“Stamping Out” Double Taxation in Mergers &Acquisitions (M&As)

Pranav Bafna and CA Priyanshi Chokshi

Context

The Covid-19 pandemic has hemorrhaged balance sheets of business organizations across the board. As money continues to bleed out, limiting the cash outflow is essential to ensure that businesses continue to survive. Alas, a surgical operation on the wounded balance sheet is a must. In this regard, Corporate Restructuring is one of the best tools in the hands of financial doctors to revive a struggling entity.

Undoubtedly, with Corporate Restructuring at the forefront of this battle, M&A’s could be a knight in the shining armor. In this regard, the knight’s armory does have a few chinks, which could stall its progression – Yes, we are referring to “Taxes”.

As with every monetary transaction, the government desires a piece of the pie. M&As are no different. While decision-makers take cognizance of their income tax obligations, the second slice of the pie – “Stamp Duty” – is often overlooked. On some occasions, the government has taken two slices of the Stamp Duty ‘pie’ at the pretext of taking one. This has set alarm bells ringing in a cash crunched economy. This Article attempts to douse this fire by diagnosing the two-time Stamp Duty Charge on certain M&A transactions. Thereafter discussing a solution already proposed by The Associated Chambers of Commerce of India (‘ASSOCHAM’).

The Issue At Hand

By most criteria, stamp duties are a “bad” tax. The levy of stamp duty has become counterproductive and its cascading effect provides powerful incentives for tax avoidance. The duty structure is poorly administered, it highly distorts business decisions and fails to value transactions accurately while assessing the stamp duty liability. This has a negative impact on related taxes as well. Particularly, in connection with capital gains tax payable under the Income Tax Act, 1961. Valuation of a transaction under the stamp duty law is a key metric for assessing the capital gains tax payable on the concerned arrangement. Resultantly, the compliance burden of dealing with state specific stamp duty legislations has made stamp duty a rather cumbersome tax.

This problem reaches a crescendo when Stamp Duty obligations vis-à-vis M&A is considered. §230-232 of The Companies Act, 2013 (‘The Act’) mandates, inter alia, an application for M&As to be filed before the jurisdictional National Company Law Tribunal (‘NCLT’). In case the registered offices of the transferor and transferee companies belong to different jurisdictions, separate applications ought to be filed before the jurisdictional Tribunal. Resultantly, the order passed by the NCLT approving the proposed amalgamation is of key importance from a stamp duty perspective.

Further, it is pertinent to note that Stamp Duty pertaining to amalgamation orders of the NCLT fall solely within the State’s prerogative. The same has been mandated under Schedule VII of the Constitution of India. Accordingly, in the Hindustan Lever Case, the Apex Court upheld the Li Tika case judgment and observed that an order sanctioning a restructuring scheme is an instrument liable to stamp duty under Section 2(g) of the Bombay Stamp Act. Likewise, the Delhi High Court’s judgment in the case of Delhi Towers Ltd. v. G.N.C.T. of Delhi settled the position for states, which do not have a specific stamp duty legislation of their own. The Bombay Stamp Act also clarifies, inter alia, every order in respect of amalgamation, merger, demerger, arrangement or reconstruction of companies would also be liable to stamp duty.

With the aforesaid decisions imposing the onus of discharging stamp duty obligations on an affirmative order of the jurisdictional NCLT, a new issue arose – Will Stamp Duty be charged multiple times if separate orders for the same scheme are anticipated from Tribunals of two or more states?

This issue came up in the case of Chief Controlling Revenue v/s M/s Reliance Industries Limited. The said judgment created serious ramifications for transactions where a Scheme of Amalgamation is executed between two or more companies having registered offices in different states. The judgment dictates that stamp duty would be separately payable for every order of the High Court approving the proposed rearrangement scheme. On a literal interpretation of the provisions of Stamp Act, the order appears to be appropriate. However, on a broader perspective, it results in incongruous consequences and defeats the commercial wisdom behind undertaking such arrangements. In the aftermath of this judgment, every concerned taxpayer becomes liable to disburse its stamp duty obligations multiple times on a singular transaction. Further, it disregards aspects of equity, penalizes those who are trying to grow and creates double taxation consequences for the concerned taxpayer. This increases transaction cost manifold times. To add to this, the highly inconsistent stamp duty charges in each state make its calculation and pre-emption a cumbersome exercise.

Further, companies operating at different capacity levels undertake M&As as they benefit from the operational synergies purported as a result of linking-up with each other to form larger business organizations and improve overall performance. However, increasing financial costs, discourage such efforts towards optimum capacity utilization.

