This article is written by Rishabh Dasgupta, pursuing Diploma in M&A, Institutional Finance and Investment Laws (PE and VC transactions) from Lawsikho.

Introduction

Mergers and acquisitions (“M&A”), for the purpose of simple understanding, is the inorganic corporate growth and expansion of a company which either involves taking over a target company or a specific business of the target company (“acquisition”) or the consolidation of the companies (“merger”).

Acquiring a company or its business undertaking can be done by a company in five (5) ways namely; (a) asset sale, (b) slump sale, (c) share sale, (d) amalgamation and (e) demerger. The mode of acquisition sought by a company can have wide-ranging implications for both the acquirer and the seller which primarily includes but is not limited to taxation, stamp duty, successors liability, employee transfer, a bundle of other commercial considerations and the time and energy invested by the parties in structuring the transaction and getting the deal done. Thus, the transaction structure if not chosen correctly and wisely could simply sabotage and break the deal especially, in a country like India.

The article would aim to simply explain what a slump-sale is and proceed to explain how the concept of a slump sale evolved over the decades in a tax perspective due to several issues faced pertaining to the tax-computation mechanism of a slump sale and the confusion surrounding certain methods of slump transfers and whether they can qualify as a slump sale. 

Company acquisition or business acquisition?

What the acquirer wants to acquire and why the acquirer wants to acquire are two fundamental questions a lawyer should ask before charting out the legal framework of an acquisition. A share-sale acquisition will be preferred if it is the company an acquirer wants to acquire; if the objective is to acquire the business – an acquisition via an asset sale or slump sale may be preferred.

The terms – ‘company’ and ‘business’, usually go hand-in-hand during a conversation. However, to understand acquisitions and advise your client of a legally correct deal structure that is best suited for them, it is of utmost importance that the concept of a Company and a Business is understood as per the laws regulating them in India.

Layman understanding of a business

Assume, you have a ‘business’ which is into the retail of electronic home appliances and smartphones and the ‘company’ which houses these ‘business’ is called ‘Gadget-X’. Simply put, Gadget-X comprises your retail store, your employees and all such other assets and liabilities which all put together to form your ‘company’ which houses your ‘retail business’.

Legal understanding of a business

In legal parlance, a business is called an ‘undertaking’ of a company. The term ‘undertaking’ has been defined in the Income Tax Act, 1961 for the purpose of determining and computing the capital gains arising out of a business transfer and under the Companies Act, 2013 for outlining the decision-making process of a company pertaining to the business transfer which acts as the corporate authorization allowing the transfer of business.  

Section 2(19AA): Income Tax Act, 1961

The term “undertaking” includes (a) any part of an undertaking, or (b) a unit or division of an undertaking or (c) a business activity taken as a whole, but does not include individual assets or liabilities or any combination thereof not constituting a business activity.

Section 180: Companies Act, 2013

The term ‘undertaking’ shall mean an undertaking in which the investment of the company exceeds 20% of its net worth as per the audited balance sheet of the preceding financial year or an undertaking that generates 20% of the total income of the company during the previous financial year.

Concept building example

Assume you are the legal counsel appointed by a company ‘Gen-Z’, which wants to acquire Gadget-X. Now, in a scenario where a company houses multiple undertakings (businesses) one needs to understand the objective of the acquisition basis which Gen-Z will have 2 options which will be between acquiring:

1. The entire company which houses both businesses into one electronic home appliance and the other into smartphones; or
2. A specific business of the company wherein the acquisition is not of Gadget-X, as a whole, but instead, just the acquisition of either the retail business engaged in electronic home appliances or the retail business engaged in smartphones.

Scenario I

Gen-Z wants to acquire Gadget-X since Gadget-X has created a name for itself and has a significant goodwill and customer base in the market.

Solution

Gen-Z should acquire Gadget-X through share-sale acquisition by way of which Gen-Z absorbs all assets and liabilities of Gadget-X as shares of a company reflects the underlying value of the entire company.

Scenario II

Gen-Z wants to only acquire the division of Gadget-X which is into the retail business of smartphones since it wants to tap into the retail business of smartphones and acquiring the smartphones retail business of Gadget-X would save Gen-Z the time and energy of starting the retail business from base one and establish it from the ground up.

