Corporate Restructuring : Amalgamations,demerger ,Spinoff, Capital reduction - Companies Act and Income tax act implications

The Framework under companies Act

Chapter XV of the 2013 Act deals with "Compromises, Arrangements and Amalgamations." In this chapter, the Act consolidates the applicable provisions and related issues of compromises, arrangements and amalgamations; however, other provisions are also attracted at different stages of the process. Amalgamation means an amalgamation pursuant to the provisions of the Act. In an amalgamation the undertaking comprising of property, assets and liabilities, of one (or more) company are absorbed by and transferred either to an existing company or a new company. Simply put, the transferor integrates with the transferee and the former loses its entity and dissolves without winding-up. The 2013 Act creates a new regulator, the National Law Company Tribunal ("Tribunal") who, upon its constitution, will assume jurisdiction (the High Courts will no longer have any jurisdiction) of the court for sanctioning mergers. Once the Tribunal is constituted, expected to be formed sometime this year, and related rules finalized, the provisions under the 2013 Act would be implemented.
Before detailing the key changes under the new law, a brief overview of the existing process will be useful. Under the 1956 Act, companies which have reached a consensus to merge must prepare a "scheme" of amalgamation/merger ("Scheme"). The lenders (financial institutions or banks) of the transferor and the transferee must approve1 the Scheme in-principle, followed by the subsequent approval of the respective Board of Directors of the merging entities. If the merging entities are listed companies, then the listing agreements executed with the stock-exchanges require the company to communicate price-sensitive information to the stock exchange immediately, to seek an approval from the capital market regulator, Securities and Exchange Board of India ("SEBI") simultaneous with the public notification. This essentially happens after the approval of the Board to the Scheme. The next step is to apply2 to the High Court having jurisdiction over the registered office of the company seeking an order to convene shareholders and creditors meeting. Without getting into further details of the process, the key point is that any objector amongst the stakeholders can object to the Scheme in the court proceedings.
The element of preparing the Scheme has been retained under the 2013 Act. Unlike the 1956 Act, the new regime (a)recognizes cross border mergers, (b) sets out separate procedure for merger of small companies and those of holding with wholly-owned, (c) prescribes thresholds for objections, and (d) describes mandatory filings to ensure legal compliance.

