We live in a corporate era where restructuring through mergers and demergers is quite common. However, it is critical to understand the Income Tax implications of such strategic restructuring moves in order to confirm that ‘tax neutrality’ status will be actionable in the given circumstances and that no unknown tax liability will arise from capital gains/dividends under the amalgamation/demerger scheme, in the case of the amalgamated/resulting Indian Company.
The significance of business restructuring for commercial reasons has been duly recognised under the Income Tax Act, and accordingly, commensurate provisions relating to ‘tax neutrality’ of such transactions have been made thereunder, to cover amalgamations/demergers as well as intra group transfer of assets between Subsidiary and Holding companies, provided certain conditions are complied with.
Definition of Demerger: Section 2(19AA) Income Tax
As per Section 2(19AA) of the Income Tax Act, 1961, unless the context otherwise requires, the term “demerger”, in relation to companies, means the transfer, pursuant to a scheme of arrangement under sections 391 to 394 of the Companies Act, 1956 (1 of 1956), by a demerged company of its one or more undertakings to any resulting company in such a manner that-
(i) all the property of the undertaking, being transferred by the demerged company, immediately before the demerger, becomes the property of the resulting company by virtue of the demerger;
(ii) all the liabilities relatable to the undertaking, being transferred by the demerged company, immediately before the demerger, become the liabilities of the resulting company by virtue of the demerger;
(iii) the property and the liabilities of the undertaking or undertakings being transferred by the demerged company are transferred at values appearing in its books of account immediately before the demerger;
Provided that the provisions of this sub-clause shall not apply where the resulting company records the value of the property and the liabilities of the undertaking or undertakings at a value different from the value appearing in the books of account of the demerged company, immediately before the demerger, in compliance to the Indian Accounting Standards specified in Annexure to the Companies (Indian Accounting Standards) Rules, 2015.
(iv) the resulting company issues, in consideration of the demerger, its shares to the shareholders of the demerged company on a proportionate basis except where the resulting company itself is a shareholder of the demerged company;
(v) the shareholders holding not less than three-fourths in value of the shares in the demerged company (other than shares already held therein immediately before the demerger, or by a nominee for, the resulting company or, its subsidiary) become shareholders of the resulting company or companies by virtue of the demerger, otherwise than as a result of the acquisition of the property or assets of the demerged company or any undertaking thereof by the resulting company;
(vi) the transfer of the undertaking is on a going concern basis;
(vii) the demerger is in accordance with the conditions, if any, notified under sub-section (5) of section 72A by the Central Government in this behalf.
Explanations:
1. For the purposes of this clause, “undertaking” shall include any part of an undertaking, or a unit or division of an undertaking or a business activity taken as a whole, but does not include individual assets or liabilities or any combination thereof not constituting a business activity.
2. For the purposes of this clause, the liabilities referred to in sub-clause (ii), shall include-
(a) the liabilities which arise out of the activities or operations of the undertaking;
(b) the specific loans or borrowings (including debentures) raised, incurred and utilised solely for the activities or operations of the undertaking; and
(c) in cases, other than those referred to in clause (a) or clause (b), so much of the amounts of general or multipurpose borrowings, if any, of the demerged company as stand in the same proportion which the value of the assets transferred in a demerger bears to the total value of the assets of such demerged company immediately before the demerger.
3. For determining the value of the property referred to in sub-clause (iii), any change in the value of assets consequent to their revaluation shall be ignored.
4. For the purposes of this clause, the splitting up or the reconstruction of any authority or a body constituted or established under a Central, State or Provincial Act, or a local authority or a public sector company, into separate authorities or bodies or local authorities or companies, as the case may be, shall be deemed to be a demerger if such split up or reconstruction fulfills such conditions as may be notified in the Official Gazette, by the Central Government.
5. For the purposes of this clause, the reconstruction or splitting up of a company, which ceased to be a public sector company as a result of transfer of its shares by the Central Government, into separate companies, shall be deemed to be a demerger, if such reconstruction or splitting up has been made to give effect to any condition attached to the said transfer of shares and also fulfils such other conditions as may be notified by the Central Government in the Official Gazette.
6. For the purposes of this clause, the reconstruction or splitting up of a public sector company into separate companies shall be deemed to be a demerger, if such reconstruction or splitting up has been made to transfer any asset of the demerged company to the resulting company and the resulting company,-
(i) is a public sector company on the appointed day indicated in such scheme, as may be approved by the Central Government or any other body authorised under the provisions of the Companies Act, 2013 (18 of 2013) or any other law for the time being in force governing such public sector companies in this behalf; and
(ii) fulfils such other conditions as may be notified by the Central Government in the Official Gazette in this behalf.
Definition of Demerged Company: Section 2(19AAA) Income Tax
As per Section 2(19AA) of the Income Tax Act, 1961, unless the context otherwise requires, the term “Demerged Company” means the company whose undertaking is transferred, pursuant to a demerger, to a resulting company.
What if post demerger, 3/4th shareholding condition is violated? What are the possible consequences? If possible will any one quote any case law on the issue stated above?
Demerger defined in I-T Section 2(19AA) is exclusively meant for use in the case of corporate entities, i.e. it cannot be used by other forms of organizations, e.g. individuals, firms, LLPs or companies, unlike ‘slump sale’ defined in section 2(42C) which is applicable to all forms of organizations. Demerger does not cause income-tax liability, whereas ‘slump sale’ is taxed under the head ‘capital gains’.