TaxTMI 
TaxTMI 
2021 (4) TMI 1081
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....which amount was of Rs. 99,32,55,183. The Representative of the Appellant even attended COC (Committee of Creditors) as Operational Creditor. Later, the Appellant filed claim in Form 'C' seeking status of NOIDA as Financial Creditor. As there was no response by the Resolution Professional (RP - in short), the Appellant entered into correspondence and even moved Adjudicating Authority (National Company Law Tribunal, New Delhi) which passed Orders on 26.07.2019 and sent matter to the Resolution Professional but still when the Appellant was not treated as Financial Creditor, Application CA 257/ND/2019 was filed claiming that RP had disobeyed earlier directions and that Appellant deserved to be treated as Financial Creditor and should be permitted to participate in COC with voting rights. 2. The matter was taken up before the Adjudicating Authority and the Adjudicating Authority after hearing both sides held that the lease deed concerned was not a financial lease as per the terms laid down under the guidelines of "Indian Accounting Standards". Thus, the present Appeal. 3. It is argued and the Appeal claims that the Adjudicating Authority did not record reasons for its findings and th....
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....e has the option to purchase the underlying asset at a price that is expected to be sufficiently lower than the fair value at the date the option becomes exercisable for it to be reasonably certain, at the inception date, that the option will be exercised; (c) the lease term is for the major part of the economic life of the underlying asset even if title is not transferred; (d) at the inception date, the present value of the lease payments amounts to at least substantially all of the fair value of the underlying asset; and (e) the underlying asset is of such a specialised nature that only the lessee can use it without major modifications. 64 Indicators of situations that individually or in combination could also lead to a lease being classified as a finance lease are: (a) if the lessee can cancel the lease, the lessor's losses associated with the cancellation are borne by the lessee; (b) gains or losses from the fluctuation in the fair value of the residual accrue to the lessee (for example, in the form of a rent rebate equalling most of the sales proceeds at the end of the lease); and (c) the lessee has the ability to continue the lease for a secondary period ....
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....alments starting from 11.09.2010 till 11th March, 2020. The Appeal gives breakup of the instalments. According to the Appellant, interest @ 11% per annum was to be paid on "outstanding balance of upfront lease premium" which was secured by creation of first charge in favour of the Appellant over the leased land. On this basis, it is claimed (in Appeal Para - 7.18) as under:- "Thus, even though no monies were directly disbursed by the Appellant to the Corporate Debtor, there was effectively, a deemed disbursement whereby the payment of upfront lease premium was financed by way of an inbuilt financial facility (availed from the Appellant itself), pursuant to which the Respondent was permitted to pay such upfront lease premium amount by way of instalments along with interest, representing time value of money for the Appellant. Therefore, the Lease Deed was a merger of a simpliciter lease transaction and a secured interest bearing financial ability. Thus, by virtue of the nature of the Lease Deed the debt payable by the Corporate Debtor to the Appellant, clearly constituted a 'Financial Debt" under Section 5(8)(a) of the Insolvency and Bankruptcy Code, 2016 ("Code") being money borro....
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....ued and the Appeal refers to the portion in lease deed regarding transfer of plot and misuse, addition, subtraction, etc. to submit that the Appellant was "only exercising minor supervision over the land". 8. On such basis, the learned Counsel for the Appellant has argued to submit that it was a financial lease under Section 5(8)(d). For such reasoning, the Appellant is also further arguing that the claim of the Appellant that it is financial debt, is not merely on the basis of Section 5(8)(d) but also on the basis that the transaction has "commercial effect of borrowing", and so is covered under Section 5(8)(f). 9. Against this, the Respondent - Resolution Professional relies on the Reply filed to the Appeal (Diary No.16867) and referring to the contents of the lease deed as well as the Indian Accounting Standards, the Respondent has argued that it is not a financial debt and the Appellant initially correctly claimed itself to be only an Operational Creditor but later on, has been trying to bring the lease deed within the definition of financial lease which is not correct in law. 10. The parties were heard. Both the sides referring to the lease deed and the Indian Accounting St....
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....cording to Dictionary of Accounting & Finance by R. Brockington (Pitman Publishing, Universal Book Traders, 1996 at p. 136) : "A finance lease is one where the lessee uses the asset for substantially the whole of its useful life and the lease payments are calculated to cover the full cost together with interest charges. It is thus a disguised way of purchasing the asset with the help of a loan. SSAP 23 required that assets held under a finance lease be treated on the balance sheet in the same way, as if they had been purchased and a loan had been taken out to enable this." (emphasis supplied) 14. In Lease Financing & Hire Purchase by Dr. J.C. Verma (4th Edn., 1999 at p.33), financial lease has been so defined: "Financial lease is a long-term lease on fixed assets, it may not be cancelled by either party. It is a source of long-term funds and serves as an alternative of long-term debt financing. In financial lease, the leasing company buys the equipment and leases it out to the use of a person known as the lessee. It is a full payout lease involving obligatory payment by the lessee to the lessor that exceeds the purchase price of the leased property and finance cost. Fin....