The Changes to the process

  1. Regulatory/Third party approvals: As shareholders' and creditors' consents are essential, the 1956 Act, therefore, contemplates issue of a notice to them. The 2013 Act requires service of the notice of the merger along with documents (such as copy of the Scheme and valuation report) not only upon the shareholders and creditors but also on various regulators including the Ministry of Corporate Affairs (through Regional Director, Registrar of Companies and Official Liquidator),4 Reserve Bank of India ("RBI") (where non-resident investors are involved), SEBI (only for listed companies), Competition Commission of India (where the prescribed fiscal thresholds are crossed and the proposed merger could have an adverse effect on competition), Stock Exchanges (only for listed companies), Income Tax authorities and other sector regulators or authorities which are likely to be affected by the merger.5 This ensures compliance of the Scheme with other regulatory requirements imposed on the merging entities. In fact, under the 1956 Act the courts have made mergers subject to approval of the regulators. The 2013 Act prescribes a 30 day time frame for the regulators to make representations, failing which the right would cease to exist. This is a positive step because in the 1956 Act no such time frame was provided leading to considerable delays in the court proceedings.
  2. Approval of the Scheme through postal ballot6: The 1956 Act required presence of the shareholders and creditors in the physical meetings, either in person or by proxy, to cast vote for/against the Scheme. In the 2013 Act, the shareholders and creditors also have the option to cast vote through postal ballot while considering a Scheme. The 1956 Act did not allow this and the shareholders and creditors could only cast votes physically. This right will ensure wider participation of the shareholders and creditors, particularly for those who are scattered all over the country and who find it difficult to be either physically present or provide a proxy. Postal ballot, therefore, will offer them a greater flexibility to cast their votes.
  3. Valuation Report: Though the 1956 Act is silent on disclosing the valuation report to the stakeholders, as a matter of transparency and good corporate governance, the listed companies used to make available the valuation report for inspection and also during the course of the meetings. Courts also required annexing of the valuation report to the application submitted before them. The 2013 Act now mandates annexing of the valuation report to the notices for the meetings to enable ready access to the shareholders and creditors7.
  4. Objections8: A bane under the 1956 Act was that it permitted the individual shareholders and creditors to raise frivolous objections to arm-twist and unnecessarily harass the companies following the meetings. Such right to object to the Scheme would no longer be available to any and every person. Objections can be raised by shareholders holding 10% or more equity and creditors whose debt represent 5% or more of the total debt as per the last audited financial statements. By raising the bar, the new law aims to ensure that the frivolous objections/litigation can be avoided.
  5. Accounting Standards9: As a matter of practice, frequently the Scheme provided for accounting treatment that would deviate from the prescribed accounting standards necessitating a note to this effect in the balance sheet of the company. This was frowned upon by the tax authorities. Consequently, in case of listed companies, the listing agreement was amended to provide that an auditor's certificate stating that the accounting treatment is in accordance with the accounting standards was required to be filed for seeking approval of the stock exchanges. The 2013 Act makes such prior certification from an auditor mandatory for both listed and unlisted companies.
  6. Merger of a listed company into an unlisted one:10The 2013 Act specifically provides for the Tribunal's order to state that the merger of a listed company into an unlisted company will not ipso facto make the unlisted company listed. It will continue to be unlisted until the applicable listing regulations and SEBI guidelines in relation to allotment of shares to public shareholders are complied with. Further, in case the shareholders of the listed company decide to exit, the unlisted company would facilitate the exit with a pre-determined price formula which shall be within the price specified by SEBI regulations. The Indian securities law prescribes strict enforcement of listing requirements by companies intending to get listed. SEBI had, however, eased these requirements for listed companies proposing merger by granting them exemptions from complying with the initial public offering requirements11 on a case-to-case basis. Recently SEBI had issued guidelines12 stating that if the Scheme provides for listing of shares of an unlisted company without complying with the initial public offering requirements, then, upon court approval of the Scheme, the unlisted company has to file a specific application seeking such exemption from SEBI. Such an application has to be filed upon, inter-alia, allotment of equity shares to the holders of securities of the listed company.13 The changes under the 2013 Act are in line with SEBI requirements. The 1956 Act was silent on this aspect.

Fast Track Mergers for special cases

Apart from the aforesaid changes, the 2013 Act provides for separate provisions for cross border mergers, merger of two small companies and that of holding with wholly-owned subsidiaries. These are described briefly below.

  1. Cross-border mergers: The 1956 Act permits cross-border mergers only where the transferor is a foreign company. In contrast, the 2013 Act permits in-principle mergers between an Indian and a foreign company located in a jurisdiction notified by the central government in periodic consultation with RBI. Such a merger would be subject to RBI approval and Scheme may provide payment in cash or depository receipts or both. The payment in cash or depository receipts would facilitate exit to the shareholders of the merging entity who do not want to be a part of the merged entity. These changes reflect the legislature's intent to facilitate cross-border business. The Income Tax Act presently grants tax exemptions on mergers if the transferee is an Indian company and does not recognize a situation where the transferee will be a foreign company, as contemplated under the 2013 Act. The introduction of cross-border mergers under the 2013 Act may, therefore, require corresponding changes in other laws, including foreign exchange and tax.
  2. Merger of "small companies" and holding with wholly-owned subsidiaries: Unlike the 1956 Act under which merger of all companies, irrespective of nature and size requires court approval, the 2013 Act carves out a separate procedure for small companies and the holding and wholly-owned subsidiaries. Section 233 of the 2013 Act prescribes a simplified fast track procedure for their merger which requires consent of shareholders holding 90% in value and creditors representing 9/10th of debt in value as well as approval of the Scheme by the Regional Director, Ministry of Corporate Affairs in case no objections are received from the Official Liquidator and Registrar of Companies. Approval of the Tribunal is not required for such mergers. This could be good news for the merging entities who may not be required to (i) file documents required to be filed under the listing agreement, in the case of listed companies, (ii) give notice to various authorities, (iii) provide auditor's certificate of compliance with applicable accounting standards. However, if the Regional Director is of the opinion that the Scheme is not in the interest of the stakeholders, he may approach the Tribunal who could follow the merger procedure prescribed under the 2013 Act. This ability to transfer to the Tribunal has the potential to change fast-track to a normal merger and make such mergers less appealing.


