CBDT vide Notification No.68/2021/F. No.370142/16 /2021-TPL in G.S.R. 338 (E). dated 24.05.2021 by issuing Income-tax (16th Amendment) Rules, 2021 has notified Rule 11UAE of the Income Tax Rules, 1962 (“Rules”) to compute the Fair Market Value (FMV) of Capital Assets for the purposes of section 50B of the Income-tax Act, 1961 (“Act”) for the purpose of computing the capital gains in case of an exchange of assets in a slump sale.
Finance Act, 2021 has amended the provisions of the Act related to the scope of the term ‘slump sale’ to cover all types of transfers as specified under Section 2(47) of the Act. Thus the definition of ‘slump sale’ is expanded to that extent.
Section 50B deals with charging gains from slum sale of an undertaking under the head ‘capital gains’. In a slump sale, an undertaking is transferred from one person to another as a going concern for a lumpsum consideration without values being assigned to the individual assets and liabilities transferred.
Section 50B was introduced in the statute by the Finance Act, 1999. Prior to the insertion of section 50B, there was no computation mechanism in the Act for charging capital gains tax on slump sale. Finance Act, 1999 has provided the clarity that the gains arising from such sales would be taxed under the head “capital gains” and there should be no ambiguity with regard to the mode of computation of such profits and gains.
Section 2(42C) was also inserted in the Act to define the term ‘Slump Sale’ as transfer of one or more undertakings as a result of the sale for a lump-sum consideration without values being assigned to the individual assets and liabilities.
The word ‘sale’ is not defined in the Income Tax Act.One can rely upon its meaning set forth in other statutes such as the Transfer of Property Act, 1882 which defines the word ‘sale’ to mean a transfer of ownership in exchange for a price paid or promised or part paid and part promised. The word ‘price’ is not defined either under the Income Tax Act, 1961 or under the Transfer of Property Act, 1882, but is defined under Section 2(10) of the Sale of Goods Act, 1930 to mean money consideration for the sale of goods.
It was consistently held that a monetary consideration is necessary for a transaction to qualify as a slump sale.
Thus, in order to provide for more clarity and to include exchange transactions for non-monetary consideration in case of slump sale within the ambit of slump sale transactions, an amendment is carried out in section 2(42C) of the Act.
The amended definition of the term “slump sale” as per clause (42C) of section 2 of the Act now covers/includes all types of “transfer” as defined in clause (47) of section 2 of the Act.
Now, "slump sale" means the transfer of one or more undertaking, by any means for a lump sum consideration without values being assigned to the individual assets and liabilities in such sales.
When the Finance Bill, 2021 was introduced in the Parliament, though the exchange is covered in a slump sale, there was no mechanism proposed to compute the fair value of the assets exchanged in case slump sale takes place in non-monetary consideration.
However, when the Lok Sabha passed the Finance Bill, 2021, then by a government amendment, sub-section (2) of section 50B was proposed to be amended to provide for the computation of fair market value of the capital assets as on the date of transfer in the prescribed manner.
Read Also:
Lok Sabha Passes Finance Bill, 2021 with 109 Proposed Amendments
Slump Sale to include All Transfers with or without Consideration: Budget 2021
Now by virtue of powers conferred by section 50B(2)(ii) of the Act, the CBDT has notified Rule 11UAE for computing the fair market value of the capital assets for the purpose of computing the full value of the consideration as per clause (ii) of sub-section (2) of section 50B.
As per the notified Rules, the basic principle of determining the full value of consideration in case of an exchange of assets in a slump sale is the fair market value of the assets transferred or the fair market value of the assets received in the slump sale, whichever is higher is to be considered. Both the FMVs of the assets transferred and received are to be determined as per Rule 11UAE.
It should be noted that this Rule 11UAE also refers to the valuation method as prescribed in Rule 11UA(1) for the valuation of shares and securities, if any, and is involved in the exchange of assets in the slump sale.
Further, the valuation shall be done on the date of slump sale both under Rule 11UAE and Rule 11UA.
Rule 11UAE has four sub-rules as discussed below.
Sub-Rule (1) of Rule 11UAE
Rule 11UAE(1) prescribes the fair market value (FMV) of the assets transferred in slump sale. It prescribes the value shall be the higher of -
the FMV of the capital assets as determined as per Rule 11UAE(2), termed as FMV1,
or
the FMV of the capital assets as determined as per Rule 11UAE(3), termed as FMV2
Sub-Rule (2) of Rule 11UAE
Rule 11UAE(2) prescribes the formula to determine the FMV1. In other words, the FMV1 shall be the fair market value of the capital assets transferred by way of slump sale shall be determined in accordance with the formula-
FMV1 = A+B+C+D-L
Where,
FMV1 = fair market value (FMV) of the assets transferred in slump sale determined as per rule 11UAE(2)
A = book value of all the assets as appearing in the books of accounts of the undertaking or the division transferred by way of slump sale.
