1995 (12) TMI 394 - AAR - Income Tax

Summary

Issues Involved:
1. Determination of tax residency status under the Double Taxation Avoidance Agreement (DTAA) between India and Mauritius.
2. Tax implications on dividends received from an Indian bank.
3. Tax implications on capital gains from the alienation of shares in the Indian bank.
4. Potential tax avoidance considerations under clause (c) of the second proviso to section 245R(2) of the Income-tax Act, 1961.

Summary:

1. Tax Residency Status under DTAA:
The applicants, companies incorporated in Mauritius, sought to invoke benefits u/s 245Q(1) of the Income-tax Act, 1961, under the DTAA between India and Mauritius. The Authority examined Article 4 of the DTAA, which defines "resident of a Contracting State." Despite the applicants' argument that their tax liability in India arises only from income earned in India, the Authority concluded that the applicants are residents of both India and Mauritius. However, under paragraph 3 of Article 4, the companies are to be considered residents of Mauritius since their place of effective management is situated there.

2. Tax on Dividends:
The applicants sought confirmation that dividends received from the Indian bank would be subject to a withholding tax not exceeding 5% of the gross amount, as per Article 10 of the DTAA. The Authority noted that while the applicants are the direct shareholders, the beneficial ownership of the shares might lie with the British bank, their sole shareholder. The Authority suggested that the dividends might be taxed at 15% instead of 5%, as the applicants might not be the beneficial owners of the shares.

3. Tax on Capital Gains:
Regarding capital gains from the alienation of shares, the Authority referred to Article 13 of the DTAA, which states that such gains should be taxable only in Mauritius and not in India. Thus, the applicants would not be liable to pay capital gains tax in India.

4. Tax Avoidance Considerations:
The Authority considered whether the applications should be rejected under clause (c) of the second proviso to section 245R(2) of the Act, which pertains to transactions designed for tax avoidance. The timing of the incorporation of the applicant companies and their investments suggested that the purpose of holding shares through Mauritius-based companies was to avoid higher taxes that would apply if the British bank had invested directly. The Authority concluded that the applications were designed, prima facie, for the avoidance of tax and thus rejected the applications under clause (c) of the proviso to section 245R(2).

Conclusion:
The applications were rejected on the grounds of being designed for tax avoidance, as per clause (c) of the proviso to section 245R(2) of the Income-tax Act, 1961.