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Section 29A, 32A. Beneficial ownership-IBBI Discussion Paper

Section 29A under IBC law

IBBI Discussion Paper – Measures to Enhance Integrity of the CIRP

This is to apprise you that the Insolvency and Bankruptcy Board of India (IBBI), in exercise of its powers under sections 196, 207, 208, and 240 of the Insolvency and Bankruptcy Code, 2016, has issued the following Discussion Paper. Strengthen transparency, accountability, & efficiency in the CIRP and liquidation under the Insolvency and Bankruptcy Code (IBC), 2016. Following Background given here under :

  • IBC has become a core part of India’s economic framework, resolving distressed assets and protecting value.
  • Stakeholder feedback, court rulings, and practical experience show the need for continuous refinement.
  • Committee of Creditors (CoC) must play a more active role in ensuring compliance, particularly with:
    • Section 29A – ineligibility criteria for resolution applicants.
    • Section 32A – immunity provisions.
    • Beneficial ownership disclosures.
  • Need for robust digital infrastructure to ensure procedural fairness, transparency, and confidentiality.

Section 32A – Immunity for Corporate Debtor and Property in Resolution

  • To provide a “clean slate” to the corporate debtor (CD) after a successful resolution, encouraging genuine investors to take over distressed assets without fear of being prosecuted for past offences of the CD. Key Provisions related Section 32A – Immunity for Corporate Debtor and Property in Resolution
  • Immunity from Prosecution – Corporate Debtor : Once a resolution plan is approved by NCLT and results in a change in management/control, the corporate debtor cannot be prosecuted for offences committed before the insolvency commencement date, if the new management is Not a promoter or in management/control of the CD, Not a related party of such persons, Not a person against whom the investigating authority has filed a report/complaint for having abetted or conspired in the offence.
  • Immunity for Property : Property of the corporate debtor covered under the approved plan is also protected from actions such as Confiscation, Attachment,Seizure, Retention, Any similar proceedings. This applies even if the property was involved in the offence, provided it is now owned by someone who meets the eligibility criteria above.
  • Exceptions : Immunity does not extend to Persons directly responsible for the offence, & Management or promoters involved in wrongdoing & Property of such persons.
  • Ongoing Investigations : Investigations against past management, promoters, or officers responsible for the offence can continue. Corporate debtor must assist investigating authorities if required.
  • Rationale : Without such immunity, genuine resolution applicants could face huge legal risks for acts they never committed, discouraging bids. & Ensures maximum value for creditors by making the company more attractive to buyers.
  • Current Challenge (as noted in IBBI Proposal 2) : Complex ownership structures can hide the ultimate beneficial owners of the successful resolution applicant. This can lead to misuse of Section 32A immunity by ineligible persons, which is why IBBI is proposing enhanced disclosure requirements.

Beneficial Ownership Disclosures under IBC – Concept of Beneficial Ownership :

The natural person who ultimately owns, controls, or benefits from a company or legal arrangement, even if the ownership is exercised through layers of entities. Beneficial Owner Recognised under Companies Act, 2013 – Section 90 & SBO Rules. & Prevention of Money Laundering Act, Rule 9 of PML Rules & Also under SEBI Regulations – For listed entities and market intermediaries.

Why Ownership Disclosures under IBC Matters in IBC :

Under CIRP, Resolution Applicants may have complex ownership structures with multiple holding entities, cross-border arrangements, or trusts. Without BO disclosure It’s hard to verify eligibility u/s 29A (ineligibility criteria).& Section 32A immunity could be misused by promoters/related parties hiding behind indirect holdings. Courts and IBBI have stressed the need to identify the true controlling individuals to prevent backdoor entry of ineligible persons.

Current IBC Requirements : No stand-alone regulation dedicated solely to BO disclosure. However, indirectly required through:

    1. Regulation 36A (CIRP Regulations) – Requires disclosure of eligibility norms and undertaking from RA.
    2. Regulation 38 – Resolution plan to demonstrate compliance with the Code.
    3. Section 30(2) – Plan must comply with law, which includes disqualifications and disclosures under other statutes.
    4. Form G & Affidavit under Section 29A – Must be truthful, which in practice demands BO clarity.
    5. RP’s Due Diligence – Verifying eligibility often entails identifying BO.

