My post budget reflections on the budget that “was not” rather than what it was, particularly in the context of M&A
Introduction – As the initial tide subsides around the recent budget that was, it would be
important to address the issues vis-à-vis the budget that was not, particularly from a mergers and acquisitions (M&A) perspective which remains a key driver for inorganic growth for corporate India.
- Definition of Undertaking vis-a-vis Section 2(19AA)
Current Scenario: Section 2(19AA) of the Income-tax Act, 1961 (“ITA”) lays
down various conditions for a ‘demerger’ to be considered as tax neutral.
One of the major conditions is that in order for a demerger to be tax
neutral, it should be a demerger of an “Undertaking”. However, there is
ambiguity regarding whether a business conducted through a subsidiary
qualifies as “Undertaking”.
Issue: This lack of clarity poses a significant challenge. For instance, if a
parent company demerges the shares of a wholly owned subsidiary,
whether the said “shares” would, in itself, be considered as a “Undertaking”.
If not, then the demerger, per se, could be considered as non-tax neutral.
Dissecting Way forward: There could be various sectors, such as infra,
financial services, etc. where statutorily, a company is required to carry on
business through a subsidiary. Similarly, from a commercial perspective, in
order to ring fence a flagship company, or where a business is carried on as
a joint venture through an investee company, it could be surmised that the
business carried out by the subsidiary/ investee company of the flagship
company is but a natural extension of the business carried out by the
flagship company. In this scenario, a clarification to the definition of
“Undertaking” to provide that undertaking includes business carried on by
the demerged company or its subsidiaries/ investee companies, is the need
of the hour. - Section 72A – Carry Forward of Losses
Current Scenario: Section 72A of the ITA allows the carry forward and set
off of accumulated losses and unabsorbed depreciation in cases of
amalgamation, but this benefit is largely restricted to the manufacturing
sector.
Issue: The exclusion of other sectors, such as new-age technology
companies, NBFCs, and service industries, ignores their growing
importance in the economy. For example, tech startups, which often incur
significant initial losses, could benefit immensely from such provisions to
support their growth and innovation.
Dissecting Way forward: Extending the benefits of Section 72A to all
sectors would acknowledge the diverse economic landscape. This change
would support the growth and consolidation of tech companies, NBFCs,
and service-oriented businesses, fostering a more inclusive and dynamic
economic environment. - Section 79 – Lapse of Losses on Change of Ownership
Current Scenario: Section 79 of the ITA provides that a company cannot
carry forward and set off losses if there is a change in the beneficial
ownership of shares beyond 51%, with some exceptions.
Issue: This provision can penalize group restructuring where registered
ownership changes but beneficial ownership remains within the group. For
example, in a group restructuring where shares are transferred among
group entities to optimize operational efficiencies, the current rules could
result in the lapse of valuable tax losses. - Dissecting Way forward: Amending Section 79 to allow the carry forward of losses in cases where beneficial ownership within a group remains unchanged, even if registered ownership changes, would facilitate strategic realignments and optimal resource allocation within business groups.
- Valuation Mismatch – Sections 50CA and 56(2)(x)
Current Scenario: Sections 50CA and 56(2)(x) govern the tax implications
of the transfer of unlisted shares, often resulting in valuation mismatches
between commercially negotiated prices and tax valuations.
Issue: These mismatches can lead to substantial tax liabilities, deterring
genuine transactions. For instance, if a company’s shares are valued higher
on the basis of Rule 11UA than the commercially negotiated price, the
seller could face a significant tax burden, discouraging M&A activities.
Proposed Solution: Introducing a more pragmatic approach to align tax
valuations with market realities is essential. Accepting independent
valuation reports or introducing safe harbour provisions could mitigate
these issues, fostering a more vibrant and less contentious M&A
environment. - Ambiguity on Section 55(2)(ac) – Grandfathering of Cost
Current Scenario: Section 55(2)(ac) addresses the cost of acquisition of
assets, including provisions for grandfathering, allowing taxpayers to
consider the fair market value as of a specified date.
Issue: Ambiguity exists regarding the application of these grandfathering
provisions to all transactions involving shares, especially in M&A contexts.
For example, if shares are acquired as part of a merger, it’s unclear whether
the cost of acquisition can be grandfathered, leading to potential disputes
and inconsistent tax treatments. - Dissecting Way forward: Clarifying that the grandfathering provisions under Section 55(2)(ac) apply uniformly to all M&A transactions would provide consistency and certainty. This clarification would aid in reduce litigation risks, making the M&A process smoother and more predictable.
Way Forward
M&A is pivotal for the inorganic growth of corporate India. Reducing
uncertainties in M&A transactions would significantly contribute to value
creation and overall growth. M&A needs to be approached in an integrated
manner, addressing not only tax uncertainties but also regulatory
ambiguities and procedural delays under the Companies Act, 2013, SEBI
regulations, and FEMA guidelines.
Additionally, transaction costs, such as stamp duty linked to the transaction
value, warrant re-evaluation to facilitate smoother and more cost-effective
deals. Streamlining these aspects will foster a more robust M&A
environment, enabling corporate India to thrive and expand more
efficiently.