Note on Slump Sale

In accordance with Section 2(42C) of the Income-tax Act 1961. A ‘Slump Sale’ means the transfer of one or more than one undertakings as a result of the sale for a lump sum consideration without the values being assigned to the individual assets and liabilities in such sales.

In order to understand the meaning of Slump Sale we have to first understand the definition of ‘Undertaking”

As per the Explanation 1 to section 2(19AA) ‘Undertaking’ has the same meaning as defined under ‘Demerger’ undertaking’ shall include any part of an undertaking or a unit or division of an undertaking or a business activity taken as a whole, but does not include individual assets or liabilities or any combination thereof not constituting a business activity

The determination of the value of an asset or liability for the payment of stamp duty, similar taxes, registration fees etc. shall not be considered as an assignment of values to the individual assets and liabilities as per Explanation 2 to section 2(42C). Hence, if the value is assigned for stamp duty purposes, then the transaction also would still qualify as slump sale under section 2(42C).

For the purpose of reference to this section an ‘undertaking’ means an undertaking in which the investment of the Company exceeds 20% of its net worth or which generates 20% of the total income.

Substantially the whole of the undertaking’ shall mean 20% or more of the value of the undertaking.

Taxability of the gains arising on a slump sale

The Section 50B of the Income-tax Act, 1961 provides the method for computation of capital gains arising on slump sale. If we go through this section some basic points which arise are:
When an undertaking is transferred the Capital gain arising on such transfer is deemed to be long-term capital gains. However, if an undertaking is ‘owned and held’ for not more than 36 months immediately before the date of transfer such gains shall be treated as short-term capital gains

The Taxability arises in the year of transfer of such undertaking.

The Calculation of Capital Gain on is the difference between the sale consideration and the net worth of the undertaking.

“Net worth” means the deemed the cost of acquisition and the cost of improvement for section 48 and section 49 of the Act as per section 50B, indexation benefit shall not be available on the cost of acquisition, i.e., net worth

Since the net worth is indispensable in ascertaining the taxability of gain. Hence, it is advisable to comprehend the calculation of ‘Net worth’ for better clarity.

Calculation of Net worth:

In computing the net worth of the entity, the following points need to be considered:

• While calculating the value of net worth any change in the value of the asset or liability resulting from the revaluation of such assets or liability should not be taken into account.

• In case asset on which depreciation is applicable under the Income Tax Act then the Written Down Value of such assets as per the Act shall be taken.

• In case on any assets on which 100% deduction is allowed u/s 35AD (specified business), the value of such assets shall not be considered.
• In case of any other asset, value as appearing in the books of accounts shall be considered.

After considering the above mentioned points, the cost of acquisition shall be taken as Nil if the resulting net worth is negative for the purpose of computation of capital gains.

Compliances under Companies Act 2013

As per Section 180 of the Companies Act, 2013 which imposes the restrictions on the power of the Board.

The first one is ‘to sell, lease or otherwise dispose of the whole or substantially the whole of the undertaking of the company or where the company owns more than one undertaking, of the whole or substantially the whole of any of such undertakings.’

Henceforth, in case of slump sale, section 180 of Companies Act, 2013 will be attracted and the Concerned Company would be required to pass a special resolution by calling the general meeting of the Company for undertaking the Slump Sale Transaction.