Proposed Strengthening (IBBI Discussion Paper) :

Amend Regulation 38 to mandate Statement of Beneficial Ownership – Detailing all natural persons who ultimately own/control the RA, shareholding structure, and jurisdiction of each intermediate entity & Affidavit – Stating RA’s eligibility (or ineligibility) for Section 32A immunity. Format to be prescribed by IBBI, likely harmonised with Companies Act SBO & PMLA BO formats. The Objective: Greater transparency, due diligence accuracy, and prevention of conflicted/ineligible bidders.

Practical Compliance Approach for Ras : Prepare an ownership chart from the applicant entity up to natural persons holding ≥10% (or per prescribed threshold). ownership Disclose Name, nationality, date of birth, Percentage of ownership/control, Mode of control (shareholding, voting rights, agreements), Jurisdiction & regulatory details of intermediate entities, Provide supporting documents (share registers, board resolutions, KYC).

Benefits for CIRP

  • For CoC: Informed decision-making and reduced risk of plan rejection by NCLT.
  • For RP: Easier verification of Section 29A & 32A compliance.
  • For Process Integrity: Prevents misuse of IBC as a shield by wrongdoers.

Key Regulatory Proposals Measures to Enhance Integrity of the CIRP

  • Recording CoC Deliberations on RA Eligibility (Section 29A) : Mandating formal documentation of Committee of Creditors discussions and decisions on whether the Resolution Applicant meets Section 29A eligibility.
  • Enhanced Disclosures in Resolution Plans (Section 32A) : Requiring detailed disclosures in resolution plans regarding applicability and scope of immunity under Section 32A.
  • Electronic Platform for Resolution Plan Invitation & Submission: Moving to a secure, tech-driven platform for inviting and receiving resolution plans to ensure confidentiality, reduce delays, and improve traceability.

Public Comments : IBBI invites feedback from stakeholders on these proposals and the accompanying draft regulations. Comments will be considered before finalising amendments u/s 196(1)(aa) & (t) of the Code. Submission process is detailed on Page 7 of the paper.

Proposal 1 – Recording of CoC’s Deliberation on RA’s Eligibility (Section 29A)

Current Framework & Gap in Integrity of the CIRP

  • Regulation 36A (Corporate Insolvency Resolution Process Regulations) requires Form G to mention Section 29A ineligibility norms and the EOI to have an unconditional undertaking of eligibility.
  • Regulation 38 requires the Resolution Professional to conduct due diligence to ensure RA’s compliance with Section 29A.
  • Section 30 + Regulation 39 require an affidavit from RA confirming eligibility.
  • Form H (Compliance Certificate) requires RP to confirm affidavit correctness and attach a Due Diligence Certificate u/s 29A.

Gap Identified: While RP and RA have explicit responsibilities regarding Section 29A compliance, there is no explicit provision requiring the Committee of Creditors to formally record its deliberations on RA eligibility, even though it is implied that CoC considers this in exercising its commercial wisdom.

Proposed Change : Make it mandatory for Committee of Creditors to formally discuss and record deliberations on RA’s Section 29A eligibility in Committee of Creditors meetings. Deliberations to be based on

    • RP’s due diligence report
    • RA’s affidavit of eligibility
    • Other relevant plan documents

Expected Benefits:

  1. Greater Engagement: Committee of Creditors members will more actively review eligibility and may seek clarifications or further information.
  2. Reduced Litigation : Clear documentation will help in disputes related to Section 29A compliance.
  3. Enhanced Transparency : Records of Committee of Creditors discussion will demonstrate due process.
  4. Alignment with Legislative Intent : Promotes fair and lawful participation in CIRP.

