When you sell or hand over a business in India, the transfer structure you choose changes the legal, tax and compliance outcome for both sides. The two broad routes are transferring the business entity (through a share sale, or a slump sale of the undertaking) or selling specific assets. Settling this before you sign a term sheet often matters more than the headline price.
Four ways to transfer a business
- Share transfer: The buyer acquires the company's shares, so the entity, its PAN, GSTIN, licences, contracts and liabilities all continue unchanged. Executed on Form SH-4 with stamp duty at 0.015% of consideration, uniform across India since July 2020.
- Slump sale: An entire undertaking is transferred as a going concern for a single lump-sum price, without assigning values to individual assets (Section 2(42C) of the Income-tax Act, 1961).
- Asset (itemised) sale: Only selected assets are sold, each with a separate value; the seller keeps the shell company and its history.
- Merger / demerger: Entities are combined or split through an NCLT-approved scheme under Sections 230-232 of the Companies Act, 2013.
Share sale vs asset sale at a glance
| Aspect | Share sale | Asset sale |
|---|---|---|
| Liabilities | Pass to the buyer with the company | Stay with the seller unless expressly assumed |
| Contracts & licences | Continue in the company's name | Need novation / fresh application |
| Employees | Employment continues uninterrupted | May need re-hiring; continuity of service issues |
| GST | Not a supply (no GST on share transfer) | Taxable supply on each asset |
| Seller's tax | Capital gains on the shares | Depreciation recapture + capital gains |
| Due diligence | Comprehensive (whole entity) | Asset-specific |
How a slump sale is taxed
A slump sale is taxed under Section 50B. The gain equals the sale consideration minus the net worth of the undertaking, which is deemed to be its cost of acquisition, so no indexation is allowed. If the undertaking was held for more than 36 months, the gain is long-term and taxed at 12.5% (plus surcharge and cess) for transfers on or after 23 July 2024; if held for less, it is short-term and taxed at the seller's normal slab or corporate rate. The consideration cannot be understated — the taxable value is the higher of the price agreed and the fair market value computed under Rule 11UAE. The seller must also file a chartered accountant's report in Form 3CEA with the income-tax return.
GST and stamp duty
Transfer of a business "as a going concern, as a whole or an independent part" is exempt from GST under serial no. 2 of Notification 12/2017-Central Tax (Rate). Unutilised input tax credit can be carried over to the buyer by filing Form ITC-02 under Section 18(3) read with Rule 41 of the CGST Rules. An itemised asset sale, in contrast, is a taxable supply and attracts GST at each asset's applicable rate. Immovable property in any route also triggers state conveyance stamp duty, which is far heavier than the 0.015% payable on a share transfer.
Common mistakes to avoid
- Assuming a share sale ends your exposure — hidden tax demands, litigation and creditor claims travel with the company, so run comprehensive due diligence and negotiate indemnities.
- Treating a slump sale as itemised by assigning values to individual assets, which breaks Section 2(42C) and can cost you the going-concern GST exemption.
- Forgetting to novate contracts and re-apply for licences in an asset sale; they do not pass automatically.
- Overlooking employee transfer terms — in an asset sale, staff may need fresh appointment letters and protection of continuity of service under labour law.