2009 (2) TMI 1 - AAR - Income Tax

Non-resident company - long-term capital gains on sale of originally purchased shares of the Indian Company - Held that tax payable on these long-term capital gains will be 10% as per proviso to section 112(1) - Revenue s contention that proviso to S. 112(1) is not applicable to non-residents & applicant cannot avail of the lower rate of 10 % is rejected - further in computing capital gains deduction is admissible us/ 48 on account of legal expenses incurred in relation to transfer of shares

Issues Involved:
1. Tax rate applicable to long-term capital gains arising from the sale of shares by a non-resident.
2. Deductibility of legal expenses incurred in relation to the transfer of shares under Section 48 of the Income Tax Act.

Issue-Wise Detailed Analysis:

1. Tax Rate Applicable to Long-Term Capital Gains:

The applicant, a non-resident company, sought clarification on whether the tax payable on long-term capital gains from the sale of shares of an Indian company would be 10% as per the proviso to Section 112(1) of the Income Tax Act. The applicant relied on previous rulings by the Authority for Advance Rulings (AAR) in similar cases, specifically Timken France SAS, McLeod Russel India Ltd., and Burmah Castrol Plc, which supported the application of the 10% tax rate.

The Revenue contended that the lower rate of 10% under Section 112(1) was not applicable to non-residents, arguing that the second proviso to Section 48, which deals with the computation of long-term capital gains, does not apply to non-residents. The Revenue cited an order from the ITAT Mumbai Bench to support its stance and noted that previous favorable rulings for the applicant were likely to be contested before the Apex Court.

The AAR, referencing the Timken France SAS case, reiterated that the benefit of the proviso to Section 112(1) could not be denied to non-residents. The ruling emphasized that the 10% tax rate on long-term capital gains from the transfer of listed securities applies regardless of the applicability of the second proviso to Section 48. The AAR concluded that the eligibility to avail of the benefit of the indexed cost of acquisition is not a prerequisite for applying the reduced rate of 10% prescribed by Section 112(1). Therefore, the first question was answered in the affirmative, in favor of the applicant.

2. Deductibility of Legal Expenses Incurred in Relation to the Transfer of Shares:

The applicant sought to deduct legal expenses incurred in connection with the transfer of shares under Section 48(i) of the Income Tax Act. The applicant argued that these expenses were incurred wholly and exclusively in connection with the transfer and should be allowed as a deduction.

The AAR examined the provisions of Section 48, which allows for the deduction of expenditure incurred wholly and exclusively in connection with the transfer of the capital asset. The AAR noted that the legal expenses must be intrinsically linked to the transfer of shares to qualify for deduction. Legal fees for advice on transfer modalities and drafting transfer agreements would qualify, while expenses related to initial disputes and petitions before the Company Law Board (CLB) would not.

The AAR highlighted that the legal expenses must be directly related to the transfer process, such as valuation of shares or participation in settlement deliberations. However, expenses for filing petitions under Sections 397 and 398 of the Companies Act and appearances before the CLB prior to the final settlement were not allowable as they were not directly connected to the transfer of shares.

The AAR left the quantification of admissible legal expenses to the assessing officer, instructing that a reasonable amount be allowed if the applicant could not furnish detailed expenditure records. The second question was answered affirmatively, subject to the qualifications and observations noted.

Ruling:

1. The tax payable on the long-term capital gains arising to the applicant from the sale of Indian Company shares will be 10% of the amount of capital gains as per the proviso to Section 112(1) of the Act.
2. Deduction of legal expenses incurred in relation to the transfer of shares is admissible under Section 48(i) of the Act, subject to the qualifications and observations recorded in the judgment.

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