LIQUIDATOR IS TO OBTAIN GST REGISTRATION

[DR.MARIAPPAN GOVINDARAJAN]

IN RE: M/S. MAHESHWARY ISPAT LIMITED - 2025 (3) TMI 237 - AUTHORITY FOR ADVANCE RULING, WEST BENGAL, a Company Petition was filed by Tata Capital Ltd. (erstwhile Tata Capital Financial Services Ltd.) before the Hon'ble High Court of Calcutta vide C.P. No. 560 of 2011 against the Corporate Debtor under the provisions of Section 433, 434 and 439 of the Companies Act, 1956. The Hon'ble High Court admitted the said petition on 12.10.2012 directing commencement of the winding up proceedings and subsequently, vide order date 21.06.16 read with order dated 28.11.16, the Company was directed to be wound up. Accordingly, the Ld. Official Liquidator (OL) was directed to take over the possession of the Company.  The Official Liquidator had taken possession of the assets of the company (in liquidation) as far back as in 2017 and 2018.  After the enactment of Insolvency and Bankruptcy Code, 2016 this case was transferred to National Company Law Tribunal (‘NCLT’ for short), Kolkata Bench.  The State Bank of India filed an application before the NCLT.  The NCLT appointed Santanu Brahma as Liquidator of the Company  vide order dated 19.12.2023. The liquidator is to cause sale notice of the assets of the company. 

The company made an application under Section 97(1) of the Central Goods and Services Tax Act, 2017 (‘Act’ for short) before the Authority for Advance Ruling to get rulings in respect of the following questions-

1. Whether any sale of assets of the company Maheshwary Ispat Limited which is in liquidation, done by the Liquidator of the company results in a supply of goods and/or services or both within the meaning of ‘supply’ as defined under section 7 of the Act. If the answer is in affirmative, is the Liquidator appointed by NCLT Kolkata Bench, required to obtain GST registration in terms of Section 25 of the Act and WBGST Act 2017 read together with the Notification no. 11/2020-Central Tax dated 21.03.2020 and Notification no. 439-F.T. dated 03.04.2020, issued under WBGST Act, 2017?
2. If the answer to the question in (1) is in affirmative, how to obtain the registration when no specific registration process has been specified for a company which in Liquidation?
3. Is the Liquidator required to collect GST at applicable rates on sale of assets of the company Maheshwary Ispat Limited which is in liquidation? If the answer is in affirmative, how to discharge the GST obligation, file GST return and pass on the GST Input Tax Credit when GST registration of the Company in Liquidation is not allowed to be proceeded further on the GST Portal?

The Authority for Advance Ruling observed that the questions made by the applicant against serial number (2) and (3) above are found not to be covered under any of the clauses of sub-section (2) of section 97 of the GST Act and therefore the Authority for Advance Ruling has not taken up these questions for its consideration and considered only the question No.1 for its consideration.

The applicant submitted the following before the Authority for Advance Ruling-

• On 15.01.2024, the Liquidator made a Public Announcement in Form B in the newspaper namely 'Business Standard' in English and 'Aajkaal in Bengali.
• In due course the Liquidator started taking custody of the assets of the company from the Official Liquidator.
• On 09.05.2024, the Liquidator published the E-auction sale notice of the ‘Unexpired Lease of the Office Premises of the CD situated at City Centre 1, Kolkata 700064’ in the newspaper namely ‘The Telegraph Calcutta edition in English’, ‘Business Standard’ Kolkata edition in English and ‘Aajkaal Kolkata’ in Bengali.
• On 03.06.24, the Liquidator conducted the E-Auction of the asset of the corporate debtor in terms of the E-Auction Sale Notice dated 09.05.24. Star Turn Exim Private Limited emerged as a Successful Bidder.
• The company did not possess a GST Registration as on 19.12.2023 when the liquidator was appointed.
• The Department issued notifications on 21.03.2020 and 05.05.2020 which provide special procedure for corporate debtors undergoing the corporate insolvency resolution process under the Insolvency and Bankruptcy Code, 2016.
• The Department also issued circulars in this regard.  But the said circulars did not provide for any process or clarification when the company is in liquidation and the affairs of the company is being managed by a Liquidator.
• The liquidator to discharge the statutory duties cast on him proceeded with the application of GST Registration but the functionality of GST portal did not allow the liquidator to submit the application for GST Registration.
• An error message stating “Error Minimum 2 Promoters & Partners Required” populated at the time of submission of the Application and accordingly the GST Registration application process could not be completed.
• The applicant raised on the matter by the Liquidator on https://selfservice.gstsystem.in/ which was closed by the GST Helpdesk stating “Resolution: Dear Taxpayer, As per revised implementation, Minimum 2 Promoters & Partners is required for the below mentioned Constitution of Business: Foreign Company Foreign Limited Liability Partnership Limited Liability Partnership Private Limited Company Public Limited Company Public Sector Undertaking Society/Club/Trust/Association of Persons Unlimited Company. Therefore, we request you to kindly add at least 2 Partners/Promoter by filing core amendment then save and then submit the application. If you face any other issues kindly raise other tickets with proper screenshots”. 
• since the company is in Liquidation, there are no Promoters/Directors of the company at present and the affairs are being managed by the Liquidator.

The Revenue submitted that the applicant is not yet registered and so it does not fall under any specific jurisdiction.

The Authority for Advance Ruling perused the application and the documents supplied by the applicant.  The Authority for Advance Ruling observed that as per Notifications and Circulars issued by the Department provides that the Interim Resolution Professional/Resolution Professional appointed by the NCLT in the corporate insolvency resolution Process are class of persons to follow the special procedures that require for registration under the Act.  The said class of persons shall, with effect from the date of appointment of Interim Resolution Professional / Resolution Professional, be treated as a distinct person of the corporate debtor, and shall be liable to take anew registration in each of the States or Union territories where the corporate debtor was registered earlier, within 30 days of the appointment of the Interim Resolution Professional/Resolution Professional.  The sale of the assets of the applicant by NCLT appointed liquidator is a supply of goods by the liquidator, who is required to take registration under section 24 of the Act.

The Authority for Advance Ruling ruled that-

• Any sale of assets of the company Maheshwary Ispat Limited which is in liquidation, done by the Liquidator of the company results in a supply of goods and/or services or both within the meaning of “supply” as defined under section 7 of the CGST Act 2017.
• The Liquidator who is an insolvency professional being appointed by the Hon’ble NCLT Kolkata Bench as a liquidator, is required to obtain GST registration in terms of Section 24 of the CGST Act, 2017 and WBGST Act 2017 read together with the Notification no. 11/2020-Central Tax dated 21-March-2020 and Notification no. 439-F.T, dated 03-April 2020, issued under the WBGST Act, 2017.