Section 5 - Combination - Competition Act, 2002

Regulation of combinations Combination. 5. The acquisition of one or more enterprises by one or more persons or merger or amalgamation of enterprises shall be a combination of such enterprises and persons or enterprises, if ( a ) any acquisition where ( i ) the parties to the acquisition, being the acquirer and the enterprise, whose control, shares, voting rights or assets have been acquired or are being acquired jointly have, ( A ) either, in India, the assets of the value of more than rupees one thousand crores or turnover more than rupees three thousand crores; or [ ( B ) in India or outside India, in aggregate, the assets of the value of more than five hundred million US dollars, including at least rupees five hundred crores in India, or turnover more than fifteen hundred million US dollars, including at least rupees fifteen hundred crores in India; or ] ( ii ) the group, to which the enterprise whose control, shares, assets or voting rights have been acquired or are being acquired, would belong after the acquisition, jointly have or would jointly have, ( A ) either in India, the assets of the value of more than rupees four thousand crores or turnover more than rupees twelve thousand crores; or [ ( B ) in India or outside India, in aggregate, the assets of the value of more than two billion US dollars, including at least rupees five hundred crores in India, or turnover more than six billion US dollars, including at least rupees fifteen hundred crores in India; or ] ( b ) acquiring of control by a person over an enterprise when such person has already direct or indirect control over another enterprise engaged in production, distribution or trading of a similar or identical or substitutable goods or provision of a similar or identical or substitutable service, if ( i ) the enterprise over which control has been acquired along with the enterprise over which the acquirer already has direct or indirect control jointly have, ( A ) either in India, the assets of the value of more than rupees one thousand crores or turnover more than rupees three thousand crores; or [ ( B ) in India or outside India, in aggregate, the assets of the value of more than five hundred million US dollars, including at least rupees five hundred crores in India, or turnover more than fifteen hundred million US dollars, including at least rupees fifteen hundred crores in India; or ] ( ii ) the group, to which enterprise whose control has been acquired, or is being acquired, would belong after the acquisition, jointly have or would jointly have, ( A ) either in India, the assets of the value of more than rupees four thousand crores or turnover more than rupees twelve thousand crores; or [ ( B ) in India or outside India, in aggregate, the assets of the value of more than two billion US dollars, including at least rupees five hundred crores in India, or turnover more than six billion US dollars, including at least rupees fifteen hundred crores in India; or ] ( c ) any merger or amalgamation in which ( i ) the enterprise remaining after merger or the enterprise created as a result of the amalgamation, as the case may be, have, ( A ) either in India, the assets of the value of more than rupees one thousand crores or turnover more than rupees three thousand crores; or [ ( B ) in India or outside India, in aggregate, the assets of the value of more than five hundred million US dollars, including at least rupees five hundred crores in India, or turnover more than fifteen hundred million US dollars, including at least rupees fifteen hundred crores in India; or ] ( ii ) the group, to which the enterprise remaining after the merger or the enterprise created as a result of the amalgamation, would belong after the merger or the amalgamation, as the case may be, have or would have, ( A ) either in India, the assets of the value of more than rupees four thousand crores or turnover more than rupees twelve thousand crores; or [ ( B ) in India or outside India, in aggregate, the assets of the value of more than two billion US dollars, including at least rupees five hundred crores in India, or turnover more than six billion US dollars, including at least rupees fifteen hundred crores in 1 [ India; or ] ] 2 [ (d) value of any transaction, in connection with acquisition of any control, shares, voting rights or assets of an enterprise, merger or amalgamation exceeds rupees two thousand crore: Provided that the enterprise which is being acquired, taken control of, merged or amalgamated has such substantial business operations in India as may be specified by regulations. (e) notwithstanding anything contained in clause (a) or clause (b) or clause (c), where either the value of assets or turnover of the enterprise being acquired, taken control of, merged or amalgamated in India is not more than such value as may be prescribed, such acquisition, control, merger or amalgamation, shall not constitute a combination under section 5. ] 3 [ Explanation. For the purposes of this section, (a) control means the ability to exercise material influence, in any manner whatsoever, over the management or affairs or strategic commercial decisions by (i) one or more enterprises, either jointly or singly, over another enterprise or group; or (ii) one or more groups, either jointly or singly, over another group or enterprise; (b) group means two or more enterprises where one enterprise is directly or indirectly, in a position to (i) exercise twenty-six per cent. or such other higher percentage as may be prescribed, of the voting rights in the other enterprise; or (ii) appoint more than fifty per cent. of the members of the board of directors in the other enterprise; or (iii) control the management or affairs of the other enterprise; (c) turnover means the turnover certified by the statutory auditor on the basis of the last available audited accounts of the company in the financial year immediately preceding the financial year in which the notice is filed under sub-section (2) or sub-section (4) of section 6 and such turnover in India shall be determined by excluding intra-group sales, indirect taxes, trade discounts and all amounts generated through assets or business from customers outside India, as certified by the statutory auditor on the basis of the last available audited accounts of the company in the financial year immediately preceding the financial year in which the notice is filed under sub-section (2) or sub-section (4) of section 6; (d) value of transaction includes every valuable consideration, whether direct or indirect, or deferred for any acquisition, merger or amalgamation; (e) the value of assets shall be determined by taking the book value of the assets as shown, in the audited books of account of the enterprise, in the financial year immediately preceding the financial year in which the date of proposed combination falls and if such financial statement has not yet become due to be filed with the Registrar under the Companies Act, 2013 (18 of 2013) then as per the statutory auditor's report made on the basis of the last available audited accounts of the company in the financial year immediately preceding the financial year in which the notice is filed under sub-section (2) or sub-section (4) of section 6, as reduced by any depreciation, and the value of assets shall include the brand value, value of goodwill, or value of copyright, patent, permitted use, collective mark, registered proprietor, registered trade mark, registered user, homonymous geographical indication, geographical indications, design or layout-design or similar other commercial rights under the laws provided in sub-section (5) of section 3; (f) where a portion of an enterprise or division or business is being acquired, taken control of, merged or amalgamated with another enterprise, the value of assets or turnover or value of transaction as may be applicable, of the said portion or division or business or attributable to it, shall be the relevant assets or turnover or relevant value of transaction for the purpose of applicability of the thresholds under section 5. ] ************** NOTES:- 1. Substituted vide Competition (Amendment) Act, 2023 dated 11-04-2023 before it was read as, India. 2. Inserted vide Competition (Amendment) Act, 2023 dated 11-04-2023 3. Substituted vide Competition (Amendment) Act, 2023 dated 11-04-2023 before it was read as, Explanation. For the purposes of this section, ( a ) control includes controlling the affairs or manage ment by ( i ) one or more enterprises, either jointly or singly, over another enterprise or group; ( ii ) one or more groups, either jointly or singly, over another group or enterprise; ( b ) group means two or more enterprises which, directly or indirectly, are in a position to ( i ) exercise twenty-six per cent or more of the voting rights in the other enterprise; or ( ii ) appoint more than fifty per cent of the members of the board of directors in the other enterprise; or ( iii ) control the management or affairs of the other enterprise; ( c ) the value of assets shall be determined by taking the book value of the assets as shown, in the audited books of ac count of the enterprise, in the financial year immediately pre ceding the financial year in which the date of proposed merger falls, as reduced by any depreciation, and the value of assets shall include the brand value, value of goodwill, or value of copyright, patent, permitted use, collective mark, registered proprietor, registered trade mark, registered user, homonymous geographical indication, geographical indications, design or layout-design or similar other commercial rights, if any, re ferred to in sub-section (5) of section 3.