The merger of Orient Green Power Co. Ltd’s (OGPL) wind power business with IL&FS Wind Energy may come unstuck because of a new provision that mandates payment of long-term capital gains tax on share sales where securities transaction tax (STT) has not been paid.

While the merger announcement for 1.2 giga watts (GW) of operating assets was made in January, the tax implications arose due to changes announced in the budget pertaining to STT on 1 February, according to two people aware of the development. 

The provision has upset the tax planning of the firms that are going for mergers and acquisitions as several such deals are undertaken off-market to avoid influencing share prices among other reasons.

The government last month issued a draft notification clarifying that long-term capital gains tax will be applicable only in three cases—one of them being sale of listed equity shares in a firm done outside a recognized stock exchange.

The last large deal in clean energy was last year when Tata Power Co. Ltd bought Welspun Energy Ltd’s entire 1.1 GW renewable energy portfolio for $1.4 billion.

“There are huge tax implications due to changes announced in the budget pertaining to the securities transaction tax. The numbers are being reworked,” said a person aware of the development, requesting anonymity.

Investment banking firm Arpwood Capital has been engaged as sole advisor to the transaction.“The deal has encountered a tax implication issue,” said another person who didn’t want to be named.

Under current norms, any capital gains from shares held for more than a year are fully tax-exempt if STT of 0.1% is paid at the time of selling them. Currently, STT is not paid when shares are acquired in off-market deals such as gifting, issuing employee stock options and selling shares to private equity firms. 

Both firms had entered into a non-binding agreement with an exclusivity period of 90 days, according to a 19 January OGPL statement. This period has been further extended. 

“Subsequent to the demerger, OGPL will have an operating wind capacity of 425MW in FY17 with an additional 43MW under construction which will augment capacity of the combined entity in FY18. IL&FS Wind has an operating capacity of 775 MW in FY17. IL&FS is also developing an additional 228 MW, which the merged entity will be in a strong position to acquire,” the OGPL statement added.

Spokespersons for OGPL, IL&FS and Arpwood Capital declined comment.

“Multiple options are being considered and it would be premature to comment on the benefits/demerits of any single structure. Should the merger be approved by both parties, we shall make all necessary public disclosures about the final contours of the merger in the appropriate forum,” said K.V. Kasturi, chief financial officer of OGPL in an emailed response.

There is growing consolidation in the Indian wind energy space even as the sector is grappling with issues such as squatters encroaching on sites that have a good potential for wind energy projects, inordinate delays in signing of power purchase agreements (PPAs) and untimely payments.

“By way of a general observation, we are of the view that the business environment is improving and as the various measures proposed by the government come into effect, we would see even more activity on the ground. Inevitably, this should lead to increased demand across the board,” added the IL&FS spokesperson in an emailed response.