Draft tax rule for avoiding Vodafone-type cases

The income tax (I-T) department has issued a proposed set of rules for computation of the 'fair market value' of assets for taxing any indirect transfer of assets abroad, to avoid Vodafone-type tax disputes in the future.

This comes almost a year after finance minister Arun Jaitley had clarified in the 2015-16 budget that indirect transfer abroad between two companies would draw tax if the value of Indian assets of the company concerned on the specified date exceeded Rs 10 crore and these represented at least 50 per cent of the value of all the assets owned by such a foreign company globally.

The budget provision had improved on the arbitrariness in the much-contested retrospective amendment to the I-T Act. Which had said the indirect transfers abroad would be liable to tax in India if the transfer derived value "substantially" from assets located in the country. The rules put out for stakeholder consultation on Monday give out the method of valuation of shares to compute the 'fair market value' of the assets. The government has sought comments on the rules and forms by this Sunday.

According to the official note, if the asset is the share of an Indian company listed on a recognised stock exchange, the fair market value of the share will be the price of such a share on the exchange. When the share is listed on more than one recognised exchange, the price on the bourse recording the highest volume of trading will be considered.

Where the asset is the share of an Indian company not listed on a recognised exchange on the specified date, the fair market value will the one determined by a merchant banker or an accountant 'in accordance with any internationally accepted pricing methodology for valuation of shares on arm's length basis and increased by the liability, if any, considered in such determination'.

If the assets are other than shares, then also the fair market value will be determined by the price it would fetch in the open market on a specified date determined by merchant bankers or accountants concerned.

Vipul Jhaveri, partner, Deloitte Haskins & Sells, said, "These rules essentially rely on fair valuation at an arm's length basis, conducted by a chartered accountant or merchant banker, and do not adopt the 'net asset value' principle which is applied in some situations under the I-T rules."

In the Vodafone dispute, Vodafone International Holdings BV, a Dutch company, bought 67 per cent stake in an Indian company, Hutchinson Essar (HEL), by buying 100 per cent stake in CGP (Holdings), a Cayman Islands company, in 2007. CGP, a subsidiary of Hutchinson Telecommunic-ations International, owned the Indian assets of HEL through a complicated network of intermediate entities. Vodafone did not pay tax to Indian authorities as it was an offshore deal. However, the latter said it was liable to be taxed in India since it involved indirect transfer of Indian assets.

After losing the case in the Supreme Court, the government had introduced indirect transfer levy with retrospective effect from April 1962, in 2012. After much criticism, the government had constituted a committee to look into any new case arising out of retrospective amendments of taxation. The Vodafone and Cairn cases are pending in arbitration.

CLEARING THE AIR

Budget 2015-16 says indirect transfer overseas would be taxable in India if Indian assets are more than Rs 10 crore and represent at least 50% of the value of all global assets owned by the company concerned
The much-criticised retrospective amendment to the Income Tax Act had made these transfers taxable in India if transfer derives substantial value from Indian assets
CBDT on Monday comes out with rules to measure fair market value of shares and assets
Provisions made in the Finance Act, 2015, are prospective

Business Standard New Delhi,24th May 2016

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