2008 (2) TMI 24 - AAR - Income Tax

Non-resident company wins tax ruling on capital gains from share sale to Indian company

The Authority ruled in favor of the applicant, a non-resident company, confirming a 10% tax rate on long-term capital gains from the sale of shares to a ... Purchase of shares (including bonus shares) by Indian Company from a non-resident company - Indian company can apply for ruling regarding tax liability of non-resident co. on its capital gains - Taxability of Long Term Capital Gain – tax rate u/s 112 is 10% non only for original shares but also applicable for bonus shares - purchase price paid in indian currency does not effect the position Issues:- Determination of tax liability of a non-resident company on the sale of shares to a resident Indian company.- Applicability of tax rates on long-term capital gains on originally acquired and bonus shares.- Interpretation of Section 112(1) and Section 48 of the Income-tax Act, 1961.Analysis:1. Tax Liability of Non-Resident on Sale of Shares:The applicant sought an advance ruling on the tax liability of a non-resident company, Moron Holdings PLC, UK, on the sale of shares to the applicant, a resident Indian company. The Authority held that the tax payable on long-term capital gains arising from the sale of both originally acquired and bonus shares of Moron Tea Company (India) Ltd. will be 10% in accordance with the proviso to Section 112(1) of the Income-tax Act, 1961. The ruling was based on the precedent set in the case of TIMKEN FRANCE SAS, emphasizing that the reduced rate of 10% applies to non-residents as well.2. Applicability of Tax Rates on Different Categories of Shares:The applicant raised questions regarding the tax payable on long-term capital gains on originally acquired and bonus shares, and whether Section 48 of the Act should be considered in the computation. The Authority clarified that the tax liability for both types of shares would be 10% under the proviso to Section 112(1), without the need to apply the second proviso to Section 48. The ruling highlighted that the special provision in Section 112(1) applies to all categories of assesses, including non-residents, and the reduced rate is not limited to specific resident assesses.3. Interpretation of Section 112(1) and Section 48:The Authority analyzed the contentions presented by the applicant and the revenue regarding the interpretation of Section 112(1) and Section 48. It was noted that the revenue's argument, advocating a 20% tax rate for non-residents, was contrary to the ruling in the TIMKEN FRANCE case. The Authority emphasized that the benefit of the reduced tax rate should not be denied to non-residents, even if they do not qualify for other reliefs under Section 48. The ruling underscored that the eligibility for indexation benefits is not a prerequisite for applying the 10% rate specified in the proviso to Section 112(1).In conclusion, the Authority's ruling favored the applicant, confirming the 10% tax rate on long-term capital gains for the non-resident company on the sale of shares, including both originally acquired and bonus shares. The decision was based on the interpretation of relevant provisions in the Income-tax Act, 1961, and aligned with previous authoritative judgments on similar matters.