A demerger is a type of corporate reorganisation in which an organisation splits
off a portion of its operations into a separate corporation. For a variety of
reasons, an organisation may decide to demerge. The most typical goal is to
increase shareholder value by separating out distinct activities that may
perform well if they are separated from the core firm. Separation, where
partners who previously worked together in a joint venture or as part of an
acquisition decide to pursue their own paths, is another reason for a demerger.
A demerger is a process approved by the National Companies Law Tribunal (NCLT)
in which all of the assets and liabilities of the specified business
undertaking, as well as the employees, are transferred to the transferee entity
on a continuing concern basis. In exchange for a demerger, the transferee entity
gives its shares to the transferor entity's shareholders.
Do you, however,
understand the tax ramifications of a demerger?
Section 2(19AA) of the Income
Tax Act of 1961 defines a demerger. A demerger is usually tax-free, although it
can have tax consequences. The author's goal in this essay is to discuss the
taxes provisions for a demerger.
Demerger and Income Tax Act, 1961
Provisions related to Demerger under Income Tax Act:
As per S.2(19AA) of the Income Tax Act, 1961, defines the term demerger
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
- 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;
- 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;
- 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;
- 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;
- 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
- The transfer of the undertaking is on a going concern basis;
- 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.
When will a demerger be tax neutral?A demerger will be tax neutral in the following circumstances:
Various transactions are not deemed transfers for the purpose of capital gains
tax under Section 47 of the Income Tax Act of 1961. As per Section 47(vi b), if
there is any transfer of a capital asset from the demerged organisation to the
succeeding organisation in a demerger, and the resulting organisation is an
Indian organisation, the transaction will not be regarded a transfer for the
purpose of capital gains tax.
According to Section 47(vi) (d), if the resulting organisation issues or
transfers shares to the shareholders of the demerged organisation in a demerger
scheme, and the transfer is made in consideration of the undertaking's demerger,
the transaction will not be considered a transfer for the purpose of capital
There are no implications of a presumed dividend on the issue of shares by the
new organisation, according to clause (v) of Section 2(22) of the Income Tax
Act, 1961. When shares are distributed to the shareholders of the demerged
organisation as a result of a demerger (whether or not there is a capital
decrease in the presumed organisation), they are not included in the definition
of the dividend.
Section 72A (4) of the Income Tax Act of 1961 gives a demerger the benefit of
set-off and carry-forward of unabsorbed loss and depreciation. If a demerger
opts for a company reorganisation, this provision will benefit them. It should
be underlined that such a demerger should have been pursued solely for
legitimate economic reasons.
When will a demerger be taxed?
The resulting organisation is taxed as a business successor under Section 41(1)
of the Income Tax Act of 1961. When a deduction or allowance is provided in any
assessment year in respect of a loss, trading, or spending liability sustained
by the assessee (first-mentioned individual) in a prior year, Section 41(1)(a)
applies. The assets gained by such individual or the value of benefit arising to
him shall be deemed to be gains and profits of the profession or business and
chargeable to income tax as the income of that previous year, whether the
profession or business in resp; or
(b) the successor in business (resulting organization) has gained any amount
whether in cash or in any other way in respect of which loss or expenditure was
suffered by the assessee (first mentioned individual) or some profit in respect
to business liability referred to in clause (a) by way of revocation or
termination thereof, the amount gained by the resulting organization or the
value of profit arising to the resulting organisation shall be deemed to be
gains and profits of the profession or business, and chargeable accordingly to
income tax as the income of that previous year.
Whether a demerger scheme could be sanctioned under Income Tax Act provisions
and corporate laws of India if there is no consideration?
The Gujarat High Court has answered the above-mentioned question in the case of
Vodafone Essar Gujarat Limited (Gujarat HC). The court ruled against the
demerger plan. Furthermore, the scheme was deemed to be a conduit/device with
the sole purpose of evading and avoiding taxes such as stamp duty, income tax,
VAT, and registration fees. The fact that different accounting treatments are
offered to transferor organisations with a positive net worth as compared to
those with a negative net worth with a motive to avoid maximum tax was
recognised as evidence of the motive being tax avoidance.
Could it be true that a tax-neutral demerger of investments would be
considered under Section 2(19AA) of the Income Tax Act of 1961?
If the transfer does not comply with Section 2(19AA) of the Said law, the
incentive for demerger under Section 47 (vii a) is not available.
It was held in Income Tax Officer v. M/s Datex Ohmeda (India) Pvt Ltd (ITAT
that the transfer of the assessee-trading organisation's and
business division was not in accordance with the provisions of Section 2(19AA)
to treat the same as a demerger for the purpose of the Income Tax Act, and that
the assessee-organisation was not eligible for the Section 47 (vii a) incentive.
All obligations connected to the undertaking, being transferred by the
corporation, are subject to section 2(19AA) (ii) of the Income Tax Act, 1961.
All liabilities relating to the undertaking transferred by the demerged
organisation immediately before to the demerger should become liabilities of the
resulting organisation, according to the requirement embodied in section 2(19AA)
(ii) of the Income Tax Act,1961. However, in this case, the transfer of the T&D
division did not comply with Section 2(19AA), and so the incentive under Section
47 (vii a) of the Income Tax Act,1961, was not available.
Provisions for Cross-border Demerger:
The Companies Act of 2013 does not clearly enable or prohibit cross-border
demergers. Cross-border demergers are only possible in India if Section
232(I)(b) of the Companies Act, 2013 is interpreted together with Section 234 of
the Companies Act, 2013. The Legislature, via explanation, or any appellate
tribunal, through order or decision, can put an end to the argument. Currently,
the Income Tax Act of 1961 stipulates that the emerging entity from a demerger
must be an Indian entity. To date, there is no provision for a cross-border
To summaries, a demerger is a type of corporate reorganisation in which a
company divides a portion of its operations into a separate firm. A demerger is
usually tax-free, although it can have tax consequences. There will be no
capital gains if capital assets are transferred and the successor organisation
is an Indian organisation, according to Section 47(vi b). Similarly, there will
be no capital gains when the successor organisation issues or transfers shares
to shareholders of the demerged organisation, according to Section 47(vi) (d).
The resulting organisation is taxed as a business successor under Section 41(1)
of the Income Tax Act of 1961. The Companies Act of 2013 does not clearly enable
or prohibit cross-border demergers. Cross-border demergers are only possible in
India if Section 232(I)(b) of the Companies Act, 2013, is read in conjunction
with Section 234 of the Companies Act, 2013.
The Legislature, through explanation, or any Appellate Tribunal, through order
or judgement, can put an end to the argument. Currently, the Income Tax Act of
1961 stipulates that the emerging entity from a demerger must be an Indian
entity. There isn't anything in the law about the cross-border demerger.