INDIAN INCOME TAX ACT, 1961

The Income Tax Act of 1961 lays down tax provisions, needed to be complied during M&A.
This Act makes sure that tax liabilities are well paid off during the merger and acquisition.
Although the term merger is no where being defined in the Income Tax Act, but the Act
defines the term amalgamation in the section 2(I B) 1. With regard to cross border merger
and acquisition, the Income tax Act defines the term company and companies under the
section 2(17)2, which also incorporate the term foreign companies. Thus, it can be stated that
it has the provisions of the cross border merger and acquisition. 3

In course of merger and acquisition process, following issues with respect to Income Tax Act
arise:

Capital gain
Carry forward and set-off of accumulated losses
Written down value

1 Income Tax Act 1961 s 2 (I(B)) amalgamation", in relation to companies, means the merger of one
or more companies with another company or the merger of two or more companies to form one
company (the company or companies which so merge being referred to as the amalgamating company
or companies and the company with which they merge or which is formed as a result of the merger, as
the amalgamated company)

2 Income Tax Act 1961 s 2 (17) "company" means (i) any Indian company, or(ii) any body corporate
incorporated by or under the laws of a country outside India, or
(iii) any institution, association or body which is or was assessable or was assessed as a company for any
assessment year under the Indian Income-tax Act, 1922 (11 of 1922), or which is or was assessable or was
assessed under this Act as a company for any assessment year commencing on or before the 1st day of April,
1970, or
(iv) any institution, association or body, whether incorporated or not and whether Indian or non-Indian, which is
declared by general or special order of the Board to be a company :
Provided that such institution, association or body shall be deemed to be a company only for such assessment
year or assessment years (whether commencing before the 1st day of April, 1971, or on or after that date) as
may be specified in the declaration ;]

3 Ca shefali goradi and Kalpesh desai, 'Cross Border Mergers' [2010] SS VII (21) Income Tax
Review 29-27< http://www.bmradvisors.com/upload/documents/Article_Cross%20Border
%20Mergers_Shefali%20Goradia_25%20Oct1288343470.pdf> accessed on May 2015.
When it comes to capital gain, sections 454 , 465, 476of the Income Tax Act are to be looked
upon,

The capital gain is exempted under two circumstances, which are as follows:- 1) This Act,
states for the exemption of the capital gain on assets, when the capital assets of the
amalgamating company is transferred to the amalgamated company under the given scheme
of the amalgamation. 2) The second provision is that the shareholders of the amalgamated

4 Income Tax Act 1961 s 45, Any profits or gains arising from the transfer of a capital asset effected
in the previous year shall, save as otherwise provided in sections[***][54, 54B, [***][ [54D, [54E,
[54EA, 54EB,] 54F [, 54G and 54H]]]]], be chargeable to income-tax under the head Capital gains,
and shall be deemed to be the income of the previous year in which the transfer took place. [(1A)
Notwithstanding anything contained in sub-section (1), where any person receives at any time during
any previous year any money or other assets under an insurance from an insurer on account of damage
to, or destruction of, any capital asset, as a result of (i) flood, typhoon, hurricane, cyclone,
earthquake or other convulsion of nature; or (ii) riot or civil disturbance; or (iii) accidental fire or
explosion; or (iv) action by an enemy or action taken in combating an enemy (whether with or without
a declaration of war), then, any profits or gains arising from receipt of such money or other assets
shall be chargeable to income-tax under the head Capital gains and shall be deemed to be the
income of such person of the previous year in which such money or other asset was received and for
the purposes of section 48, value of any money or the fair market value of other assets on the date of
such receipt shall be deemed to be the full value of the consideration received or accruing as a result
of the transfer of such capital asset.

5 Notwithstanding anything contained in section 45, where the assets of a company are distributed to
its shareholders on its liquidation99, such distribution shall not be regarded as a transfer by the
company for the purposes of section 45. (2) Where a shareholder on the liquidation of a company
receives any money or other assets99 from the company, he shall be chargeable to income-tax under
the head Capital gains, in respect of the money so received or the market value of the other assets
on the date of distribution, as reduced by the amount assessed as dividend within the meaning of sub-
clause (c) of clause (22) of section 2 and the sum so arrived at shall be deemed to be the full value of
the consideration for the purposes of section 48

6 Income Tax Act 1961 s 47, Nothing contained in section 45 shall apply to the following transfers :(i) any
distribution of capital assets on the total or partial partition of a Hindu undivided family; (ii) [***] (iii) any
transfer of a capital asset under a gift or will or an irrevocable trust :[Provided that this clause shall not apply to
transfer under a gift or an irrevocable trust of a capital asset being shares, debentures or warrants allotted by a
company directly or indirectly to its employees under [any Employees Stock Option Plan or Scheme of the
company offered to such employees in accordance with the guidelines issued by the Central Government in this
behalf];] (iv) any transfer of a capital asset by a company to its subsidiary company, if (a) the parent company
or its nominees hold the whole of the share capital of the subsidiary company, and (b) the subsidiary company is
an Indian company; [(v) any transfer of a capital asset by a subsidiary company to the holding company, if
(a) the whole of the share capital of the subsidiary company is held by the holding company, and (b) the holding
company is an Indian company :] [Provided that nothing contained in clause (iv) or clause (v) shall apply to the
transfer of a capital asset made after the 29th day of February, 1988, as stock-in-trade;] [(vi) any transfer, in a
scheme of amalgamation, of a capital asset by the amalgamating company to the amalgamated company if the
amalgamated company is an Indian company;] [(via) any transfer, in a scheme of amalgamation, of a capital
asset being a share or shares held in an Indian company, by the amalgamating foreign company to the
company shall be exempted from the capital gain made to them by the issue of shares by the
new company, if in case only shares are issued and no other gains are made. Section 48 7 of
the Income Tax Act of 1961 also deals with the mode of computation of capital gain in case
of transfer of assets. It also lays down the mean to compute capital gain in case of transfer
from the Indian company to a foreign entity.

amalgamated foreign company, if (a) at least twenty-five per cent of the shareholders of the amalga-mating
foreign company continue to remain shareholders of the amalgamated foreign company, and (b) such transfer
does not attract tax on capital gains in the country, in which the amalgamating company is incorporated;]

7 The income chargeable under the head Capital gains shall be computed, by deducting from the
full value of the consideration received or accruing as a result of the transfer of the capital asset the
following amounts, namely : (i) expenditure incurred wholly and exclusively in connection with
such transfer; (ii) the cost of acquisition of the asset and the cost of any improvement thereto:
Provided that in the case of an assessee, who is a non-resident, capital gains arising from the transfer
of a capital asset being shares in, or debentures of, an Indian company shall be computed by
converting the cost of acquisition, expenditure incurred wholly and exclusively in connection with
such transfer and the full value of the consideration received or accruing as a result of the transfer of
the capital asset into the same foreign currency as was initially utilised in the purchase of the shares or
debentures, and the capital gains so computed in such foreign currency shall be reconverted into
Indian currency, so, however, that the aforesaid manner of computation of capital gains shall be
applicable in respect of capital gains accruing or arising from every reinvestment thereafter in, and
sale of, shares in, or debentures of, an Indian company.