Adjudicating Authority for discharging the duties and functions of an interim resolution professional, a resolution professional, or a liquidator, as the case may be, under the Insolvency and Bankruptcy Code, 2016 and the rules and regulations made there under.

If the corporate debtor, in the course of corporate insolvency resolution process, is a going concern, then it is the bounden duty of the Interim Resolution Professional, Resolution Professional or liquidator in liquidation process, to prepare the return of income of corporate debtor.  For the purpose of preparation of the return of income, the Interim Resolution Professional/Resolution Professional/Liquidator shall carry out any examination of such accounts, statements or documents, a report on the scope and results of such examination.

Authorized representative

Section 288 of the Act provides that any assessee who is entitled or required to attend before any income-tax authority or the Appellate Tribunal in connection with any proceeding under this Act otherwise than when required under section 131 to attend personally for examination on oath or affirmation, may, subject to the other provisions of this section, attend by an authorized representative.

The Authorized representative is a person authorized by the assessee in writing to appear on his behalf, being-

• a person related to the assessee in any manner, or a person regularly employed by the assessee; or
• any officer of a Scheduled Bank with which the assessee maintains a current account or has other regular dealings; or
• any legal practitioner who is entitled to practise in any civil court in India; or
• an accountant (Chartered Accountant);  or
•  any person who has passed any accountancy examination recognized in this behalf by the Board; or
• any person who has acquired such educational qualifications as the Board may prescribe for this purpose; or
•  any person who, before the coming into force of this Act in the Union territory of Dadra and Nagar Haveli, Goa, Daman and Diu, or Pondicherry, attended before an income-tax authority in the said territory on behalf of any assessee otherwise than in the capacity of an employee or relative of that assessee; or
• any other person who, immediately before the commencement of this Act, was an income-tax practitioner within the meaning of section 61(2)(iv) of the Indian Income-tax Act, and was actually practising as such.
• any other person as may be prescribed.

The newly inserted Rule 51B provides that the expression ‘any other person’ shall be the person appointed by the Adjudicating Authority for discharging the duties and functions of an interim resolution professional, a resolution professional, or a liquidator, as the case may be, under the Insolvency and Bankruptcy Code, 2016 and the rules and regulations made there under.

           Either before making an appearance before the Assessing Officer having jurisdiction to assess that assessee, or immediately after making such appearance, the Interim Resolution Professional/Resolution Professional/Liquidator shall furnish to that officer the particulars of accounts, statements or other documents supplied to him by the assessee for the preparation of the return of income.

The role of the Interim Resolution Professional/Resolution Professional/Liquidation is going to increase because of these amendments to Income Tax Rules.