2009 (4) TMI 18 - AAR - Income Tax

Can a partnership firm formed between the applicant and an entity in Canada be granted status of firm if it satisfies conditions u/s 184 Held, yes - tax liability of the partnership in India, shall be @ 30 per cent plus applicable surcharge and cess in accordance with Finance Act residential status of the firm is a question of fact, which can be determined by the AO at the relevant point of time - share of the partners in firm shall not be included in the total income of such partners

Issues Involved:
1. Status of a partnership firm for taxation purposes under the Income-tax Act, 1961.
2. Application of tax rates for the partnership firm.
3. Determination of the residential status of the partnership firm.
4. Exemption of partners' share in post-tax profits.
5. Applicability of section 45(3) related to capital gains computation.
6. Qualification of the partnership and the transaction as 'associated enterprises' and 'international transaction' under transfer pricing provisions.
7. Conflict between transfer pricing provisions and Article 24 of the DTAA between India and Canada.

Issue-wise Detailed Analysis:

1. Status of a Partnership Firm for Taxation Purposes:
The applicant, a foreign company registered in Canada, sought to restructure its business in India by transferring its participating interest in an oil block to a partnership firm to be formed in Canada. The ruling determined that the proposed partnership firm can be granted the status of a 'firm' for taxation purposes under the Income-tax Act, 1961, provided it satisfies the conditions listed under section 184 of the Act. The partnership firm would be assessed as a separate taxable entity if the requirements of section 184, such as the partnership being evidenced by an instrument and the individual shares of the partners being specified, are met.

2. Application of Tax Rates for the Partnership Firm:
The ruling confirmed that if the partnership firm is assessed as a firm under the Act, it would be liable to tax at the rate prescribed for a 'firm,' which is 30 percent plus applicable surcharge and cess, as per paragraph (c) of the First Schedule of the Finance Act, 2008. The Act does not differentiate between resident and non-resident partnership firms in terms of tax rates.

3. Determination of the Residential Status of the Partnership Firm:
The residential status of the partnership firm under the Act would be determined based on whether the control and management of its affairs are situated wholly outside India. This is a question of fact that can be determined by the assessing officer at the relevant point of time. The ruling noted that the residential status is not relevant for the tax rate applicable to the firm, as the rate remains the same for both resident and non-resident firms.

4. Exemption of Partners' Share in Post-Tax Profits:
If the proposed partnership is assessed as a firm, the share of the partners in the total income of the firm shall not be included in the total income of such partners. This is in accordance with section 10(2A) of the Act, which provides for the exemption of partners' share in the post-tax profits of a partnership firm.

5. Applicability of Section 45(3) Related to Capital Gains Computation:
The ruling addressed the issue of whether the provisions of section 45(3), which relate to the computation of capital gains when a capital asset is transferred by a partner to the partnership firm as capital contribution, would apply to the transfer of participating interest in the Amguri block. The ruling concluded that the proposed transfer would be regarded as an international transaction between two associated enterprises, and the resulting capital gains should be assessed in accordance with the transfer pricing provisions contained in Chapter X of the Act. The provisions of section 45(3) would not prevail over the transfer pricing provisions in this case.

6. Qualification of the Partnership and the Transaction as 'Associated Enterprises' and 'International Transaction':
The proposed partnership and the transaction between the applicant and the partnership firm would qualify as 'associated enterprises' and the transaction would qualify as an 'international transaction' under the transfer pricing provisions of Chapter X of the Act. The ruling emphasized that the transfer pricing provisions apply to all kinds of international transactions entered into between associated persons, regardless of their nature.

7. Conflict Between Transfer Pricing Provisions and Article 24 of the DTAA:
The ruling addressed the applicant's contention that applying transfer pricing provisions would conflict with Article 24 (non-discrimination clause) of the DTAA between India and Canada. The ruling concluded that Article 24 does not come to the aid of the applicant. The transfer pricing provisions relate to international transactions between associated enterprises and do not discriminate based on nationality. The plea of discrimination raised by the applicant was found to have no basis.

Conclusion:
The ruling provided a comprehensive analysis of the issues involved and concluded that the proposed partnership firm can be assessed as a firm under the Income-tax Act, 1961, provided it meets the requirements of section 184. The firm would be liable to tax at the prescribed rate, and the partners' share in post-tax profits would be exempt. The transfer of participating interest would be regarded as an international transaction subject to transfer pricing provisions, and Article 24 of the DTAA does not provide relief to the applicant. The ruling was pronounced on April 23, 2009.

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