India: Small Targets Get Relief – MCA Notification Expands Applicability Of Small Target Exemption

The Ministry of Corporate Affairs, Government of India (MCA) notified significant amendments (Notification) on 27 March 2017 to the small target exemption (also known as the de minimis exemption) (STE), expanding its scope to include mergers and amalgamations and clarifying that only the "true target" in case of asset acquisitions will now be considered for the purposes of determining the applicability of the asset and turnover thresholds under the Competition Act, 2002 (as amended) (Act).

The Notification takes effect as of 27 March 2017, which is the date of its publication.

This newsflash examines the changes and their impact.

THE STE AS IT STOOD EARLIER

Previously, the STE exempted only acquisitions of shares, voting rights or control from approval requirements under the Act if,

  1. The value of assets of the target enterprise was not more than INR 3.5 billion (approximately USD 54 million; EUR 50 million; GBP 43 million; JPY 6 billion) in India;
  2. The turnover of such enterprise was not more than INR 10 billion (approximately USD 154 million; EUR 143 million; GBP 124 million; JPY 17 billion) in India.

The STE was not applicable to transactions structured as mergers or amalgamations (transactions where one entity merged with or amalgamated into another).

Additionally, in case of asset acquisitions, the assets and turnover of the selling enterprise, and not the value of the true target assets/division/business being acquired, were considered for the purposes of applying the threshold tests under the Act.

THE NOTIFICATION AND ITS AMENDMENTS

Expanded Scope of the STE: Mergers & Amalgamations

While the thresholds under the STE remain constant, the STE is now applicable in case of acquisitions as well as mergers and amalgamations under Section 5(c) of the Act.

Expanded Scope of the STE: Asset Acquisitions

The Notification clarifies, as a matter of principle, that where only a "portion of an enterprise or division or business is being acquired", it is the value of the assets and turnover attributable to the relevant portion or division or business that will considered to determine the applicability of the thresholds under the Act, and therefore, parties will no longer be obliged to look to the seller's assets / turnover.

The value of the assets of the business or division or the portion of the enterprise being acquired shall be determined with reference to the audited books of account of the enterprise or as per the statutory auditor's report in the financial year immediately preceding the financial year in which the proposed combination) transaction falls. Similarly, the turnover shall be certified by the statutory auditor on the basis of the last available accounts of the company.

This amendment takes away from the principle of attributability which has been cited by the Competition Commission of India (CCI) in Regulation 5(9) of the CCI (Procedure in regard to the transaction of business relating to combinations) Regulations, 2011 (Combination Regulations), various orders passed by the CCI and explained in a document published on the website of the CCI titled Frequently Asked Questions for Combinations in India. The principle of attributability required that for asset acquisitions the value of assets and turnover of the enterprise whose assets were being transferred would be attributed to the value of assets and turnover of the enterprise to which the assets are being transferred.

Now, it is only the value of assets and turnover of the true target that will be considered, as opposed to that of the seller.

In our opinion, the CCI will now also have to amend the Combination Regulations to this effect considering the clear conflict between the Notification and the Regulation 5(9) of the Combination Regulations.

Expanded Scope of STE: Applicability to Foreign Transactions

The Notification and its changes will also apply to asset transfers where the assets are located outside India or the said assets have no turnover attributable to India or where the assets / turnover of the assets being transferred pursuant to the foreign-to-foreign transaction meet the de minimis threshold.

Expanded Scope of STE: Applicability to Joint Ventures

The principle of attributability required that the value of assets / turnover of each of the parents contributing business / assets to the joint venture would be considered "targets" for the purposes of applying the thresholds under the Act. These were understood to be "brownfield" joint ventures and were thus notifiable to the CCI. The principle applied similarly to a brownfield joint venture, where the parents transferred assets to the joint venture entity and were in effect treated as the targets themselves. In light of this Notification, this approach is no longer necessary and the value of the assets and turnover attributable only to the portion of the assets that are being transferred to the joint venture company by the parents will be considered.

Brownfield joint ventures need only be notified when the true target meets the relevant thresholds under the Act.

Expanded Scope of the STE: Validity and Time Period

The STE as previously notified by the MCA by its notification dated 4 March 2016 has been rescinded and is now applicable for a period of five years from the date of publication of the Notification i.e., until 27 March 2022. The amendments in the Notification with respect to the principle of attributabilty, clarifying that it is only the value of the true target that need be considered for the purposes of the filing thresholds, is not limited by time.

Khaitan Comment

Indeed, this is a welcome step as it aligns the Indian merger control regime with internationally accepted practices. Particularly with regard to asset acquisitions, this will substantially reduce the number of notifications received by the CCI since this is a narrower approach with a focus on the "true" target, as opposed to the selling enterprise. This will also reduce the burden on transacting parties and brings relief to transactions that have limited or no nexus to India.

The content of this document do not necessarily reflect the views/position of Khaitan & Co but remain solely those of the author(s). For any further queries or follow up please contact Khaitan & Co at legalalerts@khaitanco.com

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
In association with
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.

Disclaimer

Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.

Registration

Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.

Cookies

A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.

Links

This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.

Mail-A-Friend

If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.

Security

This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.