The ‘assets’ shall not include the following assets-
Jewellery,
Artistic work,
Shares & Securities and
Immovable Property.
Further, the followings shall be deducted from the value of above assets to the extent it relates to the undertaking or division transferred by way of slump sale-
(a) Amount of income tax paid (advance tax, self assessment tax paid, TDS, etc.) to be reduced by amount of income-tax refund claimed, and
(b) Amount of deferred revenue expenditure which does not represent any asset
In other words, the value of “A” in the above formula is determined as below-
B,C and D are the valuation rules for the excluded assets. Thus-
B = Value of Jewellery and Artistic work shall be the open market sale price as per valuation report obtained from a registered valuer
C = Value of Shares & Securities shall be determined as per Rule 11UA(1)
D = Value of Immovable Property shall be the stamp duty value or the circle rate adopted by the state government
L= book value of liabilities as appearing in the books of accounts of the undertaking or the division transferred by way of slump sale. It shall exclude the followings-
(a) Paid-up equity share capital
(b) Amount of Proposed Dividend on preference shares and equity shares
(c) Reserves and Surplus other than Depreciation Reserve
(d) Provision for tax
(e) Provisions made for meeting liabilities, other than ascertained liabilities
(f) Any amount representing contingent liabilities except arrears of dividends payable in respect of cumulative preference shares
Tabular presentation of computation of FMV1-
Sub-Rule (3) of Rule 11UAE
Rule 11UAE(3) prescribes the formula to determine the FMV2. In other words, the FMV2 shall be the fair market value of the capital assets received or accrued as a result of transfer by way of slump sale shall be determined in accordance with the formula-
FMV2 = E+F+G+H
Where,
FMV2 = fair market value of the consideration received or accruing as a result of transfer by way of slump sale determined as per rule 11UAE(3)
E = Value of the monetary consideration received or accruing as a result of the transfer
F = fair market value of non-monetary consideration received or accruing as a result of the transfer for property covered by Rule 11UA(1) shall be determined as per Rule 11UA(1)
G = fair market value of non-monetary consideration received or accruing as a result of the transfer for property not covered in rule 11UA(1) then the open market price of such property to be ascertained on the basis of the valuation report obtained from a registered valuer
H = fair market value of non-monetary consideration received or accruing as a result of the transfer for an immovable property, the stamp duty value adopted or assessed or assessable by the state government
Hence, ‘E’ denotes monetary consideration and ‘F’, ‘G’ and ‘H’ denotes non-monetary consideration and hence requires valuation. In this context, it should be noted that the valuation rules as prescribed in Rule 11UA(1) is referred to in this rule for properties which are covered in that Rule 11UA(1).
Rule 11UA(1) covers the following properties-
(a) Jewellery
(b) Archaeological collections, drawings, paintings, sculptures or any work of art
(c) Shares and securities
Tabular presentation of computation of FMV2-
Sub-Rule (4) of Rule 11UAE
Rule 11UAE(4) prescribes the ‘date of valuation’ of the properties. It prescribes that the fair market value of the capital assets under sub-rule (2) and sub-rule (3) shall be determined on the date of slump sale and for this purpose valuation date referred to in rule 11UA shall also mean the date of slump sale.
Conclusion
In the nutshell, the new rules prescribe the valuation method of slump exchange on the NAV method. The value of assets exchanged for the purpose of computing the capital gains riding from slum exchange is the higher of the FMV of net assets given or FMV of assets received.
Though there will be no monetary consideration in slump exchange but one has to pay the tax in money now. Readers should remember that the Finance Act, 2021 has amended the provisions of section 50B to tax the slump exchange from FY 2020-21 itself. In this regard, it is important to note that the Finance Act, 2021 was notified on 28th March 2021 whereas the computation Rules have been notified on 24th May 2021 which falls in the succeeding financial year. Therefore, there is a question of applicability of the Rules as to whether slump exchange effected prior to 24.05.2021 can be brought into tax as per amended provisions. Can the Rules being substantive provisions can be applied retrospectively.
Having said that it should be noted that if the transfers effected on or after 1-4-2020 is covered by the Rule 11UAE then there will definitely arise the liability of interest due to short payment of advance tax.
CBDT should come out with appropriate clarifications in this regard and waive the interest applicability on the slump exchange transactions that already took place.
