As per Section 2(1B) of the Income Tax Act, 1961, unless the context otherwise requires, the term “amalgamation”, in relation to companies, means the merger of one or more companies with another company or the merger of two or more companies to form one company (the company or companies which so merge being referred to as the amalgamating company or companies and the company with which they merge or which is formed as a result of the merger, as the amalgamated company) in such a manner that-
(i) all the property of the amalgamating company or companies immediately before the amalgamation becomes the property of the amalgamated company by virtue of the amalgamation;
(ii) all the liabilities of the amalgamating company or companies immediately before the amalgamation become the liabilities of the amalgamated company by virtue of the amalgamation;
(iii) shareholders holding not less than three-fourths in value of the shares in the amalgamating company or companies (other than shares already held therein immediately before the amalgamation by, or by a nominee for, the amalgamated company or its subsidiary) become shareholders of the amalgamated company by virtue of the amalgamation,
otherwise than as a result of the acquisition of the property of one company by another company pursuant to the purchase of such property by the other company or as a result of the distribution of such property to the other company after the winding up of the first-mentioned company.
It may be noted that while evaluating the tax implications of restructuring, its very important to know the definition of the term ‘Amalgamation’ as per Income Tax. The above definition prescribes various conditions for ‘tax neutrality’ status of ‘amalgamation’ under the Income Tax Act, 1961.
Third clause/ condition of Section 2(1B) prescribes that at least 75% shareholders must continue in amalgamated company, i.e. even after the ‘Appointed Date’ from which the amalgamation takes place on record. What to do in case there is a time lag between the said Appointed date and the effective date of share issuance, as the shares can not be issued retrospectively from the ‘Appointed date’?