India Inc seeks leeway on capital gains tax proposal

Industry players write to CBDT seeking exclusion of inter-se transfers, other transactions

India Inc has sought exemptions and more clarity on the government’s proposal to levy capital gains tax on shares acquired through non-payment of the securities transaction tax (STT).

Sources said the Central Board of Direct Taxes (CBDT) had received over a dozen recommendations from shareholders seeking widening of the negative list proposed in the draft notification.

The CBDT earlier this month proposed only three scenarios under which capital gains tax would be levied. However, one of the conditions, that listed shares not purchased from stock exchanges would be liable for tax, has created confusion among market players.

Inter-se promoters’ transfer among group entities; direct allotment of shares such as qualified institutional placement; acquisition of shares by conversion of a debenture or loan; and acquisition of shares through gifts are some of the transactions that industry players have asked the CBDT to exclude from the new tax proposal.

“We have received an exhaustive list from various participants, we will come out with a final notification shortly,” said a CBDT official.

The CBDT had sought stakeholders’ comments by April 11 on its draft proposal. The tax authority is analysing the feedback and is expected to issue a final notification early next month.

Experts said transfers made to family trusts, in a majority of the cases, were part of an inheritance plan and the shares received were not a consideration but an obligation to safeguard the assets and pass them on to end-beneficiaries. Such transactions needed to be kept out of the purview of the amendment, they said.

“It is important that the government makes it clear that any inter-se promoter transfers will continue to qualify for the exemption, in order to remove any ambiguity that could arise, especially under clause (b) of the draft notification,” said Pranav Sayta, partner, EY.

Experts said taxing share transfers within promoter groups would not curb the practice of declaring unaccounted income as exempted long-term capital gains by entering into sham transactions.

Further, industry players also asked the tax authorities to clarify the clause related to share purchases under employee stock options. According to them, shares allotted to employees are genuine transactions through formal schemes framed by companies that are recorded in the books of accounts. “This aspect of the draft is ambiguous and could attract litigation,” said Sanjay Sanghvi, partner, Khaitan & Co.

“Any acquisition (although not on the stock exchange through payment of STT) of shares (whether before or after listing) by an entity

TRANSACTIONS FOR WHICH INDUSTRY WANTS EXEMPTIONS

• Inter-se transfers within promoters entities
• Direct subscription via QIP, M&A, preferential allotment other than given scenarios
• Acquisition of shares approved by regulatory authority
• Share allocated to employees under Esops

CBDT NOTIFIES THREE SCENARIOS WHERE CAPITAL GAINS TAX WILL BE LEVIED

• Transactions of illiquid stock made through preferential issues
• Stock purchase after delisting and before re-listing will be liable to tax
• Transfer not routed through a recognised stock exchanges
• However, the draft has not clarified tax on off-market transactions
• Finance Bill, 2018, proposes to levy capital gains tax on all transactions where STT was not paid since 2004
• Aims to curb "sham transactions" in stock market

which is part of the promoter group, including under or by way of subscription/allotment, purchase, gift, inheritance, restructuring should be included within the purview of the notification so as to ensure that the capital gains tax exemption is not denied to  such genuine cases, especially given the intent and purpose of the present amendment,” added Sayta.

Business Standard New-Delhi,19th April 2017