Proposed Solution : Amend CIRP Regulations to make it mandatory for the Committee of Creditors to: Deliberate on the eligibility of the Resolution Applicant under Section 29A. Review:

      • Due diligence report from the Resolution Professional.
      • Affidavit from the RA confirming eligibility.
      • Any other relevant information in the resolution plan.

Before voting on the resolution plan. & The Resolution Professional must record details of the Committee of Creditors deliberations in the meeting minutes.

Proposed Draft Regulation : Insertion after Regulation 39(3B) of the Corporate Insolvency Resolution Process Regulations:

“(3C) The committee shall, before voting on a resolution plan under sub-regulation (3) above, deliberate on the eligibility of the resolution applicant under section 29A, due diligence report submitted by the resolution professional, the affidavit of the resolution applicant and such other information as provided in the resolution plan, and the resolution professional shall record the committee’s deliberations in the minutes of the meeting.”

Proposal 2 – Enhanced Disclosures in Resolution Plans Regarding Section 32A

Section 32A provides immunity to the corporate debtor and its property from prosecution for offences committed before the start of Corporate Insolvency Resolution Process, if there is a change in management/control to a person who Is not a promoter, in management, or a related party. And Is not accused of having abetted/conspired in the offence (per investigating authority’s records).

Challenge under the proposal : Complex and multilayered ownership structures can obscure the ultimate beneficial owners. Without clear disclosure, it’s difficult to verify eligibility for Section 32A benefits. & This risks misuse of the “clean slate” principle under IBC.

Proposed Solution : Amend Regulation 38 to make it mandatory for every Prospective Resolution Applicant to submit, as part of the resolution plan:

  • Statement of Beneficial Ownership – Specified format, detailing all natural persons who ultimately own or control the PRA, including Shareholding structure. & Jurisdiction of each intermediate entity in the ownership chain.
  • Affidavit – Specified format, stating whether the PRA is eligible/not eligible for Section 32A benefits.

Proposed Draft Regulation Insertion after Regulation 38(3):

“(3A) Every resolution plan shall include:

(a) a statement of beneficial-ownership, in a format specified by the Board, covering details of all natural persons who ultimately owns or controls the resolution applicant, together with the shareholding structure and jurisdiction of each intermediate entity; and

(b) an affidavit, in a format specified by the Board, that the resolution applicant is eligible / not eligible for the benefit of section 32A.”

Expected Impact

  • Better identification of actual beneficiaries.
  • Stronger transparency and informed decision-making for Committee of Creditors and RP.
  • Deterrence of ineligible/conflicted bidders.
  • Reduced misuse of immunity provisions.

Proposal 3 – Invitation and Submission of Resolution Plans through Electronic Platform

Background & Problem

  • From April 1, 2025, IBBI has mandated the use of a specified online auction platform for liquidation auctions — this has successfully streamlined and digitized liquidation processes. The Standing Committee on Finance recommended a central online portal for direct submission of resolution plans, ensuring:
    • Confidentiality of sensitive commercial information.
    • Prevention of undue advantage to any party.
  • The IIIPI Study Group in May 2025 also supported using the eBkray portal for resolution proposals to reduce information asymmetry. Current practice lacks a secure, centralised, tech-enabled method for receiving and inviting resolution plans, risking procedural inefficiencies and confidentiality breaches.

Proposed Solution

  • Amend CIRP Regulations to empower IBBI to notify an online platform for Invitation of resolution plans, Submission of resolution plans. The process would be exclusively digital, similar to liquidation auctions.
  • Objective: Extend fairness, transparency, efficiency, and data security to CIRP resolution plan submissions.

Proposed Draft Regulation : Insertion after Regulation 36A:

“36AA. Invitation and submission of resolution plan via online electronic platform.

The Board may, by circular and with effect from such date as specified therein, mandate that any activity, in relation to invitation and submission of resolution plans, shall be carried out exclusively through an electronic platform recognised by the Board.”

Expected Benefits

  • Confidentiality: Sensitive information remains protected.
  • Transparency: All submissions via a single recognised platform.
  • Efficiency: Streamlined process with reduced administrative delays.
  • Consistency: Aligns with the successful model already used in liquidation auctions

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