Section 88 of GST – Liability in case of company in liquidation
(1) When any company is being wound up whether under the orders of a court or Tribunal or otherwise, every person appointed as receiver of any assets of a company (hereafter in this section referred to as the “liquida(1) When any company is being wound up whether under the orders of a court or Tribunal or otherwise, every person appointed as receiver of any assets of a company (hereinafter referred to as the “liquidator”), shall, within thirty days after his appointment, give intimation of his appointment to the Commissioner. (2) The Commissioner shall, after making such inquiry or calling for such information as he may deem fit, notify the liquidator within three months from the date on which he receives intimation of the appointment of the liquidator, the amount which in the opinion of the Commissioner would be sufficient to provide for any tax, interest or penalty which is then, or is likely thereafter to become, payable by the company. (3) When any private company is wound up and any tax, interest or penalty determined under this Act on the company for any period, whether before or in the course of or after its liquidation, cannot be recovered, then every person who was a director of such company at any time during the period for which the tax was due shall, jointly and severally, be liable for the payment of such tax, interest or penalty, unless he proves to the satisfaction of the Commissioner that such non-recovery cannot be attributed to any gross neglect, misfeasance or breach of duty on his part in relation to the affairs of the company. Related provisions of the Statute:
Analysis of this section
Introduction This section deals with the tax and other dues of a company in case it is wound up or liquidated. This section has to be read with Rule 160 of CGST Rules, 2017. Analysis
(a) Name of the company being liquidated(b) The GSTIN of the company being liquidated(c) Date of the letter(d) Period for which demand is being made(e) Demand Order No.(f) Reference to Liquidator’s letter intimating liquidation of the company(g) The actual amount or likely amount, the company owes to State/ Central Government in terms of tax, interest, penalty, other dues and total arrears thereof
- Rule 160 employs the term ‘notify’ the liquidator, while Form GST DRC – 24 ‘directs’ the liquidator to make sufficient provision for discharge of current and anticipated liabilities before final winding up of the company. Issues and Concerns It appears that the GST law is directing the liquidator to set aside / make sufficient provision for the tax which is ‘due or is likely to be due’ under the Act, recoverable from company under liquidation. However, section 326 of The Companies Act, 2013 provides for preferential payments to be made first towards workmen’s dues and debts due to secured creditors and only thereafter, follow the sequence as prescribed in section 327 of The Companies Act, 2013 which covers dues to Government in form of taxes, cesses and rates etc.,. Therefore, directing a liquidator to make provision for the amount of tax, interest, penalty and any other amount due / is liable to become due, would be ultra vires the Companies Act, 2013 read with Insolvency Bankruptcy Code, 2016. However, had a reference to section 82 of CGST Act, 2017 been made in this section, it would have been clear that dues are recoverable and a first charge on property of the person can be made, to recover the dues under this Act, only after fulfilling the preferential provisions as per the Companies Act, 2013 read with the Insolvency and Bankruptcy Code, 2016.However, had a reference to section 82 of CGST Act, 2017 been made in this section, it would have been clear that dues are recoverable and a first charge on property of the person can be made, to recover the dues under this Act, only after fulfilling the preferential provisions as per the Companies Act, 2013 read with the Insolvency and Bankruptcy Code, 2016. Corporate Insolvency Resolution Professionals need to take note on this responsibility after the introduction of IBC Recommended Articles –
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