Taxability of gains arising on slump sale 

Section 50B provides the mechanism for computation of capital gains arising on slump sale. On a plain reading of the Section, some basic points which arise are :

1. S. 50B reads as ‘Special provision for computation of capital gains in case of slump sale’. Since slump sale is governed by a ‘special provision’, this Section overrides all other provisions of the Act.
2. Capital gains arising on transfer of an undertaking are deemed to be long-term capital gains. However, if the undertaking is ‘owned and held’ for not more than 36 months immediately before the date of transfer, gains shall be treated as short-term capital gains
3. Taxability arises in the year of transfer of the undertaking. The undertaking will be deemed to be transferred on execution of the agreement and registration thereof coupled with the handing over of possession of the undertaking to the transferee. However, if the year of the agreement of the undertaking and registration thereof and the year of its possession fall in two different previous years, then the previous year in which the possession of the undertaking is handed over to the transferee will be considered as the year of transfer.
4. Capital gains arising on slump sale are calculated as the difference between sale consideration and the net worth of the undertaking. Net worth is deemed to be the cost of acquisition and cost of improvement for S. 48 and S. 49 of the Act.
5. As per S. 50B, no indexation benefit is available on cost of acquisition, i.e., net worth.

In the year of transfer of the undertaking, the assessee has to furnish an accountant’s report in Form 3CEA along with the return of income indicating the computation of net worth arrived at and certifying that the figure of net worth has been correctly arrived at. Although the certification of computation is based on the information and explanations obtained by the accountant, the essence of the form is on reporting that the computation is ‘true and correct’ rather than ‘true and fair’.

Tax implications of Amalgamation

Tax implications of demerger 

(i)Tax neutrality of the assets transferred to resulting company.
(ii)To extend the benefit of carry forward of loss or depreciation relating to transferred undertaking to resulting company.
(iii)To extend the benefits like S. 80IA, S. 80IB, etc. to the split off unit.
(iv)To allow the expenditure incurred for demerger.
(v)Tax neutrality of the demerger for the shareholders of demerged company.

Any institution, association or body assessed as company or declared by the CBDT as a company.

Conditions of demerger (S. 19AA) :
Conditions :
(i)The transfer is pursuant to a scheme of arrangement u/s.391 to u/s.394 of the Companies Act, 1956.
(ii)Transfer of all the assets/ liabilities of one or more undertakings by a demerged company to any resulting company at book value on going concern basis, otherwise than by way of acquisition.
(iii)The resulting company issues shares to the shareholders of demerged com-pany on proportionate basis.
(iv)Shareholders holding at least 75% of the share capital become shareholders of resulting company.

Taxation of shareholders in demerged company : 
(i)Dividend : S. 2(22) has been amended by inserting a new clause (v) to provide that no dividend income shall arise in the hands of shareholders of demerged company on demerger.
(ii)Capital gains : A new clause (vid) in S. 47 has been inserted to provide that no capital gains shall arise to shareholders of the demerged company on account of receipt of any shares from the resulting company.
Tax benefits to resulting company : 
(i)Expenses incurred for the purpose of amalgamation or demerger shall be allowed @20% every year from the year in which the demerger takes place.
(ii)Depreciation shall be apportioned between the demerged company and the resulting company in the ratio of number of days for which the assets were used by them.
(iii)The accumulated losses and unabsorbed depreciation in a demerger shall be allowed to be carried forward by the resulting company.

Transaction not to be regarded as transfer
(S. 47 [vib], [vic], [vid]) :

Conditions : 
(i)Resulting company is an Indian company.
(ii)Transfer of shares in an Indian company held by the demerged foreign company to resulting foreign company if
— 75% of the shareholders of demerged foreign company continue to remain shareholders of the resulting foreign company.
— Capital gains tax is not attracted on the demerged foreign company in the country of its incorporation and S. 391 to S. 394 of the Companies Act will not be applicable.
(iii)transfer or issue of shares by the resulting company to the shareholders of the demerged company.

Amortisation of expenditure in case of amalgamation or demerger (S. 35DD) :
Expenses by an Indian company incurred after 1-4-1999 for amal-gamation or demerger of an undertaking, shall be amortised @20% each year starting from the year in which amalgamation or demerger takes place.

