Characterisation of Income in case of Foreign Institutional Investors

     Section 2 (14) of the Act defines the term “capital asset” to include property of any kind held by an assessee, whether or not connected with his business or profession, but does not include any stock-in-trade or personal assets as provided in the definition.

     The foreign portfolio investors (referred as foreign institutional investors in the Act) face a difficulty in characterisation of their income arising from transaction in securities as to whether it is capital gain or business income. Further, the fund manager managing the funds of such investor remains outside India under the apprehension that its presence in India may have adverse tax consequences.

     Therefore, in order to end this uncertainty, it is proposed to amend the Act to provide that any security held by foreign institutional investor which has invested in such security in accordance with the regulations made under the Securities and Exchange Board of India Act, 1992 would be treated as capital asset only so that any income arising from transfer of such security by a Foreign Portfolio Investor (FPI) would be in the nature of capital gain.

     This amendment will take effect from 1st April, 2015 and will, accordingly, apply in relation to the assessment year 2015-16 and subsequent assessment years.

[Clause 3]

Capital asset characterisation: securities held by compliant foreign portfolio investors treated as capital assets, making transfers capital gains. The Bill provides that securities acquired by foreign portfolio investors in accordance with applicable securities regulations shall be treated as capital assets, so that income arising from their transfer by such investors is characterised as capital gain rather than business income; the amendment applies prospectively from the implementation date and to subsequent assessment years.