AAR says E*trade Mauritius' share-sale not tax liable in India

The AAR ruling affirms that the Indian tax authorities are not in a position to levy capital gains tax on the transfer of shares in an Indian company by a Mauritian tax resident in view of the provisions of the India-Mauritius tax treaty

The Authority for Advance Ruling (AAR) has said that E*Trade Mauritius Ltd (ET Mauritius) is not liable to pay capital gains tax in India as per the Double Taxation Avoidance Agreement—(DTAA) between the two countries.

ET Mauritius, a subsidiary of US-based Converging Arrows Inc which in turn is a subsidiary of E*Trade Financial Corp (ET USA), is a tax resident of Mauritius. It transferred shares it held in India-based IL&FS Investsmart Ltd (now called HSBC InvestDirect after the takeover by the foreign bank) to HSBC Violet Investment (Mauritius) Ltd. When ET Mauritius approached Indian tax authorities for a 'nil' rate withholding tax certificate under Section 197 of the Income-Tax (I-T) Act, the authorities issued a certificate directing HSBC to deduct tax on the amounts paid to ET Mauritius.

ET Mauritius filed a writ petition in the Bombay High Court challenging the certificate issued by the I-T authorities. Without going into the merits of the case, the High Court disposed of the petition and directed ET Mauritius to file a revision application under Section 264 of the I-T Act before the Director of Income-Tax (DIT) for International Taxation and also directed HSBC to deposit a sum of Rs245 million which would be withheld from the consideration paid to ET Mauritius, pending disposal of the revision petition by the DIT.  

However, DIT, confirming the view taken by the tax authorities that the transaction prima facie gave rise to capital gains chargeable to tax in India, disposed the revision petition filed by ET Mauritius. 

The company then approached AAR to determine whether, by virtue of being a resident of Mauritius, it is eligible to the benefits of the India-Mauritius treaty and hence not subject to tax in India on the capital gains realised.

Before the AAR, the DIT contended that though the legal ownership of shares of IL&FS vests with ET Mauritius, the real and beneficial owner is ET USA and hence, ET Mauritius is merely a facade to avoid capital gains in India. DIT said that it has taken a prima facie view that the capital gains arising from the transaction are taxable in the hands of ET USA.

ET Mauritius relied on the Circular No 789 dated 13 April 2000 issued by the Central Board of Direct Taxes (CBDT) and the decision of the Supreme Court in the case of Azadi Bachao Andolan and argued that the Tax Residency certificate issued by the Mauritian tax authorities should constitute sufficient evidence for accepting the status of residence for applying the provisions of the India-Mauritius tax treaty. {break}

The AAR in an order issued on 22nd March upheld the benefits available under the India-Mauritius tax treaty. It said, “As all the legal formalities for purchase of shares and their subsequent transfer had been completed by ET Mauritius and the consideration had been received by ET Mauritius, it is difficult to assume that capital gain has arisen to ET USA and not ET Mauritius."

The AAR also upheld the fact that ET USA provided the funds and played a role in negotiating the sale transaction did not lead to legal inference that the shares were, in reality, owned by ET USA.

"The fact that a subsidiary has its own corporate personality and is a separate legal entity needs to be considered. Even though the holding company exercises acts of control over its subsidiary, that did not, in the absence of compelling reasons, dilute the separate legal identity of the subsidiary," the AAR said.

Relying on the decision of the Supreme Court in the case of Azadi Bachao Andolan, the AAR held that there is no legal prohibition against 'treaty shopping' and tax avoidance is not objectionable if it is within the framework of law and not prohibited by law.

"The AAR ruling affirms that the Indian tax authorities are not in a position to levy capital gains tax on the transfer of shares in an Indian company by a Mauritian tax resident in view of the provisions of the India-Mauritius tax treaty, the Circular issued by CBDT and the law laid down by the Supreme Court in Azadi Bachao Andolan case," said Maulik Doshi of Sudit K Parekh & Co.

A ruling by the AAR is binding only on that applicant, in respect of the transaction in relation to which the ruling is sought and on the tax authority. However, it does have persuasive value and the courts in India, the tax authorities and the appellate authorities do recognise the principles and ratios laid down by the AAR while deciding similar cases. Other taxpayers who would like to achieve certainty on their transactions could consider approaching the AAR for a ruling after evaluating the facts of their respective cases.

"As far as the case of ET Mauritius is concerned, the only option available for the tax department now is to file a special leave petition before the Supreme Court against the said AAR ruling," Mr Doshi added.

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COMMENTS

rachana kothari

8 years ago

good one MD!

SBI extends teaser rates till 30th April

The decision comes despite the Reserve Bank of India repeatedly expressing its displeasure over teaser rates

Bringing cheer to homebuyers, the nation's largest lender State Bank of India has said that it has decided to extend its 8% special home loan scheme, under what are popularly known as ‘teaser rates’, till 30th April, reports PTI.

The decision comes despite the Reserve Bank of India (RBI) repeatedly expressing its displeasure over teaser rates, saying that it is unfair to existing borrowers, and most other lenders deciding to discontinue the scheme from this month end.

Those who avail of home loans till 30th April can get the 8% special fixed rate in the first year, and 9% in the second and third years of the loan, a top SBI official told PTI. The scheme was initially supposed to end by 31st March.

“We have decided to extend the special home loan scheme till 30th April. This is primarily because of the huge customer demand and popularity of the scheme,” the official said, who wished to be unidentified.

Under the extended offer, customers can avail of the benefit irrespective of the loan amount, the official said, adding after the offer period (30th April) the rate will go back to a floating rate.

SBI had initially launched these products last August for a limited period of three months, but later extended it till 31 March 2010 following huge customer demand.

The State-run banking behemoth has decided to go ahead with the scheme at a time when all other banks, which had initially launched the scheme, chose to withdraw it after the RBI expressed its disapproval over these loans and attributed them to drying up of liquidity in the system.

Leading private sector lenders like ICICI Bank, Axis Bank, and Kotak Mahindra Bank and State-run banks like Bank of India, Corporation Bank, Vijaya Bank, and Union Bank of India among others, have already announced their decision to withdraw their special cheap home loan schemes from this month end. The largest mortgage lender HDFC has also discontinued the scheme.

Under the original scheme—My Home Campaign—SBI offered an 8% fixed interest rate for five years for loans up to Rs5 lakh, with a maximum tenure of 10 years.

For loans above Rs5 lakh and up to Rs50 lakh, it offered a fixed rate of 8% during the first year and 8.5% during the second and third years.
 

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sonnigael

8 years ago

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The rally may be petering out

Equity analyst Teun Draaisma is one of the few investors who actually got the downturn and the upturn correct. In his latest strategy note Draaisma is saying that the rally has gotten ahead of itself and that we’re due for a correction.

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