2006 (11) TMI 91 - AT - Income Tax

Non-resident Capital gain Income from transfer of shares in Indian company are chargeable to tax subject to computation of capital gain in foreign exchange and rate of tax is 20% . The benefit of Indexation is not available

Summary

Issues Involved:
1. Applicability of the proviso to section 112 of the Income-tax Act, 1961.
2. Interpretation of the first and second provisos to section 48 of the Income-tax Act, 1961.
3. Determination of the tax rate on long-term capital gains for non-residents.

Issue-wise Detailed Analysis:

1. Applicability of the proviso to section 112 of the Income-tax Act, 1961:
The core issue is whether the proviso to section 112, which allows for a lower tax rate of 10% on long-term capital gains, applies to non-residents who compute their gains under the first proviso to section 48. The assessee argued that the proviso to section 112 should apply to all assessees, including non-residents, irrespective of whether the gains are computed under the first or second proviso to section 48. However, the Assessing Officer and the Commissioner of Income-tax (Appeals) held that the proviso to section 112 applies only to cases where the second proviso to section 48 is applicable. The Tribunal upheld this view, stating that the expression "before giving effect to the provisions of the second proviso to section 48" clearly indicates that the benefit of the proviso to section 112 is restricted to cases falling under the second proviso to section 48.

2. Interpretation of the first and second provisos to section 48 of the Income-tax Act, 1961:
The first proviso to section 48 applies to non-residents who acquire shares or debentures of an Indian company using foreign currency. It mandates that the cost of acquisition, transfer expenses, and sale consideration be converted into the same foreign currency used for the purchase, and the resultant capital gain be reconverted into Indian currency. The second proviso to section 48, on the other hand, applies to all long-term capital assets except those covered by the first proviso and allows for the use of indexed cost of acquisition and improvement. The Tribunal emphasized that the two provisos are mutually exclusive, and neither the assessee nor the Assessing Officer has the option to choose between them.

3. Determination of the tax rate on long-term capital gains for non-residents:
The Tribunal concluded that the rate of tax on long-term capital gains for non-residents, computed under the first proviso to section 48, should be 20%. This conclusion was based on the interpretation that the proviso to section 112, which allows for a 10% tax rate, does not apply to gains computed under the first proviso to section 48. The Tribunal noted that the Legislature's deliberate use of the term "second proviso to section 48" in the proviso to section 112 indicates an intent to restrict the lower tax rate benefit to cases falling under the second proviso. Consequently, the Tribunal upheld the order of the Commissioner of Income-tax (Appeals) and dismissed the assessee's appeal.

Conclusion:
The Tribunal's judgment clarifies that the benefit of the lower tax rate under the proviso to section 112 of the Income-tax Act, 1961, is not available to non-residents who compute their long-term capital gains under the first proviso to section 48. Consequently, such gains are to be taxed at the rate of 20%. The judgment emphasizes the mutual exclusivity of the first and second provisos to section 48 and the specific legislative intent behind the provisions.