Transfer pricing not attracted in the absence of liability to pay tax: AAR

Applicant: Goodyear Orient Company (Private) Ltd.and anr. on 02^nd May, 2011

A.A.R. Nos. 1006 & 1031 of 2010

Assessment Year:

Relevant Facts:

1. The Applicants are

(i) GTRC, a company incorporated in the US

(ii) GOCPL, a company incorporated in Singapore

(iii) GIL, a company incorporated in India.

The companies manages natural rubber purchasing and other business.

2. Entity (i) owns 75% of the shares in entity (iii) and seeks to transfer it to entity (ii) through a Share Contribution Deed (SCD).

Applicants questions:

1. Whether applicant (i) would be charged capital gains or any other tax?

2. Whether transfer pricing provisions are applicable on applicant (i)?

3. Whether any TDS is required to be deducted by applicant (i)?

4. Whether any tax would arise on GOCPL u/s 56?

Allowing the application of the assessee, the Hon’ble Authority held that:

(i) In the absence of any consideration for transfer, no income may be attributed to the transferee and thus, capital gains tax would not be applicable.

(ii) In the absence of liability to pay tax, Transfer Pricing provisions would not apply.

The decision is available here.

Sale of a Capital Asset to a non-resident, even though the capital asset is situated in India, would be taxable in the other state: AAR

D.B.Zwirn Mauritius Trading v. Director of Income-tax, decided on 28^th March, 2011

AAR NO. 878 OF 2010

Assessment Year: 2009-10

Relevant Facts:

1. The applicant, D.B. Zwirn Mauritius Trading No. 3 Ltd. is a company incorporated in Mauritius and was issued a Tax Residence Certificate by the Mauritius Tax Authorities. It is engaged in the business of investments in different sectors.

2. The applicant held 5,33,333 equity shares of Quippo Telecom Infrastructure Limited, an Indian company. These were acquired on 19th September, 2007, for a consideration of Rs.2,13,33,320.

3. On 10th November, 2009, the applicant entered into a share purchase agreement to sell these 5,33,333 shares to Geraldton Finance Limited, a Mauritius based company, for a consideration of Rs.5,59,99,965.

4. The applicant realized capital gain of Rs.2,98,67,010.

Questions for consideration:

1. Whether the Applicant, in relation to the transaction involving sale of shares as explained in the statement of facts, is liable to capital gains tax in Mauritius in terms of Article 13(4) of the Double Taxation Avoidance Agreement (DTAA) between India and Mauritius?

2. Whether the transaction of sale of shares of an Indian company as per Share Purchase Agreement dated November 10, 2009 attracts capital gain tax liability in terms of provisions of Income Tax Act 1961 and Double Taxation Avoidance Agreement between India and Mauritius?

3. Whether, in respect of the transaction of sale of shares explained in statement of facts, there is any withholding tax liability under section 195 of the Income-tax Act, 1961.

Upholding the application of the assessee, the Hon’ble Authority held that:

Para 9: “On the facts presented by the applicant and in the light of legal position discussed, the applicant is not liable to pay capital gains tax in India in respect of the transfer of shares held in Quippo Telecom Infrastructure Limited (Indian Company) to Geraldton Finance Limited, a Mauritius based company having regard to the provisions of India-Mauritius DTAA.”

The decision is available here.

If a foreign company is liable to tax in India, even if not actually paying tax, has to necessarily file a return u/s 139(1): AAR

Also held:

The transfer pricing provisions from section 92 to 92F of the Act not attracted when sale and purchase of shares between non- resident companies.

VNU International v. Director of Income Tax, 28^th March, 2011

AAR No. 871 of 2010

Relevant Facts:

1. The applicant states that it is a tax resident of the Netherlands and does not have any permanent establishment in India.

2. The applicant first transferred 50% of shares it held in ORG-IMS, a company incorporated in India to IMS-AG, a company incorporated in Switzerland. After the transfer, the applicant was left with 50,765 shares of ORG-IMS, amounting to 50% of the total shares.

3. In a subsequent SPA, the applicant transferred 50% of the shares (50,765 shares) to IMS-AG & Interstatistik AG for a total consideration of ` 74,08,643. The shares were acquired for a consideration of ` 4,61,500.

Questions for consideration:

1. On the facts and circumstances of the case, whether any capital gain earned by VNU International on transfer of 50,765 shares of ORG-IMS to the purchasers would be liable to tax in India as per the provisions of the Act and the Tax Treaty between India and the Netherlands?