Solution

In this scenario, Gen-Z should not opt for a share acquisition since this would lead to the buying of the entire Company of Gadget-X including all its assets and liabilities.  Instead, Gen-Z should proceed with a slump sale transaction or a court-approved demerger which would cater to the objective of selectively owning and controlling the smartphone retail division of Gadget-X.

What is a slump sale?

Basic understanding

1. A slump sale, also referred to as a business transfer, is the transfer of a business undertaking as a whole, on a ‘going concern’ basis, wherein the acquirer wants to acquire the whole setup of a business undertaking along with all assets and liabilities of the target company but, without acquiring the target company which houses the business.
2. In other words, the existing business entity will continue to run its operations without much disruption but under the control and management of the acquirer. Drawing reference to the example given above, the smartphone retail business of Gadget-X will now be owned, controlled and managed by Gen-Z leaving Gadget-X with only its retail business in electronic home appliances.

Legal understanding

1. Slump sale is purely a tax concept introduced in the year 2000 by insertion of Section 50B and Section 2(42C) of the Income Tax Act, 1961 (hereinafter referred to as the “Income Tax Act” or “IT Act” or “Act”).
2. Section 2(42C) of the Act defines slump-sale as follows: “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”. The prerequisites to a business transfer being in the nature of slump sale will be – a) transfer of a business undertaking, b) by way of sale, c) for a lump sum consideration and c) without values being assigned to the individual assets and liabilities.

Commercial understanding

1. The acquirer wants to quickly diversify into a new business or wants to expand its existing business at a new location (an asset sale could be preferred but, target companies do not prefer asset sale owing to its tax disadvantage wherein capital gains are required to be paid individually on each asset); 
2. The seller wants to segregate their core company operations from its non-core operations;
3. A company wants to separate one of its businesses to enable private equity investment into that particular division of business; or 
4. In case of non-corporate entities, such as partnership firms, sole proprietors, Hindu undivided families, trusts, an association of persons and co-operative societies slump sales would be one of the few options available for transfer of the business undertaking since they are not eligible for court-approved demergers.

Why create special provisions for a slump-sale under the Income Tax Act, 1961?

1. Prior to the insertion of Section 50B under the Act which came into force on April 1, 2000, the capital gains tax on a slump-sale was computed as per the mechanism provided under Section 48 read with Section 45 of the Income Tax Act – the parent provisions governing capital gains and its computation.
2. However, a stark rise in litigation was witnessed pertaining to the issue that the computation mechanism of capital gains under Section 48 (“Difference between the ‘Sales Consideration’ and ‘Cost of Acquisition’.”) and that this formula cannot be applied to a slump-sale since the ‘Cost of Acquisition’ of an undertaking cannot be ascertained due to the following reasons:

• An undertaking as a whole also includes its intangible assets whose value are not determinable, and
• Owing to the peculiar feature of a slump-sale, assets and liabilities cannot be valued individually for the purposes of determining the sale price of an undertaking.

1. In such cases, where the cost of acquisition becomes impossible to determine, the Supreme Court held that the computation mechanism for capital gains under Section 48 would fail and therefore, no capital gains could be computed for the purposes of Section 45 of the Income Tax Act, 1961.
2. Thus, to plug these loopholes, Section 50B was inserted to provide the computation machinery of capital gains in case of a slump sale. Section 50B deems the ‘Net Worth’ of the business undertaking as to the ‘Cost of Acquisition’ for the purposes of capital gains computation in a slump sale. Net-worth, for this purpose, would be the – ‘Difference between the ‘Book Value of Assets’ and ‘Book Value of Liabilities’. In the case of depreciable assets, the written down value of such assets would be taken as the book value. 
3. However, certain questions still remained unanswered post the introduction of Section 50B with respect to the valuation of intangible assets like the business goodwill, whether a slump sale can be structured as a slump exchange or any other transfer mechanisms mentioned in Section 2(47) of the Income Tax Act. All these issues will be addressed in the later sections of this article.

How are capital gains calculated under Section 50B?

As mentioned above, a special computation mechanism was put in place for calculating the capital gains arising out of a slump sale. The key factors of computing capital gains arising out of slump sale are:

1. The capital gains are taxed in the year an undertaking is transferred and the capital gains tax levied is upon the difference between the sales consideration and the cost of acquisition wherein the cost of acquisition is deemed the “net worth” of the undertaking for the purpose of Section 50B. 

