Validity of IBBI’s Regulatory Fee Upheld
The Bombay High Court in Hazel Mercantile Limited & others v Insolvency and Bankruptcy Board of India & Ors (‘Hazel Mercantile case’) upheld the validity of Regulation 31A, Insolvency and Bankruptcy Board of India (Insolvency Resolution Process for Corporate Persons) Regulations, 2016 (‘CIRP Regulations’). The High Court rejected petitioner’s narrow conception of the IBBI’s role and held that the Insolvency and Bankruptcy Code, 2016 (‘IBC’) entrusted a wide array of administrative, executive, quasi-legislative, and regulatory functions to the IBBI. And since the IBBI provided services to all stakeholders in a CIRP – including a successful resolution applicant – it was entitled to levy regulatory fee under the CIRP Regulations.
Overview of Arguments
The petitioner argued that Regulation 31A of CIRP Regulations was ultra vires the IBC. Regulation 31A(1), inserted in 2022 provides that:
A regulatory fee calculated at the rate of 0.25 per cent of the realizable value to creditors under the resolution plan approved under section 31, shall be payable to the Board, where such realizable value is more than the liquidation value:
The proviso states that sub-regulation shall be applicable where resolution plan is approved under section 31, on or after 1st October 2022.
Petitioner’s arguments were manifold, let me focus on three to capture their stance: (i) Regulation 31A is beyond the power and functions of IBBI under Section 196 of the IBC; (ii) Regulation 31A is beyond provisions of the IBC such as Section 5(13) read with 30(2)(a), 31(1), 53(1)(a) and 240; (iii) the regulatory fee is more of a tax because the IBBI does not provide any service to successful resolution applicants during CIRP which implies that there is no quid pro quo, an essential element of fee.
The Bombay High Court rejected the petitioner’s arguments. The High Court’s primary observation was that the petitioner tried to cast the IBBI’s role and functions in narrow terms. The petitioner’s argument that the IBBI did not provide any service to successful resolution applicants during CIRP was inaccurate. CIRP Regulations, enacted by the IBBI, regulate the entire CIRP including decision making by the CoC.
Role of the IBBI
The petitioner claimed that the IBBI’s role was limited to regulating insolvency professionals, insolvency professional agencies and information utilities. The Bombay High Court referred to Section 196 which enlisted numerous powers and functions of the IBBI as well as Section 240 which empowered it to make regulations. The High Court noted that the IBBI performs a host of administrative, quasi-judicial functions, quasi-legislative, executive functions and its role is broad-based which has a crucial bearing on achieving the IBC’s objectives. Based on its scrutiny of the above provisions and the BLRC Report, the High Court correctly held that it would be inaccurate to hold that the IBBI performs its role as a regulator only in respect of insolvency professionals, insolvency professional agencies, and information utilities. And held that:
As per the aforementioned two provisions, it has powers to regulate such actions, which are integral part of CIRP by framing regulations under the regulation- making power specifically granted to the Board under the IBC. Thus, the contention raised on behalf of the petitioners that the Board does not regulate the CIRP and that therefore, the impugned Regulation 31A of the IBBI Regulations ought to be struck down, deserves to be rejected. (para 28)
The petitioner’s ill-fated argument was premised on lack of a direct nexus between the IBBI and CIRP. The petitioner’s presumption was that since the primary decision maker in a CIRP was the Committee of Creditors (‘CoC’), the IBBI had no role in CIRP. But the High Court took a wider view of the IBBI’s role based on provisions of the IBC – specifically Sections 196 and 240 – and held that the IBBI is empowered to enact CIRP Regulations to ensure that CIRP is conducted in an efficient manner and objectives of the IBC are achieved. Which, of course, includes the duties and obligations of the CoC. Including the manner of their voting.
The High Court’s view is a correct reading of the relevant provisions of IBC. The High Court correctly identified the IBBI’s role as the enabler of entire CIRP. And not merely as regulator or overseer of the professionals involved in CIRP. A successful resolution applicant in CIRP may not receive any direct services from the IBBI, but benefits from CIRP and its procedure that is detailed under IBBI’s CIRP Regulations in consonance with the IBC’s aims. A direct nexus between the IBBIs’ role and CIRP is not only present but also omnipresent and undeniable.
Regulation 31A vis-à-vis the IBC
Section 240(1) states that:
The Board may, by notification, make regulations consistent with this Code and the rules made thereunder, to carry out the provisions of this Code.
And Section 5(13)(e) states that insolvency resolution costs include any other costs that may be specified by the Board.
The Bombay High Court on conjoint reading of Section 5, 196, and 240 held that the IBBI clearly had the power to impose a regulatory fee, and it enacted Regulation 31A under the authority of law.