Alas, this is where the trouble starts. The discharge of stamp duty obligations is undisputed, however- In which state, or in how many states, should stamp duty be levied, paid and retained continues to be a burning question. Further, can payment of stamp duty in one state be claimed as rebate in another state, are questions that need further deliberation.

Way Forward

The status quo allows companies to take advantage of different stamp duty rates in each state and claim an arbitrage benefit arising from these differential rates. The ability to regulate its stamp duty rates is a major competition facilitator for every state and a direct/ indirect source of revenue for the respective state’s treasury. Therefore, jurisdictional issues vis-à-vis Stamp Duty on M&A transactions must be timely resolved to enable a consistent regime across the country. In this regard, a solution to the possible problem has been pitched by ASSOCHAM: One Nation One Stamp Duty.

One Nation One Stamp Duty proposes having a unified stamp duty regime across the country as far as M&A transactions are concerned. In the proposed scheme, the transferee will be liable to pay a stamp duty at a consistent rate regardless of the state in which the transaction is being pursued. Further, the transferee will be liable to pay stamp duty on a one-time basis and not on every affirmative order passed by the relevant NCLT, thereby eliminating double taxation on a single transaction.

Since the Constitution of Indian bifurcates the power to levy stamp duty between the union and state, diluting each state’s prerogative for the greater good of the country would be an uphill task. Institutionalizing the aforesaid recommendation would require political will of a magnitude last seen at the time of introduction of the Goods and Services Tax regime. Further, since the levy of stamp duty is prescribed by the Constitution, amending the relevant stamp duty provisions in the constitution and thereafter in the Indian Stamp Act, 1899 appears to be the only way out.

Another alternative to the proposed solution would be to encourage states to grant set off of Stamp Duty paid in other states. However, with state revenues dwindling due to the pandemic, it appears to be very unlikely that most States will agree to this sacrifice. Thus, finding a middle ground to the proposed solution is necessary.

Inspiration for the solution can be taken from the Goods and Services Tax structure wherein the Centre and State share the revenue. However, in the incumbent case, the Union must ensure that the Stamp Duty revenue being generated must be transferred in its entirety to the beneficiary State Government. In case, two or more states are entitled to benefit from the Stamp Duty Charge, the revenue must be split on the basis of certain pre-determined ratios. Using the concerned company’s Asset base/ Net worth could be a reasonable basis of allocating the stamp duty between the beneficiary states. While the Centre and the State decide a mutually acceptable internal structure, creating a uniform and consistent stamp duty regime ensures a level-playing field for all states. Additionally, it aligns fiscal policies with international practices.

From an administrative perspective, it would ensure putting in place an efficient mechanism for collection of stamp duty and reducing ambiguity for the taxpayer as well as the collector. It would also eliminate the present practice of concluding deals in states where the rates of duty are favourable (akin to the Treaty Shopping practice pursued in case of International Taxation). Thus, no matter how the Union and the States decide to share the revenue internally, ensuring a stable and consistent stamp duty regime for the taxpayers must be at the forefront of this discussion. In the long run, this could positively boost the country’s endeavor to become a favourable investment and business destination.

Conclusion

Given the level of stress on the balance sheets, especially in the post-Covid era, restructuring is expected to rise across different sectors. In such a scenario, M&As are instruments of momentous growth. The advent of a new era of unprecedented economic growth, globalization and financial innovation calls for significant changes to the taxation policy. The pursuit of an efficient tax regime – in a federal structured economy – requires balancing the interests of three crucial parties – Union, State and the Taxpayer. Inability to accommodate the needs of any one of them would make this three-legged stool imbalanced. For instance, while the States would like to retain their ability to levy Stamp Duty, it comes at the price of an unfriendly and cumbersome compliance experience for the taxpayers. Not only that, shifting the prerogative to levy Stamp Duty in the hands of the center will be difficult to accept in case of conflicting political ideologies at the Center and the State. Thus, there is an urgent need to revamp the duty structure by building consensus between all the concerned stakeholders.

With the Insolvency and Bankruptcy provisions suspended, external restructuring to ensure survivability will be at the forefront of India Inc.’s crusade against the pandemic. Attention ought to be diverted to such corporate houses, which need finances at their disposal to be able to undertake risks and expansionist policies, in order to become a force to be reckoned with in the near future.

The changing global scenario will fiercely advocate revival and survival of the fittest. Both of these objectives necessitate cost reduction. Thus, if the survivability of Indian companies ought to be ensured – unnecessary obstacles must be removed. In other words, inefficiencies in the Stamp Duty regime ought to be “Stamped Out”.