Cost of shares acquired in the scheme of demerger (S. 49) : 
(i)Cost of acquisition of shares in the resulting company shall be the proportion of the cost in the demerged company in the assets transferred bears to the net worth of the demerged company. (S. 49[2C]).
(ii)The cost of acquisition of shares in the demerged company shall be reduced by the proportion being the ratio which the net book value of the assets transferred bears to the net worth of the demerged company. (S. 49[2D]).

Demerger Vs. Hiving - Off

1. Consideration:
In case of Hiving- off, the payment of a lump sum sale consideration is required in respect of transfer of an undertaking by slump sale in demerger the resulting Co. issues, in consideration of the demerger, it shares to the shareholder of the demerged Co. on a proportionate basis.

2. Valuation of Asset:
In Hiving- off values are not assigned to individual assets and liabilities of the undertaking, whereas in case of demerger, the assets and liabilities of the demerged Co. are transferred at the value appearing at the books of accounts immediately before the demerger to the resulting Co.

3. Carry Forward of Depreciation:
In Hiving- off unabsorbed depreciation/loss can be carried forward only by a transferor Co, whereas in the case of demerger, the resulting Co. avails the benefit of such depreciation/loss.

4. Cost of Assets in Hands of the Transferee:
In a slump sale, to determine the actual cost of assets transferred, the lump sum consideration received is apportioned in fair and reasonable manner among the assets, whereas in the case of demerger the assets are valued at the book value as appearing in the books of transferor.


Corporate Restructuring 

Corporate Restructuring means rearranging the business of a company for increasing its efficiency and profitability. It is tool to catapult value to the organization as well as to the investors. It is the fundamental change in a company's business or financial structure with the motive of increasing the company's value to shareholders or creditors.

 Restructuring is a method of changing the organizational structure in order to achieve the strategic goals of the organization. Corporate Restructuring is a wide expression and it includes various kinds of tools. Thus, it is the purpose or objective of the organization which will determine the kind of too to be used in corporate restructuring.

Hence, corporate restructuring is a comprehensive process by which a company can consolidate its business operations and strengthen its position for achieving its short-term and long-term corporate objectives. Corporate restructuring is vital for survival of a company in competitive environment.

A restructuring wave is sweeping the corporate world. Corporate India is witnessing a restructuring revolution. The somewhat guarded, tentative response of the early years of economic reforms is slowly giving place to more decisive initiatives in corporate restructuring. Consolidation at the group and industry levels through mergers and acquisitions, strategic divestitures to permit sharper focus, strategic alliances and to a lesser extent demergers and spin - offs etc; are transforming the ownership profile and competitive structure of the Indian Industry. Takeovers, mergers and acquisition activities continue to accelerate. From banking to oil exploration and telecommunication to power generation, companies are coming together as never before. Not only these new industries like biotechnology have been exploding but also the old industries are being transformed. Corporate restructuring through acquisition, amalgamations, mergers, arrangements and takeovers has become integral to corporate strategy today.

In India, the concept has caught like wildfire with a merger or two reported every now and then. The process of restructuring through mergers and amalgamations has been a regular feature in the developed and free economy nations like USA and European countries, more particularly UK, where hundreds of mergers take place every year.
 Courts too have been sympathetic towards merger, the classic example being the following remarks of Supreme Court in the HLL-TOMCO merger case:
In this era of hyper-competitive capitalism and technological change, industrialists have realized that merger/acquisitions are perhaps the best route to reach a size comparable to global companies so as to effectively compete with them. The harsh reality of globalization has dawned that companies which cannot compete globally must sell-out as an inevitable alternative.


Following are some of the main purposes of Corporate Restructuring:

1)      To expand the business or operations of the company.
2)      To carry on the business of the company more economically or more efficiently
3)      To focus on core strength
4)      Cost Reduction by deriving the benefits of economies of scale.
5)      Obtaining tax advantage by merging a loss making company with a profit making company.
6)      To have access to better technology.
7)      To improve debt-equity ratio.
8)      To have better market share.
9)      To overcome significant problems in a company.
10)  To become Globally Competitive.
11)  To eliminate competition between the companies.
12)  In the public interest (by the Central Government in exercise of the powers conferred by section 396).


