Budget 2021-22 + FINANCE Bill, 2021

Facilitating strategic disinvestment of public sector company

Section 2 of the Act provides the definitions for the purposes of the Act. Clause (19AA) of the said section defines that “demerger", in 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 on satisfaction of conditions prescribed in the said clause.

Section 72A of the Act provides provisions relating to carry forward and set off of accumulated loss and unabsorbed depreciation allowance in amalgamation or demerger, etc. Sub-section (1) of section 72A of the Act provides that the accumulated loss and unabsorbed depreciation of the amalgamating company or companies shall be deemed to be the accumulated losses and unabsorbed depreciation of the amalgamated company or companies in specified cases and subject to the conditions specified in the said section.

It is proposed to relax the provisions of these two sections for public sector companies in order to facilitate strategic disinvestment by the Government. Accordingly, it is proposed to carry out the following amendments-

(i) It is proposed to amend clause (19AA) of section 2 of the Act to insert Explanation 6 to clarify that the reconstruction or splitting up of a public sector company into separate companies shall be deemed to be a demerger, if

• such reconstruction or splitting up has been made to transfer any asset of the demerged company to the resultant company; and

• the resultant company is a public sector company on the appointed date indicated in the scheme approved by the Government or any other body authorised under the provisions of the Companies Act, 2013 or any other Act governing such public sector companies in this behalf; and

• fulfils such other conditions as may be notified by the Central Government in the Official Gazette.

(ii) It is proposed to amend sub-section (1) of section 72A of the Act,

(a) to substitute clause (c) to provide that the provision of sub- section (1) of section 72A shall also apply in case of amalgamation of one or more public sector company or companies with one or more public sector company or companies.

(b) to insert clause (d) to provide that the provision of sub-section (1) of section 72A shall also apply in case of amalgamation of an erstwhile public sector company with one or more company or companies, if

• the share purchase agreement entered into under strategic disinvestment restricted immediate amalgamation of the said public sector company; and

• the amalgamation is carried out within five year from the end of the previous year in which the restriction on amalgamation in the share purchase agreement ends.

(c) to insert a proviso to sub-section (1) to provide that the accumulated loss and the unabsorbed depreciation of the amalgamating company, in case of an amalgamation referred to in clause (d), which is deemed to be loss or, as the case may be, allowance for unabsorbed depreciation of the amalgamated company shall not be more than the accumulated loss and unabsorbed depreciation of the public sector company as on the date on which the public sector company ceases to be a public sector company as a result of strategic disinvestment;

(d) to insert an Explanation to sub-section (1) to define the followings:-

(A) “Control” shall have the same meaning as assigned to in clause (27) of Section 2 of the Companies Act, 2013;

(B) “Erstwhile public sector company” means a company which was a public sector company in earlier previous years and ceases to be a public sector company by way of strategic disinvestment by the Government.

(C) “Strategic disinvestment” shall mean sale of shareholding by the Central Government or any State Government in a public sector company which results in reduction of its shareholding to below 51%, along with transfer of control to the buyer.

These amendments will take effect from 1st April, 2021 and will accordingly apply to the assessment year 2021-22 and subsequent assessment years.

[Clauses 3 and 22]

 

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Full Text:

Budget 2021-22 + FINANCE Bill, 2021

Strategic disinvestment: clarifying demerger treatment and extending carry forward benefits to enable restructuring before transfer of control. Amendments treat certain reconstructions or splits of a public sector company as demergers where assets transfer and the resultant entity remains a public sector company, and extend carry forward and set off benefits to amalgamations involving public sector and erstwhile public sector companies subject to conditions, limits on deemed losses and allowances, and notified requirements; new explanations define control, erstwhile public sector company, and strategic disinvestment.