AI Drafter 
TaxTMI 
TaxTMI 
2021 (7) TMI 1018
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....obal re-insurer and provides re-insurance services to various insurance companies, including, Indian insurance companies through its branches across the globe. Assessee's branch at Singapore provides re-insurance services to various Indian insurance companies. As observed by the assessing officer, the assessee has a wholly owned subsidiary in India named as Swiss Reinsurance Services Pvt Ltd (SRSIPL). Assessee has entered into an agreement with SRSIPL on 01-04-2009 for availing certain services from the Indian subsidiary, the details of which are enumerated in the agreement. As per the terms of the agreement, for rendering services, the Indian subsidiary is remunerated at cost (+) mark-up of 12%. In course of assessment proceedings, the assessing officer, on verifying materials on record, noticed that during the year under consideration the assessee had received insurance premia aggregating to the tune of Rs. 1639,97,85,017/- from Indian insurers. Noticing this, the assessing officer called upon the assessee to explain why the aforesaid amount received from re-insurance business in India should not be brought to tax in India. In response, it was submitted by the assessee that since....
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....to tax in India in terms of India-Switzerland DTAA. As we find, identical issue came up for consideration for the first time before the Tribunal in assessee's own case in assessment year 2010-11. While deciding the issue in ITA No.1667/Mum/2014 dated 13-02-2015, the Tribunal, after analyzing the service agreement between assessee and SRSIPL and all other relevant facts, concluded that neither the assessee has any business connection in India as per Explanation 2 to section 9(1) of the Act nor does it have any PE in India. The Tribunal, in very clear terms held that SRSIPL cannot be considered as a service/dependent agent PE of the assessee. The same view was reiterated by the Tribunal while deciding appeals for assessment years 2011-12 and 2012013 vide ITA Nos 1350 & 1351/Mum/2016 dated 223-01-2018, for assessment year 2013-14 vide ITA No.2759/Mum/2017 dated 04-07-2017 and for assessment year 2015-16 in ITA No.4898/Mum/2018 dated 26-12-2018. Thus, from the facts discussed above it is amply clear that the issue, whether SRSIPL can be considered as a PE of the assessee in India has arisen time and again before the Tribunal and the Tribunal has consistently decided in favour of the as....
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.... also explained the reasons for disposing of the shares at a lesser value. Further, the assessee also furnished valuation report of the shares both, under net asset value and capitalization of earning method, as per which the value of shares were arrived at Rs. 14.36 per share and Rs. 13.82 per share respectively. Additionally, the assessee also furnished a valuation report under DCF method valuing the share at (-) Rs. 363/-. After examining the factual details, the assessing officer noticed that despite the fact that TTK was incurring cash loss in financial years 2008-09 and 2009-10, the assessee went ahead in buying shares with heavy premium. Further, he observed, when the assessee was called upon to value the shares of TTK as per rule 11UA, the assessee submitted that Rule 11UA prescribes the methodology for determining the fair market value of unquoted shares of a company for the purpose of section 56(2)(viia) and (viib) of the Act. Further, the assessee submitted, both section 56((2)(viia) and rule 11UA are attracted to the recipient of shares where there is an inadequate consideration paid by such recipient on purchase of shares. Therefore, it was submitted, since the assesse....
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....oming the loss, the assessee has to make investment by subscribing to shares at a premium. He submitted, it is a prudent commercial decision of the assessee to revive a loss making company, wherein, the assessee had stake. Drawing our attention to page 248 of the paper book, the he submitted, on 01-11-2011, IRDA had raised a query by asking TTK to justify the payment of unduly high premium by the assessee for buying the shares, whereas, during the same period shares were issued at par to the Indian promoter. He submitted, in response to the query raised by the IRDA, TTK had furnished its reply justifying subscription of shares at high premium by the assessee. The learned counsel submitted, assessee had to subscribe to shares of TTK to keep the company going. 11. Countering various allegations of the assessing officer, learned senior counsel submitted, various allegations made by the assessing officer are without any basis. He submitted, when the events of acquisition and sale of shares have not been doubted and is factually proved, the loss arising from such transaction cannot be treated as artificial loss, as it has to be computed in terms of section 48 and other provisions of ....
