2016 (2) TMI 495 - AT - Income Tax

Capital gain arising on transfer of shares taxable in India - whether the exception given in Article 13(5) of the India Netherland DTAA is not applicable to the said transaction - Held that - Two different activities have been combined with the scheme of arrangement. The first one was to buy back shares belonging to non-resident share holders and the second one was to cancel the shares so purchased. We agree with the view taken by Ld CIT(A) that they are two different actions and both should not be clubbed together, even though M/s Century Enka Ltd has combined the same, for the sake of its convenience, in the scheme of arrangement. The assessee herein, in our view, should in no way concerned by the action of cancellation of share resulting in reduction of share capital. Accordingly, we are of the view that the attempt of the assessee to bring the transferring of shares within the ambit of the term reorganisation may not be correct, since the object of the arrangement was not financial restructuring, but to provide an exit route to the non-resident shareholders. In view of the above, we are of the view that the Ld CIT(A) was justified in upholding the view taken by the AO on this issue. Accordingly we uphold his order on this issue. - Decided against assessee Entitlement to concessional rate of tax provided in the second proviso to sec. 112 - Held that - The only contested in the appeal filed by the revenue relates to the rate at which the capital gains is taxable. The Ld A.R submitted that this issue is covered in favour of the assessee by the decision rendered by Hon‟ble Delhi High Court in the case of Cairn U.K. Holdings Ltd (2013 (10) TMI 430 - DELHI HIGH COURT ), which was followed by the co-ordinate bench of Tribunal in the case of ADIT Vs. Abbott Capital India Ltd ( 2014 (5) TMI 316 - ITAT MUMBAI ). Hence, we are of the view that the Ld CIT(A) was justified in holding that the assessee is entitled to concessional rate of tax @ 10% on the impugned Capital gains.- Decided against revenue

Summary

Issues Involved:
1. Taxability of capital gains arising from the transfer of shares under the India-Netherlands DTAA.
2. Applicability of the concessional tax rate under the second proviso to Section 112 of the Income Tax Act.

Detailed Analysis:

1. Taxability of Capital Gains:
The primary issue revolves around whether the capital gains from the transfer of shares by the assessee, a resident of the Netherlands, to M/s Century Enka Ltd, an Indian company, are taxable in India under Article 13(5) of the India-Netherlands DTAA. The assessee contended that the capital gains should be exempt in India based on the DTAA, arguing that the transfer falls under the category of "reorganization" as specified in the treaty.

The tax authorities, including the Assessing Officer (AO) and the Commissioner of Income Tax (Appeals) [CIT(A)], held that the capital gains are taxable in India. They interpreted the DTAA to mean that gains from the alienation of shares forming part of at least 10% interest in the capital stock of a company may be taxed in the state where the company is resident if the alienation is to a resident of that state. The authorities also noted that the capital gains were not taxed in the Netherlands, thereby preventing double non-taxation, which is against the purpose of the DTAA.

The CIT(A) upheld the AO's decision, emphasizing that the transaction did not qualify as a "reorganization" as per the treaty. The CIT(A) observed that the buy-back scheme was primarily to provide an exit route for non-resident shareholders and not a financial restructuring or reorganization. The CIT(A) also referenced the landmark Supreme Court case of McDowell & Co. v. CTO, which held that tax planning should not involve colorable devices to avoid tax.

The Tribunal agreed with the CIT(A) and AO, concluding that the transfer of shares did not fall under the definition of "reorganization" as per the DTAA. The Tribunal noted that the scheme's objective was not financial restructuring but rather to facilitate the exit of non-resident shareholders. Therefore, the capital gains were deemed taxable in India.

2. Applicability of Concessional Tax Rate:
The second issue concerned the rate at which the capital gains should be taxed. The AO had levied tax at 20%, rejecting the applicability of the concessional rate of 10% under the second proviso to Section 112 of the Income Tax Act. However, the CIT(A) ruled in favor of the assessee, allowing the concessional tax rate.

The Tribunal upheld the CIT(A)'s decision, referencing the Delhi High Court's ruling in the case of Cairn U.K. Holdings Ltd and the Mumbai Tribunal's decision in ADIT Vs. Abbott Capital India Ltd. These precedents supported the application of the concessional tax rate of 10% on the capital gains.

Conclusion:
The Tribunal dismissed both the assessee's appeal regarding the taxability of capital gains and the revenue's appeal concerning the tax rate. The capital gains from the transfer of shares were held to be taxable in India, and the assessee was entitled to the concessional tax rate of 10%. The judgment was pronounced on 13.01.2016.