Under Section 9 of the Income-tax Act, 1961 (the Act), income arising from indirect transfer of assets situated in India is deemed to accrue or arise in India. The provisions of Section 9(1)(i) of the Act provides that if any share of or interest in, a foreign company or entity derives its value substantially from the assets located in India, then such share or interest is deemed to be situated in India. Thereby, any income arising from transfer of such share or interest is deemed to accrue or arise in India.

The share or interest is said to derive it value substantially from assets located in India, if fair market value (FMV) of assets located in India comprise at least 50% of the FMV of total assets of the company or entity. The computation of FMV of Indian and global assets is to be in the prescribed manner.

Further, Section 285A of the Act mandates reporting requirement on the Indian concern through or in which the foreign company or entity holds the assets in India. The information to be furnished and its manner is also required to be prescribed.

In this regard, draft rules and forms to be incorporated in the Income-tax Rules, 1962 have been formulated and uploaded on the Finance Ministry’s website (www.finmin.nic.in) and website of the Income-tax Department (www.incometaxindia.gov.in) for comments from stakeholders and general public.

The comments and suggestion on the draft rules may be sent by 29th May, 2016 electronically at the email address, [email protected].

Draft Rules

Indirect transfer taxation: rules for determining fair market value and reporting by Indian concern invited for comment. Income from transfer of a foreign company or entity's share or interest is deemed to accrue in India where that interest derives its value substantially from assets located in India; valuation requires computing fair market value of Indian and global assets under prescribed rules, applying a threshold that Indian asset FMV comprises at least half of total asset FMV. Separately, the Indian concern through which the foreign entity holds assets must comply with prescribed reporting requirements; draft rules and forms have been published for public comment.