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Demerger
The expression ‘Demerger’ is not expressly defined in the Companies Act, 1956. However, it is
covered under the expression arrangement, as defined in clause (b) of Section 390 of Companies
Act.
Division of a company takes place when
1. Part of its undertaking is transferred to a newly formed company or an existing company and
the remainder of the first company’s division/undertaking continues to be vested in it; and
2. Shares are allotted to certain of the first company’s shareholders.
A demerger is a form of restructure in which owners of interests in the head entity (for example,
shareholders or unit-holders) gain direct ownership in an entity that they formerly owned
indirectly (the ‘demerged entity’). Underlying ownership of the companies and/or trusts that
formed part of the group does not change. The company or trust that ceases to own the entity is
known as the ‘demerging entity’.
The entity that emerge have its own board of directors and, if listed on a stock exchange, have
separate listings. The purpose of demerger is to revive a company's flagging commercial fortunes,
or simply to lift its share price.
Mode Of Demerger:
Under the scheme of arrangement with approval of the court U/s 391 of the Companies Act.
2. Demerger is most likely to attract the other provisions of the companies Act, envisaging
reduction of Share capital comprising Sec. 100 to 105
3. The company is required to pass a special resolution which is subject to the confirmation by the
court by making an application.
4. The notice to the shareholders convening the meeting for the approval will usually consist of
the following detail:
(a) Full Details of the scheme
(b) Effect of the scheme on shareholders, creditors employee
(c) Details of the valuation Report
5. An application has to be made for approval of the High Court for the scheme of arrangement
6. It is necessary that the Articles of Association should have the provision of reduction of it’s
Share Capital in any way, and its MOA should provide for demerger, Division or split of the
Company in any way. Demerger thus, resulting into reduction of Companies share capital would
also require the Co. to amend its MOA.
Tax Aspect:
Definition of demerger U/s Section 2(19AA) of the Income Tax Act:
The definition of 'demerger' as given under Section 2(19AA) of the Income Tax Act is unduly
restrictive, and subject to various conditions. Some of the conditions mentioned are:
1. The first condition is that all the property of the undertaking should become the property of the
resulting company.
2. Conditions of Sec 391 to Sec.394 should be satisfied.
3. Similarly, all the liabilities relating to the undertaking immediately before the demerger should
become the liabilities of the resulting company.
4. Explanation 2 provides that not only identified liabilities should be transferred to the resulting
company, but also general borrowings in the ratio of the value of the assets transferred to the total
value of the assets of the demerged company.
5. Assets and liabilities have to be transferred at book value.
Under a sale as a going concern, the rights, liabilities and obligations of all the affected parties
(eg. debtors, creditors, employees etc.) are protected. It provides for the continuation of the
running of the undertaking without any interruption.
Precautions to be taken by buyer: in a going concern principle the buyer inherits both benefits and
liabilities from the ongoing contracts that may arise at a later date even with respect to past
transactions. There should be clear provisions in the sale agreements fixing the responsibilities of
the parties in this behalf
Transferee Company: The objects clause of the transferee company shall also contain such a
provision for carrying on the business that it seeks to acquire. However it is not necessary that the
objects of the two companies should be in unison.
Tax Implications
Capital Gains in the hands of transferor:
The provisions of Section 50B of the Income Tax Act, 1961 provide for the computation of
Capital Gains in case of slump sale.
If the undertaking or division has been held by the transferee for more than 36 months: Any
profits or gains arising from the slump sale effected in the previous year shall be chargeable as
long term capital gains and shall be deemed to be the income of the previous year in which the
transfer took place.
If the undertaking has been owned and held by the transferor for not more than a period of 36
months, the capital gain arising out of such a slump sale shall be treated as short term capital
gains.
Accumulated loss/Depreciation:
In case of slump sale the unabsorbed depreciation or losses can be carried forward only in the
hands of the transferor and unlike in the hands of the transferee in case of demerger.