Read the full text of Notification No. 68/2021 dated 24.05.2021 on FMV Calculation of Capital Assets in Slump Sale u/s 50B
MINISTRY OF FINANCE
(Department of Revenue)
(CENTRAL BOARD OF DIRECT TAXES)
NOTIFICATION
New Delhi, the 24th May, 2021
G.S.R. 338 (E).— In exercise of the powers conferred by section 50B read with section 295 of the Income-tax Act, 1961 (43 of 1961), the Central Board of Direct Taxes hereby makes the following rules further to amend the Income-tax Rules,1962, namely:─
1. Short title and commencement.-(1) These rules may be called the Income- tax (16th Amendment) Rules,
2021.
2. In the Income-tax Rules, 1962, after rule 11UAD, the following rule shall be inserted, namely: —
“11UAE.Computation of Fair Market Value of Capital Assets for the purposes of section 50B of the Income-tax Act.
(1) For the purpose of clause (ii) of sub-section (2) of section 50B, the fair market value of the capital assets shall be the FMV1 determined under sub-rule (2) or FMV2 determined under sub-rule (3), whichever is higher.
(2) The FMV1 shall be the fair market value of the capital assets transferred by way of slump sale determined in accordance with the formula –
A+B+C+D - L, where,
A= book value of all the assets (other than jewellery, artistic work, shares, securities and immovable property) as appearing in the books of accounts of the undertaking or the division transferred by way of slump sale as reduced by the following amount which relate to such undertaking or the division, —
(i) any amount of income-tax paid, if any, less the amount of income-tax refund claimed, if any; and
(ii) any amount shown as asset including the unamortised amount of deferred expenditure which does not represent the value of any asset;
B = the price which the jewellery and artistic work would fetch if sold in the open market on the basis of the valuation report obtained from a registered valuer;
C = fair market value of shares and securities as determined in the manner provided in sub-rule (1) of rule 11UA;
D = the value adopted or assessed or assessable by any authority of the Government for the purpose of payment of stamp duty in respect of the immovable property;
L= book value of liabilities as appearing in the books of accounts of the undertaking or the division transferred by way of slump sale, but not including the following amounts which relates to such undertaking or division, namely: —
(i) the paid-up capital in respect of equity shares;
(ii) the amount set apart for payment of dividends on preference shares and equity shares where such dividends have not been declared before the date of transfer at a general body meeting of the company;
(iii) reserves and surplus, by whatever name called, even if the resulting figure is negative, other than those set apart towards depreciation;
(iv) any amount representing provision for taxation, other than amount of income-tax paid, if any, less the amount of income-tax claimed as refund, if any, to the extent of the excess over the tax payable with reference to the book profits in accordance with the law applicable thereto;
(v) any amount representing provisions made for meeting liabilities, other than ascertained liabilities;
(vi) any amount representing contingent liabilities other than arrears of dividends payable in respect of cumulative preference shares.
(3) FMV2 shall be the fair market value of the consideration received or accruing as a result of transfer by way of slump sale determined in accordance with the formula-
E+F+G+H, where,
E = value of the monetary consideration received or accruing as a result of the transfer;
F = fair market value of non-monetary consideration received or accruing as a result of the transfer represented by property referred to in sub-rule (1) of rule 11UA determined in the manner provided in sub-rule (1) of rule 11UA for the property covered in that sub-rule;
G = the price which the non-monetary consideration received or accruing as a result of the transfer represented by property, other than immovable property, which is not referred to in sub-rule (1) of rule 11UA would fetch if sold in the open market on the basis of the valuation report obtained from a registered valuer, in respect of property;
H = the value adopted or assessed or assessable by any authority of the Government for the purpose of payment of stamp duty in respect of the immovable property in case the non-monetary consideration received or accruing as a result of the transfer is represented by the immovable property.
(4) The fair market value of the capital assets under sub-rule (2) and sub-rule (3) shall be determined on the date of slump sale and for this purpose valuation date referred to in rule 11UA shall also mean the date of slump sale.
Explanation. -For the purposes of this rule, the expression "registered valuer" and "securities" shall have the same meanings as respectively assigned to them in rule 11U.”.
[Notification No.68/2021/F. No.370142/16 /2021-TPL]
KAMLESH CHANDRA VARSHNEY, Jt. Secy. (Tax Policy and Legislation)
Note: The principal rules were published in the Gazette of India, Extraordinary, Part II, Section 3, sub-section (ii) vide number. S.O. 969 (E), dated the 26th March, 1962 and last amended vide notification number G.S.R. 320(E) dated 5th May, 2021.
Download Copy of CBDT Notification No. 68/2021 dated 24.05.2021 on FMV calculation in Slump Sale u/s 50B in pdf format
0 Comments