India eases rules to allow merger of Indian companies with foreign firms

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Under the new rules, the merger will also require prior approval of the Reserve Bank of India.

India will allow local companies to merge with overseas firms, easing rules to help home-grown businesses restructure their expanding global operations, and pave the deck for more listings of securities on capital markets abroad.

“Until now, only inbound mergers were permitted. With outbound mergers now permissible, there would be a lot of opportunities for Indian companies to acquire, restructure, or list on offshore exchanges as well,” said Mehul Shah, a partner at Khaitan and Co.

Until the federal notification by the corporate affairs ministry on April 13, India had permitted only inbound mergers. The merger would be in compliance with the Companies Act, 2013, and require prior approval of the Reserve Bank of India (RBI).

The notification also lists certain jurisdictions on the foreign companies, covering countries that comply with rules such as being members of the Financial Action Task Force (FATF) and whose central banks are members of the Bank for International Settlements (BIS).

Experts, however, believe that certain related laws must be amended before these rules take effect. “There would be need to have clarifications under tax laws. Exchange control regulations need to be re-looked and clarified to give effect to this notification. Also, an obligation is cast on RBI to provide approval for these mergers, as today, the RBI does not have mechanisms in place for this,” Shah added.

“Now exchange control regulations, securities laws, etc will need to be amended to facilitate a practical implementation of the amended law,” said Amit Maru, partner-transaction tax at EY.

The notification amends the Companies (Compromises, Arrangements and Amalgamations) Rules, 2016, notified in December 2016. Previously, mergers or demergers were governed by the Companies Act, 1956 before the notification of provisions of the Companies Act, 2013.

But, there were some gaps in the rules governing mergers. The latest notification seeks to fill these gaps. For instance, the law was earlier unclear on prior RBI approval even for inbound mergers, it is now clear that the nod is necessary.

“It might take some time for an Indian company to merge into a foreign company as it is not only one law but a host of laws which have to be amended before this becomes operational. For instance, income tax laws will have to be amended to give you a tax-neutral merger status because all mergers today are otherwise tax-neutral.” said Maru.The government had recently exempted firms, with Indian revenue of less than Rs 1,000 crore, from seeking the prior approval of the Competition Commission of India (CCI) while going in for a merger.