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Competition Commission of India tightens rules to see through mergers and acquisitions structures
April, 04th 2014

The competition watchdog has tightened its rules to ensure that companies do not escape its scrutiny through innovative structuring of mergers and acquisitions. The Competition Commission of India (CCI) has clarified that it will look at the substance of the transaction and not just the structure while approving any merger.

Most of the combinations involving Indian companies or having presence in India have to get CCI nod. "The requirement of filing notice under Regulation 5 of these regulations shall be determined with respect to the substance of the transaction and any structure of the transaction," said the notification by the CCI.

The commission has also deleted a clause under the merger regulations pertaining to the relaxation of transactions that take place entirely outside the Indian jurisdiction. CCI has said that there is no need for seeking its approval if the transaction has taken place entirely outside India with "insignificant local nexus and effect on markets in India".

"The amendments by the CCI certainly bring more clarity and certainty in the combination regulation. The new Sub-clause 5 of Regulation 9 is an extension of the idea behind Regulation 5(9) that commission will disregard the structure and consider the intent of the transaction," said Gautam Shahi, senior associate, J Sagar Associates.

The commission has also said parties that decide to merge will now be required to provide their audited annual accounts of immediate preceding two financial years.

The fee for filing forms by enterprises has been increased. The fee for filing Form I under various combinations has been hiked toRs 15 lakh from Rs 10 lakh. The fee for submitting Form II has also been increased to Rs 50 lakh from Rs 40 lakh.

Form I has limited information while Form II is more elaborate. Moreover, enterprises entering into combination would now have to furnish details related to whether the proposed transaction is subject to filing requirements in other jurisdictions. The ministry of corporate affairs notified CCI (procedure with regard to the transaction of business relating to combinations) Amendment Regulations, 2014 on March 28.

"The steps regarding looking at the substance of the transaction and not the structure and omitting requirement for filing when transaction is outside India, have been in the right direction," said Vinod Dhall, former head of CCI. However, he said that he was also expecting some introduction on regulation for joint ventures in India.

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