Legal Frameworks for losses and unabsorbed depreciation Carry Forward in Co-operative Bank Mergers and Demergers in Clause 118 of the Income Tax Bill, 2025 Vs. Section 72AB of the Income Tax Act, 1961

Clause 118 Carry forward and set off of losses and unabsorbed depreciation in business reorganisation of co-operative banks.

Income Tax Bill, 2025

Introduction

Clause 118 of the Income Tax Bill, 2025, and Section 72AB of the Income Tax Act, 1961, both address the carry forward and set off of accumulated losses and unabsorbed depreciation in the context of business reorganisations of co-operative banks. These provisions are crucial for ensuring the continuity and financial stability of co-operative banks undergoing structural changes such as amalgamations and demergers. The legal framework aims to facilitate the seamless transition of financial liabilities and assets to successor entities, thereby supporting the banking sector's resilience and growth.

Objective and Purpose

The primary objective of both Clause 118 and Section 72AB is to allow successor co-operative banks to benefit from the tax attributes of predecessor banks during business reorganisations. This includes the ability to carry forward and set off accumulated business losses and unabsorbed depreciation, thereby reducing the tax burden on the successor entity and promoting financial continuity. The legislative intent is to ensure that the restructuring of co-operative banks, whether through amalgamation or demerger, does not result in a loss of tax benefits accrued by the predecessor entity. This approach is consistent with broader policy goals of fostering stability and efficiency in the banking sector, particularly among co-operatives which play a significant role in financial inclusion and rural development.

Detailed Analysis

1. Amalgamation Provisions: Under both Clause 118 and Section 72AB, when an amalgamation occurs during the tax year, the successor co-operative bank is entitled to set off the accumulated business loss and unabsorbed depreciation of the predecessor bank as if the amalgamation had not occurred. This provision ensures that the financial benefits of past investments and losses are not lost in the transition, thereby supporting the financial health of the newly formed entity.

2. Demerger Provisions: Both legal texts provide detailed mechanisms for handling accumulated losses and unabsorbed depreciation in cases of demerger. If these financial attributes are directly related to the transferred undertaking, they can be fully transferred to the resulting co-operative bank. If not directly relatable, they must be apportioned between the demerged and resulting banks based on the distribution of assets. This ensures a fair and equitable distribution of tax benefits and liabilities, aligned with the actual transfer of business assets and operations.

3. Conditions for Application: The application of these provisions is contingent upon specific conditions being met by both predecessor and successor banks. These conditions include the duration of engagement in banking business, the retention of fixed assets, and the continuation of business operations post-reorganisation. Such stipulations are designed to prevent misuse of the provisions and to ensure that reorganisations are conducted for genuine business purposes rather than merely for tax advantages.

4. Compliance and Penalties: Both Clause 118 and Section 72AB stipulate that if the prescribed conditions are not met, any set-off of accumulated losses or unabsorbed depreciation previously allowed will be deemed taxable income for the successor bank in the year of non-compliance. This serves as a deterrent against non-compliance and ensures adherence to the statutory requirements.

5. Definitions and Interpretations: The provisions include specific definitions for terms such as "accumulated business loss," "unabsorbed depreciation," and various types of co-operative banks involved in the reorganisation process. These definitions are crucial for the consistent application and interpretation of the law, providing clarity and reducing the potential for disputes.

Practical Implications

For co-operative banks, these provisions offer a clear framework for managing tax liabilities during mergers and demergers, thus enabling smoother transitions and financial planning.

For regulators, the provisions ensure that business reorganisations are conducted in a manner that maintains the integrity and stability of the financial system. Compliance with these provisions requires careful documentation and adherence to the specified conditions, which may involve additional administrative efforts for the banks involved.

Comparative Analysis

While Clause 118 and Section 72AB are fundamentally similar in their objectives and structure, Clause 118 of the Income Tax Bill, 2025, introduces some refinements and additional conditions to enhance the robustness of the framework. For instance, Clause 118 includes a provision allowing the Central Government to specify additional conditions to ensure genuine business purposes, reflecting a more dynamic approach to regulation. This flexibility could address emerging challenges and ensure that the framework remains relevant in a changing economic environment.

Conclusion

Both Clause 118 and Section 72AB play a vital role in facilitating the business reorganisation of co-operative banks by ensuring that tax benefits related to accumulated losses and unabsorbed depreciation are preserved. These provisions support the financial stability and operational continuity of co-operative banks, which are crucial for economic development and financial inclusion. Future reforms could focus on further streamlining compliance processes and enhancing the adaptability of the provisions to address evolving business and regulatory landscapes.

Full Text:

Clause 118 Carry forward and set off of losses and unabsorbed depreciation in business reorganisation of co-operative banks.

Dated: 10-4-2025