On the related issue of whether Regulation 31A was ultra vires the IBC, the Bombay High Court examined Section 5(13) which defines ‘insolvency resolution process costs’ and specifically the residual clause (e) which states ‘any other costs as may be specified by the Board’. Further, Regulation 31(ba) of CIRP Regulations states that insolvency resolution process costs under Section 5(13)(e) means fee payable to the Board under Regulation 31A. The High Court interpreted the above provisions together – alongside Section 196 of the IBC – and rightly concluded that the IBBI could include any levies in the insolvency resolution process costs under Regulation 31. And held that ‘it cannot be said that the Board could not impose the impugned regulatory fee as part of the insolvency resolution process costs.’ (para 56)
In concluding the above, the Bombay High Court cited numerous precedents about the scope and implication of the interpretive principle of ejusdem generis and correctly stated that the IBBI can include regulatory fee in the CIRP costs.
Nature of Regulatory Fee: Tax/Fee and its Excessiveness
In upholding the vires of Regulation 31A and holding that the IBBI had power to enact it, the Bombay High Court rejected the petitioner’s contention that successful resolution applicants weren’t provided any services by the IBBI during CIRP. Once the petitioner’s contention that the IBBI didn’t provide any services to successful resolution applicants was rejected, the issue of whether the regulatory fee was a tax and not a fee was moot. Especially, since the High Court also established – and correctly so – that the IBBI imposed the fee under full authority of law. But the High Court engaged in a long discussion about the jurisprudence on meaning of tax and fee. Let me state it pithily.
The jurisprudence on meaning of tax and fee can be traced to The Commissioner Hindu Religious Endowment, Madras v Shri Lakshmindra Thirtha Swamiar of Shri Shirur Mutt upto the latest judgment of Small Scale Entrepreneurs Association v The State of Maharashtra. The shift can be broadly stated as: tax and fee are distinct concepts the former is a compulsory levy for general purposes while an element of quid pro quo is necessary for the latter. However, courts have progressively relaxed the requirement of quid pro quo, and the service provided in lieu of fee need not be exact but can be broad based and general. Even an indirect relation between the service and levy is sufficient for the levy to qualify as a fee.
Applying the above position of law to the Hazel Mercantile case, the Bombay High Court said that the IBBI provides generalized and broad-based service to all stakeholders of CIRP including the CoC and concluded that:
We fail to understand how the petitioner-Hazel Mercantile Limited can claim that it has nothing to do with CIRP when the whole process of CIRP is tuned and dynamically operates with the active participation of all stakeholders, particularly the CoC and the resolution applicants. (para 77)
The High Court clearly rejected the petitioner’s insistence on a direct quid pro quo. Also, the High Court rejected the petitioner’s contention that the regulatory fee was excessive. The High Court underlined that the regulatory fee collected under Regulation 31A is not credited go the general revenue of the State and remains with the IBBI for its expenses which emphasizes its character as a fee. And that the IBBI needs an independent source of revenue to ensure its financial independence and reduce political interference which justifies the quantum of fee. At the same time, the IBBI possessing an excess of funds:
… cannot ipso facto lead to the conclusion that the impugned regulatory fee is excessive and disproportionate, to be held in reality as a tax imposed without authority of law. (para 93)
The lack of a mathematical exactitude between the fee and services being provided was foundation for the High Court’s conclusion that the allegation of regulatory fee being excessive was irrelevant.
Few Observations
The Hazel Mercantile case involved three intersecting issues, and the Bombay High Court did a credible job of addressing each of them albeit with the usual sin of writing a verbose and repetitive judgment. The High Court rightly rejected petitioner’s narrow conception of the IBBI’s role and relied on relevant statutory provisions to highlight that it performs a wide-ranging set of functions in regulating not only the insolvency professionals, insolvency professional agencies, and information utilities; but, in also ensuring that the CIRP is completed in a smooth and efficient manner. Thereby providing a service to all stakeholders in a CIRP. And this is apart from the executive, quasi-judicial, quasi-legislative, and administrative functions that the IBC envisages for the IBBI. Equally, a direct application of the legal position in relation to tax-fee distinction is welcome and clarifies the elbow room available to the IBBI to collect fee on different counts to ensure its financial independence. And if it leads to excess funds with the IBBI that factor alone is not enough to term the IBBI’s fee as excessive.
Overall, the Bombay High Court was on point when it identified that CIRP operated due to the CIRP Regulations enacted by the IBBI. And for a successful to participate in CIRP and thereafter to claim that the IBBI did not provide any service to it or other entities in CIRP is a misleading argument and a mischaracterization of the IBBI’s role.