• ‘Net Worth’ of the undertaking will be the ‘Book Value of Assets’ and ‘Book Value of Liabilities’.
• In the case of depreciable assets, the written down value of such assets would be taken as the book value.
• Such net-worth would need to be certified by a chartered accountant in Form 3CEA as prescribed under Rule 6H of the Income Tax Rules, 1962.
• In case the net worth of the undertaking is negative, the Mumbai ITAT had ruled that the negative net worth needed to be added to the consideration. 

2. If an undertaking is held for more than 36 months, it would be a long-term capital asset and capital gains tax rate of 20% (excluding surcharge/ cess) would apply and if capital assets are held for less than 36 months, it would deem to be short-term capital gains tax capped at a rate of 15–30 % (excluding surcharge/cess), depending on the nature of shares and securities.

What makes your business transfer a slump sale?

As discussed above there are three (3) parameters which if satisfied would bring your business deal under the ambit of Section 2(42C) of the Income Tax Act, 1961.

Transfer of an undertaking

1. As discussed above, an undertaking is primarily a business of a company which even if separated from the company can continue with its function and operations immediately after the business transfer and falls under the definition of an ‘undertaking’ under Section 2(19AA) of the Income Tax Act, 1961.
2. What additionally needs to be kept in mind is that all assets and liabilities of the undertaking are transferred ‘as is’ on a going concern basis to the acquirer. In other words, the acquirer is not at the liberty to cherry-pick the assets of an undertaking that they find desirable and leave the remaining assets or liabilities out of the business acquisition process.
3. Although, certain clarifications have been made by various income tax tribunals concerning the requirements of transferring all assets and liabilities of an undertaking in a slump sale:

• In the case of CIT vs. Max India Ltd., Punjab and Haryana High Court held that it is not necessary that all assets of a business to be transferred in a transaction for it to qualify as a slump sale. However, it is essential that the assets being transferred hold the capability to become an undertaking in itself, and can function without any interruption.
• In the case of Rohan Software Pvt Ltd. vs. ITO, the Income Tax Tribunal, Mumbai held that if the subsequent purchaser was able to carry on his business, as was carried on by the party who sold it to him, even without purchasing all of the assets and liabilities of the undertaking it will be treated as if the undertaking has been sold as a whole.
• In the case of Triune Projects P. Ltd. vs. DCIT, the Income Tax Tribunal, Delhi held that a buyer is well within his rights to exclude defunct assets or property from a business transfer which will cause inconvenience or some kind of trouble for the buyer and still qualify as a slump sale and be eligible for treat of tax under Section 50B of the Income Tax Act, 1961.

Simply put, it isn’t necessary to transfer all assets and liabilities for a business transfer to qualify as a slump sale. However, the assets and liabilities that are being transferred should be able to form an undertaking or part of an undertaking or a unit or division of an undertaking or a business activity taken as a whole by themselves and the business operations of that undertaking should be able to instantly resume after the business transfer is consummated. 

Lump sum consideration

1. The consideration for slump sale has to be a ‘lump-sum’ figure without attaching individual values to the assets and liabilities which are forming part of the business undertaking. In other words, the business needs to be valued as a whole in its entirety and not in parts.
2. However, it is clarified that the values of an asset or liability can be individually ascertained but this should be done only for the purpose of payment of registration fees, stamp duty or other similar taxes or fees and this shall not be regarded as an assignment of values to individual assets or liabilities for the purpose of determining the lumpsum consideration price of the business undertaking.

Transfer by way of sale: Slump exchange=slump sale

1. The “sale” parameter has been the most contentious and litigated parameter of a slump sale. Although, it now stands amended by the Finance Act, 2021 and is replaced with the words “transfer by any means”, which will be discussed under the next section of this article. But, keeping into consideration the decades of litigation and interpretations of courts and tribunals which revolved around this one word – ‘sale’, it is only fair to discuss it under this article.
2. The decades of litigation and interpretation surrounding slump-sale is owing to a lot of businesses structuring their business transfer as an exchange wherein the consideration paid in lieu of the business transfer is not monetary consideration but payment by the buyer in the form of non-monetary considerations (issue of shares/debentures etc.) (“slump exchange”). This mechanism was adopted by many companies to escape the ambit of Section 50B and thereby, avoid the payment of capital gains tax. This was backed up with the contention that an ‘exchange’ cannot be deemed a ‘sale’ as they are different modes of transfer in law and are addressed separately under Section 2(47) of the Income Tax Act.
3. Thus, a lot of ambiguity surrounded slump-sale, as a matter of law, specific to the issue of whether the consideration amount in a business transfer can be paid in kind and yet, fall under the definition of a slump-sale under Section2(42C) of the Income Tax Act. 

