Benefit of carry forward and set off of losses

Section 79 of Act provides that carry forward and set off of losses in a closely held company shall be allowed only if there is a continuity in the beneficial owner of the shares carrying not less than 51 percent. of the voting power, on the last day of the year or years in which the loss was incurred.

In general, the case of a company seeking insolvency resolution under Insolvency and Bankruptcy Code, 2016, involves change in the beneficial owners of shares beyond the permissible limit under section 79. This acts as a hurdle for restructuring and rehabilitation of such companies.

In order to address this problem, it is proposed to relax the rigors of section 79 in case of such companies, whose resolution plan has been approved under the Insolvency and Bankruptcy Code, 2016, after affording a reasonable opportunity of being heard to the jurisdictional Principal Commissioner or Commissioner.

This amendment will take effect from 1st April, 2018 and will, accordingly, apply in relation to assessment year 2018-19 and subsequent assessment years.

It is also proposed to amend section 140 of the Act so as to provide that during the resolution process under the Insolvency and Bankruptcy Code, 2016, the return shall be verified by an insolvency professional appointed by the Adjudicating Authority under the Insolvency and Bankruptcy Code, 2016.

This amendment will take effect from 1st April, 2018 and will, accordingly apply to return filed on or after the said date.

[Clause 22 & 43]

Carry forward and set off of losses allowed where insolvency resolution plan under IBC preserves loss claims despite ownership change. Relaxation is proposed to permit carry forward and set off of losses despite change in beneficial ownership where an insolvency resolution plan is approved under the Insolvency and Bankruptcy Code, 2016, subject to hearing the jurisdictional Principal Commissioner or Commissioner. It is also proposed that returns during the resolution process be verified by the insolvency professional appointed by the Adjudicating Authority. Both amendments are to take effect from 1 April 2018 and apply to assessments and returns from that date.