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....ion and cannot render specialized service in connection with the asset. 8. The lease is usually full-pay-out, that is, the single lease repays the cost of the asset together with the interest." 17. In our opinion, financial lease is a transaction current in the commercial world, the primary purpose whereof is the financing of the purchase by the financier. The purchase of assets or equipments or machinery is by the borrower. For all practical purposes, the borrower becomes the owner of the property inasmuch as it is the borrower who chooses the property to be purchased, takes delivery, enjoys the use and occupation of the property, bears the wear and tear, maintains and operates the machinery/equipment, undertakes indemnity and agrees to bear the risk of loss or damage, if any. He is the one who gets the property insured. He remains liable for payment of taxes and other charges and indemnity. He cannot recover from the lessor, any of the abovementioned expenses. The period of lease extends over and covers the entire life of the property for which it may remain useful divided either into one term or divided into two terms with clause for renewal. In either case, the lease i....
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....vily tilted in favour of the Appellant controlling almost all the aspects and while passing over the risks to the Corporate Debtor, keeps the rewards with Lessor, except the liberty to sell the flats which would be constructed. 15. We proceed to refer to portions of the lease deed which would rather show that rewards incidental to ownership of the underlying asset which is land, were not transferred. 16. We will refer to page number of the lease deed (rather than page number of the Appeal) while referring to the contents of the lease deed with the Corporate Debtor. The Appellant put condition to the Corporate Debtor that the lessee will be allowed to transfer/sell upto 49% of its shareholding, subject to the condition that the original shareholder indicated (on the date of submission of the tender) shall continue to hold at least 51% of shareholding till the temporary Occupancy/Completion Certificate of at least one phase of the project is obtained from NOIDA". (See Page - 3). The lease deed specifies that the same was being executed in consideration of total premium of Rs. 46 Crores + and 10% i.e. Rs. 4,61,46,999.65 has been paid by the lessee. Then there is chart of 20 dates be....
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....nt already paid will not be considered in onetime lease rent option. Page - 7 shows that liabilities to pay all rates, taxes, charges, etc. assessed or imposed by the lessor or any Government Authority were that of the lessee. Relevant part (at Page -7 of Lease Deed) reads as under:- "c) The Lessee shall use the allotted plot for construction of Group Housing. However, the lessee shall be entitled to allot the dwelling units on sublease basis to its allottee and also provide space for facilities like Roads, Parks etc. as per their requirements, convenience with the allotted plot, fulfilling requirements or building bye-laws and prevailing and under mentioned terms & conditions to the lessor. Further transfer/sub lease shall be governed by the transfer policy of the Lessor." Then the Clause goes on to state that the allottee/sub-lessee should be citizen of India and should be competent and that the husband wife and that dependent children would be considered single entity. Sub-Clause (iii) at Page - 7 and 8 reads as under:- "iii) The permission for part transfer of plot shall not be granted under any circumstances. The Lessee shall not be entitled to complete transaction for s....
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....alterations, etc. with regard to the flats that the lessee shall not use flat for any purpose other than residential purpose and in case of violation of the above condition, the allotment shall be liable to be cancelled and possession of the premises along with structure thereon, if any, shall be resumed by the Appellant. There are further conditions put with regard to alterations or additions, etc. The liability to pay taxes, charges, etc. was put on lessor (Page - 14 of the Lease Deed). At Page - 14, there is Clause with regard to overriding power over Government properties with right to mines, minerals, etc. on or under the concerned plot, which is similar to the Clause noticed at Page - 6 of the lease deed. Thus, the Appellant reserved right to even remove the vertical support for the surface of the plots/flats and what should be the compensation, the right was reserved with the Appellant which is stated to be "final and binding on the lessee/sub-lessee". Page - 15 of the Lease Deed states that in addition to other specific Clauses relating to cancellation, the lessor, as the case may be, will be free to exercise its right of cancellation of lease in case of incidents as mentio....
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.... a finance lease if the lease transfers ownership of the property to the lessee by the end of the lease term or there is bargain purchase option. The lease must transfer substantially all the risks and also rewards incidental to ownership of the asset. 24. The argument of the Appellant trying to mix up transfer of ownership of the asset which is land with right to transfer flats to be constructed has no substance. Merely, because the lessee was given right to fix the price of the dwelling units to be constructed, that by itself is not sufficient to say that the lease of the land is a finance lease. The argument of the Appellant that lessee has an option to pay onetime lease rent and that if such right was exercised lessee would not be required to pay further rent and that this shows that present value of the lease payment amounts to at least substantially all of the fair value of the asset, is also baseless. No material is brought to show as to what is and would be the fair value. With regard to right to cancel lease, it is reserved with the lessor but not the lessee. The Appellant argues that the question of cancellation of lease deed by lessee would not arise as lessee would bui....
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.... Appellant permitting payment of premium in instalments by the lessee should be treated as having commercial effect of borrowing. Reliance is placed on Judgement in the matter of "Pioneer Urban Land and Infrastructure Limited and Another Versus Union of India and Others" (2019) 8 SCC 416 - SCC OnLine SC 1005 where Section 5(8)(f) was discussed by the Hon'ble Supreme Court in paragraphs - 75 to 77. 28. Pursuant to a Report prepared by Insolvency Law Committee dated 26th March, 2018 "amendments were made which deem allottees of real estate projects to be Financial Creditors so that they may trigger the IBC under Section 7 against real estate developers". In that context, various Writ Petitions were filed before the Hon'ble Supreme Court and the Hon'ble Supreme Court considered the constitutional validity of the amendments made. It was in that context that in para - 77, Hon'ble Supreme Court observed as under:- "77. A perusal of these definitions would show that even though the petitioners may be right in stating that a "borrowing" is a loan of money for temporary use, they are not necessarily right in stating that the transaction must culminate in money being given back to the len....