Ushering an era of transparency has been one of the key agendas of the government. Post demonetisation, one of the key challenges before the government was eradicating all possible avenues for generation of black money, particularly through corporate structures. Until 2017, in absence of any valuation rules for transfer of unlisted shares, transfer of shareholding of unlisted companies was allegedly one of the prevalent mechanisms of movement of valuable assets between individuals, and resulted in generation of unaccounted cash.
Tax on transfer of unlisted shares – seller perspective
The government has made amendments to the Income Tax Act, and introduced detailed guidelines (Section 50CA read with Rule 11UA of the Income Tax Rules) with respect to valuation of unlisted equity shares. This means that, if you are the owner of equity shares of an unlisted company, then transfer of such unlisted equity shares has to be done at a fair valuation, as per prescribed valuation rules. Under the earlier provisions, the transfer of valuable unlisted equity shares by the transferor would have saved him significant taxes. However, under the new valuation guidelines, the transfer of unlisted shares have to be at fair value thereby bringing in higher taxes to the exchequer and consequently acting as a deterrent to transfer unlisted equity shares at a value lower than fair market value, determined as per prescribed valuation rules.
New valuation rules
Under the erstwhile valuation guidelines, applicable to recipient of unlisted equity shares, the valuation of unlisted equity shares was based on only on the direct book value of assets / liabilities of the company whose unlisted equity shares were transferred, however no adjustment was provided with respect to assets held by the company through complex cross holdings. Under the new provisions, the provisions of valuation of unlisted equity shares has been rationalised both for seller and buyer, and the revised regulations provide that while valuing the unlisted equity shares, the entire cobweb of shareholdings held directly / indirectly by the unlisted company shall be valued.
Tax on transfer of unlisted shares – buyer perspective
Another major amendment in the Income Tax Act is rationalisation of the provisions of taxation in hands of a recipient who purchases unlisted equity shares. In order to curb the practice of receiving shares without consideration or for inadequate consideration, it has been proposed to insert a new clause (x) under section 56(2). This section provides for taxability in the hands of the purchaser of shares, if the purchase is made without consideration or for consideration less than the fair market value of such unlisted shares. The valuation principle for determining fair market value of unlisted equity shares, from a buyer perspective, are same as laid down for the seller of shares. A combined reading of the provisions of the Act, provides that the new regulations have placed both the buyer and seller of unlisted shares in a precarious position, and now there could be a liability of tax on both of them, if the price of the unlisted equity shares is below the fair market value. The investors need to exercise caution while transferring unlisted equity shares and ensure that the price at which the transaction has been entered into is higher than the value laid down by the valuation guidelines. It may however be noted that the valuation guidelines, as of now, do not extend to valuation of complex equity instruments like compulsorily convertible debentures, optionally convertible preference shares.