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....iled to produce Shri Girish Rao before the departmental authority. * During 2013-14, when the shares of TTK were sold at Rs. 5, the company boasted its second highest reserve/surplus from financial year 2009-10 onwards. * It is seen from record that in assessment year 2016-17, the assessee has set off the long term capital loss of Rs. 49.92 crores against the capital gain of Rs. 107.12 crores. Thus the assessing officer correctly observed that the loss was artificially created for setting off against future gain. * The very fact that the assessee had purchased shares at huge premium, whereas, the shares were sold at part value to other shareholders and subsequent sale of shares by the assessee sold at a substantially low value of Rs. 5 per share, does not reflect natural behaviour of a prudent businessman. 13. In support of his contention, he relied upon the decision of ITAT, Delhi Bench in case of Heresh W. Chadha L/H of late W. N. Chadha vs DCIT (2011) 43 SOT 544(Del). Further, relying upon the decision of Vodafone International Holdings B.V. vs UOI (2012) 341 ITR 1 (SC) and applying the test/ratio laid down therein to ascertain whether the transacti....
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....r share to an Indian entity. In the process, assessee has incurred long term capital loss. The assessing officer, alleging that the loss so claimed by the assessee has been artificially created, has disallowed the same. The reasoning of the assessing officer for doing so, broadly, is as under:- "Summary of Sequence of eventsf narrated above): 1. Swiss Re invested in TTK at a premium throughout FY 2007,FY 2008 and FY 2009. 2. Berkshire Hathaway provided funds to help the Swiss reinsurer bounce back after it announced losses in 2008 and 2009. 3. In January 2010, the Berkshire Hathaway and Swiss Re agreed to a retrocession transaction, under which Berkshire Hathaway took on a portfolio of Swiss Re's annually renewable life insurance policies, limiting Swiss Re's exposure to claims. 4. In 2010, Swiss Re invested in TTK in two major tranches at a huge premium of Rs. 4703.71 and Rs. 5131.05. 5. TTK continued to allot the same shares which it allotted to Swiss Re at a premium, to its other shareholders at par value, ie, Rs. 10 6. Swiss re continued to buy shares of TTK in FY 201 0-1 1 at huge premiums of Rs. 4703 and R....
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.... 17. From the records it is seen that in AY 2016-17, the assessee has utilized this loss of Rs. 49.92 crores to be set off against the capital gains of Rs. 107.12 crores arising out of an internal corporate restructuring of the assessee itself. Thus the entire transaction in sum and substance is a colourful device a. To inflate the cost of the shares of TTK and then selling them at below par value to accommodate Hathaway Berkshire's interests through Cigna as part of its deal outside India. b. To cause windfall gains to IvlK Girish'Rao c. Use the current year loss to set off.the capital gains arising In future years of the assessee itself and hence lower its own tax liability in the future years." 16. It is a fact that assessee had challenged the disallowance of long term capital loss before learned DRP and in course of proceedings before learned DRP, the assessee had contested each of the aforesaid reasoning of the assessing officer with counter arguments supported by evidence. However, learned DRP has endorsed the decision of the assessing officer, more or less, accepting the reasoning of the assessing officer. Now, the sole ....
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....ess than the price at which the offer on right basis is made to the resident shareholder. Since shares to resident shareholders is issued at par, the assessee bought the shares at a premium. Further, as per FEMA regulations the price of unlisted shares issued to a foreign company should not be less than the valuation of shares done by a chartered accountant as per DCF method. Complying with the aforesaid regulation, shares of TTK were issued to the assessee at a price not less than the fair market value as per the valuation report. As regards the decision of investing in shares at a high premium, it is a commercial decision of the assessee and is not in violation of any rules or regulations including FEMA regulations. It is observed from the facts and materials on record, the assessing officer, while coming to his conclusion has not properly appreciated the facts on record and has based his conclusion on either half-baked facts or purely on presumption and surmises. The submissions of the assessee that since TTK during the financial years 2008-09 and 2009-10 was facing financial hardship and to help TTK tide over the hardship the assessee had infused the additional capital by su....
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....f capital gain arising in assessment year 2016-17. Therefore, the allegations based on which the assessing officer has denied the claim of long term capital loss are either presumptive or irrelevant and without any basis. Simple facts are, the assessee had purchased a capital asset by way of shares and after holding it for certain period, has sold it in the impugned assessment year at a loss. The fact that the shares sold by the assessee are long term capital asset is not disputed. Therefore, once the assessee had sold its long term capital asset, the computational provisions contained in section 48 and 49 of the Act would automatically get triggered and the gain/loss arising out of such transaction has to be computed in terms of sections 48 and 49 of the Act. 21. In the facts of the present case, undisputedly, after applying the computational provisions of sections 48 and 49 of the Act to the sale transaction of shares of TTK, long term capital loss arises. Therefore, the assessee is entitled to claim such long term capital loss. As regards the allegation of the assessing officer that assessee had not valued the shares under rule 11UA, we fully agree with the submissions of ....