2. On the facts and circumstances of the case, if the capital gain is not taxable in India, whether the applicant is required to file any return of income under section 139 of the Act?

3. On the facts and circumstances of the case, whether the transfer of shares by the applicant to IMS AG attracts the transfer pricing provisions of section 92 to 92F of the Act?

4. On the facts and circumstances of the case, whether IMS AG were liable to withhold taxes under section 195 of the Act and if so, on what amount would the tax have to be deducted?

Partly upholding the application of the applicant, the Hon’ble Court held that:

Para 7: “ Transfer pricing provisions from section 92 to 92F of the Act would not be attracted as the sale and purchase of shares is between non- resident companies of the Netherland and Switzerland. Since there is no income chargeable to tax, there would be no liability to deduct tax u/s.195 of the Act.”

Para 8: “We are in agreement with the Learned Advocate that the capital gains earned by the applicant on transfer of shares would be covered by Article 13(5) of the Tax Treaty and shall be taxable only in the Netherlands, the state in which the transferor is a resident.”

Para 13: “...Then, as per the third proviso, every company is required to file its return of income, whether it has an income or a loss. The applicant being a foreign company, is covered within the definition of a company under section 2(17) of the Act. The applicant does not dispute that the income arising from the sale of shares is liable to be taxed in India by virtue of section 5(2) of the Act, though no tax is actually paid in India. It is a different matter that by virtue of DTAA the applicant is actually paying tax in the Netherlands. If the power to tax be granted it is difficult to appreciate the argument that when the resulting income is nil, there is no obligation to file return of income. It may be mentioned that where it is not necessary for a non- resident to furnish return under section 139(1) of the Act, the statue has specifically provided, as is the case under section 115AC(4) of the Act. Apart, it is necessary to have all the facts connected with the question on which the ruling is sought or is proposed to be sought in a vide amplitude by way of a return of income than alone by way of an application seeking advance ruling in Form 34C under IT Rules 1962. Instead of causing inconvenience to the applicant, the process of filing of return would facilitate the applicant in all future interactions with the Income tax department.”

The decision is available here.

AAR: In a contract for civil construction on turn-key basis, applicant would be eligible for presumptive rate of taxation under section 44BBB

Applicant: Toshiba Plant Systems and Services Corporation

A.A.R. No.864 of 2009

Assessment Year: 2010-11

Relevant Facts: M/s Toshiba Corporation, Japan, the holding company of the applicant is awarded a separate supply contract for off shore supply of plant and machineries to be installed at the Mundra UMP project.

The applicant would initially depute certain expats to the project office set up in Cyber Towers, Hitech city, Madhopur, Hyderabad for provision of services. Further in order to meet the project schedule, the applicant could in the course of the execution of the contract deploy additional expats and workforce, if required. It is contemplated to engage the services of a related party/third party for supply of labour for executing the work under the contract with CGPL.

Question/s before the Hon’ble Authority:

1. Whether on the stated facts and in law, the consideration received by the Applicant for the steam turbine, turbo generator erection of auxiliaries, other equipments including associated electrical, instrumentation and pre-commissioning work for the five units of 800 MW each of Ultra Mega Power Project at Mundra, Gujarat is eligible for presumptive rate of taxation under section 44BBB of the Act in India and accordingly, whether a sum equal to ten percent of the contract amount as and when received by the Applicant shall be deemed to be the profits and gains chargeable under the head, “Profit and gains of business of profession” of the Applicant in India?

2. Whether on the stated facts and in law, if the Applicant engages the services of a related party or third party for supply of labour for executing the work under the contract with the condition that the overall responsibility would remain with the Applicant, whether the Applicant would be eligible for presumptive rate of taxation under section 44BBB of the Act on the entire consideration receivable in terms of the contract?

The Hon’ble Authority decided that:

Para 6: “…we find that the CGPL has executed 2 contracts, one with M/s Toshiba Corporation for off-shore supply of equipments and the other with the applicant for erection of plant in execution for turnkey Mundra UMP Project. Both the contracts are independent of each other. The consideration received by M/s Toshiba Corporation is not taxable in India for the off-shore supply, while the applicant submits the consideration for taxation u/s 44BBB.”

Para 7: “The applicant’s case on the facts now disclosed squarely fits into the description given in this section. The argument on the side of the Revenue that if the contracts are an integral whole in the hands of Toshiba can be examined by it at the appropriate time. But on the facts as now disclosed by the applicant, section 44BBB of the Act would apply.”

The decision is available here.