How have the High Courts and Tax Tribunals approached the said issue?

Areva T&D India Ltd. v. CIT

• The Madras High Court held that monetary consideration is necessary for a business transfer to be qualified as a ‘sale’ and that in the absence of ‘any monetary consideration’, a transfer should not be considered a ‘slump sale’.
• It was acknowledged that the term ‘sale’ has not been defined under the Income Tax Act. The Madras High Court considered the definition of ‘sale’ under Section 54 of the Transfer of Property Act, 1882 (“TOPA”) for the purposes of interpreting Section 50B which defined ‘sale’ as a transfer of ownership in exchange for a price paid or promised or part paid and part promised.
• Since the term ‘price’ was not defined under the ITA or TOPA, interpretation of it was done through the definition of ‘price’ under the Sale of Goods Act, 1930 (“SOGA”) which defined it as ‘money consideration’ for the sale of goods.
• On the basis of the definition of ‘sale’ under the TOPA and ‘price’ under the SOGA, the Madras High Court opined that in order for a business transfer to qualify as a ‘slump sale’, the sale needs to be by way of transfer of ownership in exchange of a price paid or promised or part paid and part promised and the price should be a money consideration. It held that if there is no monetary consideration involved, then the Transaction could not be brought within the ambit of a ‘slump sale’ under the Income Tax Act.

Bennett Coleman & Co. Ltd vs. ACIT

• The Mumbai ITAT held that transfer of a business undertaking in exchange of equity shares and debentures will not attract capital gains tax and that provisions of Section 50B will not be applicable in case of slump exchange and the same is not a slump sale.
• It was also stated that since the business undertaking was transferred by the assessee on a going concern basis and no cost of acquisition can be attributed to individual assets in that undertaking considering the peculiar nature of a slump sale wherein individual values cannot be attached to the assets and liabilities of an undertaking; therefore, even the charging provisions of capital gains under Section 45 would fail.

CIT v. Bharat Bijlee Limited

• The Bombay High Court held that the transfer of an undertaking on a going concern basis in exchange for the issuance of bonds or preference shares will be deemed an exchange and not a sale. 
• Merely because there was quantification with respect to value being attached to the bonds/preference shares, it does not mean that monetary consideration was determined with respect to the cost of acquisition. In other words, this is also not a case where the consideration was determined and decided by parties in terms of money but the disbursements were made in terms of allotment or issue of bonds/preference shares. 
• Accordingly, the Bombay High Court held that Section 50B of the ITA relating to computation of capital gains in case of a slump sale was not applicable to such a transfer. The case is presently pending before the Supreme Court and is yet to be settled.

SREI Infrastructure Finance Ltd vs. ITSC

• The Delhi High Court held that the intention of the legislature to introduce Section 50B was to tax slump sales and not to further carve deeper classifications within it and leave certain slump transfers out of the tax net.
• That word ‘sale’ in ‘slump sale’ is not intended to narrow down the concept of a ‘transfer’ as defined and understood in Section 2(47) of the Act. All transfers in nature of ‘sales’ i.e. ‘slum sales’ are covered by the definition clause 2 (42C) of the Act and would include sale, exchange or relinquishment, extinguishment of any right in an asset, compulsory acquisition under the law etc.
• However, it must be noted, that in this specific case the consideration for the transfer of business undertaking was both in the form of monetary consideration (cash) and non-monetary consideration (shares) and thus there was the presence of monetary consideration in parts if not in whole.

Hence, to sum it all judgements and interpretation, the general view was that, even if not in whole, the presence of at least some monetary consideration is mandatory for business transfer to constitute as a sale. In the absence of any monetary consideration at all, a slump transfer cannot be deemed to be a slump sale for the purpose of Section 50B.