Following are some of the important tools or strategies of corporate restructuring discussed in brief just to give a basic idea.

 The term amalgamation is not defined under Companies Act, 1956. Generally  speaking, amalgamation is a legal process by which two or more companies are joined together to form a new entity or one or more companies are to be absorbed or blended with another and as a consequence the amalgamating company loses its existence and its shareholder become the shareholder of the new or amalgamated company.

 Merger is an arrangement whereby the assets of two or more companies become vested in or under the control of one company, which may or may not be one of the original two companies, which has as its shareholders, all or substantially all, the shareholders of the two company. Merger is a tool used by companies for the purpose of expanding their operations often aiming at an increase of their long term profitability. It is a combination of two or more business enterprises into a single enterprise. Mergers occur in a consensual (occurring by mutual consent) setting where executives from the target company help those from the purchaser in a due diligence process to ensure that the deal is beneficial to both parties. Mergers can be of three types; namely:

a)      Horizontal Mergers: A horizontal merger is when two companies competing in the same market merge or join together. This type of merger can either have a very large effect or little to no effect on the market. When two extremely small companies combine, or horizontally merge, the results of the merger are less noticeable. These smaller horizontal mergers are very common. In a large horizontal merger, however, the resulting ripple effects can be felt throughout the market sector and sometimes throughout the whole economy.

b)      Vertical Mergers: A merger between two companies producing different goods or services for one specific finished product. By directly merging with suppliers, a company can decrease reliance and increase profitability. An example of a vertical merger is a car manufacturer purchasing a tire company. Vertical Mergers can be in the form of Forward Integration of Business [E.g. A manufacturing company entering in the Direct Marketing Function. which was not its foray in the erstwhile times) or in the form of Backward Integration of Business [E.g. A manufacturing company also focusing on the producing the required raw materials and managing its supply chain activities on its own . which was not its foray earlier].

c)      Conglomerates merger: This type of merger involves mergers of corporates in unrelated lines of businesses activity to achieve three objectives; (a). Product Extension (b). Entry into new Geographic Markets (c). Entry into unrelated yet profitable businesses. E.g. most big business houses such as Reliance Industries, Aditya Birla Group, etc. undertake such mergers to expand their businesses.

 Demerger means division or separation of different undertakings of a business functioning hitherto under a common corporate umbrella. A scheme of demerger is, in effect, a corporate partition of a company into two undertakings, thereby retaining one undertaking with it and transferring the other undertaking to the resulting company. The resulting company issues its shares at the agreed exchange ratio to the shareholders of the demerged company. The demerger of the Reliance group is by far the biggest corporate restructure story in the private sector.

Reverse Merger
 Reverse merger is an alternative method for private companies to become public, without going through the long and convoluted process of traditional Initial Public Offering. In a reverse merger, a private company acquires a public entity by owning the majority shares of the public entity .The private company takes on the corporate structure of the public entity, with its own company name. Reverse mergers allow a private company to become public without raising capital, which considerably simplifies the process. While conventional IPOs can take months (even over a calendar year) to materialize, reverse mergers can take only a few weeks to complete (in some cases, in as little as 30 days). This saves management a lot of time and energy, ensuring that there is sufficient time devoted to running the company.

Slump Sale 
Slump sale means the transfer of one or more undertakings as a result of the sale for a lump sum consideration without values being assigned to the individual assets and liabilities in such sales. In a slump sale, a company sells or disposes off whole or substantially the whole of its undertaking for a lump sum pre determined consideration, called the slump price. In a slump sale, an acquiring company may not be interested in buying the whole company, but only one of its division or a running undertaking on a going concern basis. In simple words, slump sale is nothing but transfer of a whole or part of business concern as a going concern; lock, stock and barrel.

 An acquisition, also known as a takeover, is the buying of one company (the target) by another. An acquisition may be friendly or hostile. In the former case, the companies cooperate in negotiations; in the latter case, the takeover target is unwilling to be bought or the target's board has no prior knowledge of the offer. Acquisition usually refers to a purchase of a smaller firm by a larger one. The objective is to consolidate and acquire large share of the market.

 Types of Takeover:

a)      Friendly or Negotiated Takeover: Friendly takeover means takeover of one company by change in its management & control through negotiations between the existing promoters and prospective invester in a friendly manner. Thus it is also called Negotiated Takeover. This kind of takeover is resorted to further some common objectives of both the parties. Generally, friendly takeover takes place as per the provisions of Section 395 of the Companies Act, 1956.

b)      Bail Out Takeover: Takeover of a financially sick company by a financially rich company as per the provisions of Sick Industrial Companies (Special Provisions) Act, 1985 to bail out the former from losses.

c)      Hostile takeover: Hostile takeover is a takeover where one company unilaterally pursues the acquisition of shares of another company without being into the knowledge of that other company. The most dominant purpose which has forced most of the companies to resort to this kind of takeover is increase in market share. The hostile takeover takes place as per the provisions of SEBI (Substantial Acquisition of Shares and Takeover) Regulations, 1997.

Joint Venture
A joint venture (often abbreviated JV) is an entity formed between two or more parties to undertake economic activity together. The parties agree to create a new entity by both contributing equity, and they then share in the revenues, expenses, and control of the enterprise. The venture can be for one specific project only, or a continuing business relationship such as the Sony Ericsson joint venture. This is in contrast to a strategic alliance, which involves no equity stake by the participants, and is a much less rigid arrangement.

Strategic alliances
 An arrangement between two companies who have decided to share resources in a specific project. A strategic alliance is less involved than a joint venture where two companies typically pool resources in creating a separate entity.


Disinvestment can be defined as the action of an organization (or government) selling or liquidating an asset or subsidiary. It is also referred to as divestment or divestiture. It refers to the transfer of the assets/shares/control from the government to the private sector. In general terms Disinvestment(Dis-investment) is simply selling the equity(share) invested by the government in Public Sector Enterprises(PSU).PSUs are enterprises which are either owned completely by the government or whose shares are maximum owned by the government(51% or above).Examples include BHEL,ONGC etc.

Buy Back of Shares
 The buying back of outstanding shares (repurchase) by a company in order to reduce the number of shares on the market. Companies will buyback shares either to increase the value of shares still available (reducing supply), or to eliminate any threats by shareholders who may be looking for a controlling stake. A buyback is a method for company to invest in itself since they can't own themselves. Thus, buybacks reduce the number of shares outstanding on the market which increases the proportion of shares the company owns.

Procedure for Amalgamation as per Indian companies Act : Secreterial Practice

Board Meeting for discussion & appointment
  1. Discussion of scheme of amalgamation by Board resolution appoint CA firm for valuation to indicate exchange rate, appoint solicitors for drafting scheme of amalgamation and legal implications,appoint chartered Engineers for revaluation of assets.
  2. Valuation of all the merging companies (by CA firm) for purpose of fixing exchange ratio
Board meeting approval of scheme
  1. Notice to S/E that Board meeting is going to be held
  2. Board meeting to approve scheme
  3. Intimation of board decision to S/E
Application to court for directions & Court app chairman convene & report
  1. Application to court
  2. on the date given by court, Notice convening the meeting of SH,explanatory statement, notice convening the meeting of creditors ,by chairman appointed by court and news paper ad of the meetings
  3. Copy of EGM notice to S/E
  4. Chairman give to court
Attendance slip
Affidavit of chairman
Report of chairman
Petetion to court
  1. Public notice of petition for any opposition and rounds
   Sanction of the scheme
  1. Report by ROC on behalf of RD(who is authorized by CG) regarding observations on scheme,merger petition to court
  2.  Report of official liquidator that he has appointed a CA to review books of a/cs of company and on the basis of CA report he report that the affairs of company are not conducted in a manner prejudicial to interests of public and the transferor company may be dissolved without process of winding up
  3. Hight Court order approving the scheme by transferee co
  4. High Court order approving the scheme by transferor co.  if it is in different state
Post sanction
  1. Form 21 filed with ROC
  2. Notice to SE that Board meeting for fixing record date is convened
  3. Board Resolution noting the amalgamation and fixing record date (date fixed should be 42 days from date of intimation to SE
  4. Intimation of record to SE
  5. Notice of record date in news paper
  6. Copy of Court order to SE
  7. Intimation of record date to depository requesting to freeze the ISIN of co from next day of  record date

Valuation report by CA in amalgmation