Plugging loopholes within Section 50B: Recent amendments by Finance Act, 2021

As discussed above, slump-sale has been a highly litigated matter across numerous states in India. However, the recent amendments made to the Income Tax Act and Income Tax Rules by the Finance Act, 2021 gazetted on March 28, 2021, has put to rest decades of arguments between businesses and income tax assessing officers as to whether a slump exchange should fall within the ambit of Section 50B or not.

Following are the modifications introduced to slump sale

• Transfer by ‘any means’ and not just sale

The new definition of slump sale states as follows: “transfer of one or more undertakings by any means for a lump-sum consideration without values being assigned to the individual assets and liabilities”. This new definition now allows the transfer of a business undertaking not only ‘by way of sale’ but also ‘by way of an exchange’ or any other transfer structure defined in Section 2(47) of the Act to be included within its scope.

• How to value goodwill while computing the ‘net worth’ of the undertaking? 

While computing the ‘net worth’ of an undertaking which is then deemed ‘cost of acquisition’ under Section 50B, the insertion of Explanation 2(aa) of Section 50B clarifies that the value of any goodwill of business or profession (other than goodwill acquired by purchase from a previous owner) would need to be taken as NIL.

• The full value of sales consideration will now be calculated as per the fair market value computation which now provides assessment not only for monetary considerations but also non-monetary considerations 

Prior to Finance Act 2021, the full value of consideration was the lump sum value agreed which was considered while computing capital gains for slump sales.  Post Finance Act 2021, a new clause in Subsection 2 of Section 50B has been inserted, where “Fair market value of the capital assets as on the date of transfer, calculated in the prescribed manner, shall be deemed to be the full value of the consideration received or accruing as a result of the transfer of such capital asset.”

• How will this fair market value be calculated?

The Central Board of Direct Taxes notified Rule 11UAE under the Income Tax Rules 1962, vide its Notification dated 24th May, 2021, for the computation of fair market value of capital assets in case of a slump sale.

As per the notified Rules, two methods of calculating the fair market value (FMV1 and FMV2) have been provided for determining the full value of consideration in case of an exchange of assets in a slump sale is either: 

1. The fair market value of the assets transferred (FMV1); or 
2. The fair market value of the assets received in the slump sale (FMV2) 

Whichever is higher is to be considered. Both the FMVs of the assets transferred and received are to be determined as per Rule 11UAE.

Tabular Representation of Computation of FMV 1

Tabular Representation of Computation of FMV 2

Conclusion

A slump sale, also known as a business transfer, is the transfer of a business undertaking as a whole, on a ‘going concern’ basis, wherein the buyer acquires the whole business setup of a company but not the company. Before April 1, 2000, slump sale was being taxed under Section 45 read with Section 48 of the Income Tax Act, 1961. However, the computation machinery failed to calculate the capital gains arising out of slump sales owing to the peculiar feature of slump-sale that the assets and liabilities cannot be valued individually for the purposes of determining the sale price of an undertaking.

Post-April 1, 2000, Section 50B of the Income Tax Act, 1961 became the governing provision for slump sale. Section 50B also failed in certain ways owing to its inability to clarify whether slump exchange can be a slump sale and if yes, what will be the computation mechanism for non-monetary considerations. 

The majority of the courts and tax tribunals were of the opinion that in the absence of any monetary consideration, a slump transfer cannot be deemed to be a slump sale for the purpose of Section 50B. The loopholes in Section 50B were finally plugged the recent amendments made to the Income Tax Act and Income Tax Rules by the Finance Act, 2021 gazetted on March 28, 2021 which clarified that a business transfer can be through any means of transfer as provided in Section 2(47) of the Income Tax Act and just through the sale. It also made provisions to enable the taxation of slump exchange by introducing the computation mechanism under Rule 11UAE which now captures not only monetary considerations but non-monetary considerations as well.

The Rule 11UAE under the Income Tax Rules, 1962 prescribe the valuation method of slump exchange as per the Net Asset Value (NAV) method and the seller will have to pay tax on the fair market value as computed as per Rule 11UAE even if the actual consideration received is less than the fair market value of capital assets.

Students of Lawsikho courses regularly produce writing assignments and work on practical exercises as a part of their coursework and develop themselves in real-life practical skills.

LawSikho has created a telegram group for exchanging legal knowledge, referrals, and various opportunities. You can click on this link and join: