2005 (3) TMI 23 - AAR - Income Tax

Non-resident holds shares of non-resident US company - under the stock purchase agreement there is no element of contingent payment, the entire consideration is to be paid by the closing date - Gains arising to the applicant from the transfer those shares are chargeable to tax under the head Capital gains - Contingent payments received/receivable by the applicant would fall within the meaning of profits in lieu of or in addition to salary under clause (3) (ii) of section 17

Summary

Issues Involved:
1. Whether the gains from the transfer of 15,000 equity shares are chargeable to capital gains tax.
2. In which assessment year does the liability to pay capital gains tax arise for the consideration received/receivable.
3. Under what head of income are the contingent payments taxable and in which year of assessment.
4. Availability of relief or concession under Double Taxation Avoidance Agreement (DTAA).

Detailed Analysis:

Issue 1: Chargeability to Capital Gains Tax
The applicant, a non-resident, transferred 15,000 shares in Vision Health Source India Pvt. Ltd. under a Share Purchase Agreement dated 15.04.2003. The consideration was divided into a fixed amount ($2.3 million) and contingent payments based on EBITDA performance. The court determined that the closing payment of $2.3 million represents the full value of the consideration for the transfer of shares and is chargeable to capital gains tax. The contingent payments, however, are not part of the consideration for the transfer of shares but are tied to performance under an employment agreement.

Issue 2: Assessment Year for Capital Gains Tax
The court ruled that the initial lumpsum payment of $2.3 million received on 01.07.2003 is the full value of the consideration for the transfer of shares and should be taxed in the assessment year 2004-05. The contingent payments, determined at the end of each subsequent year, are not considered part of the capital gains but are taxable under the head "salaries."

Issue 3: Taxability of Contingent Payments
The contingent payments are linked to the applicant's performance under an employment agreement and not to the transfer of shares. Therefore, these payments are considered as remuneration or incentives and fall under the definition of "profits in lieu of or in addition to salary" under section 17(3)(ii) of the Income-tax Act. They are taxable under the head "salaries" in the respective years they are received.

Issue 4: Relief or Concession under DTAA
The applicant did not press for a ruling on the question of relief or concession under the DTAA. Therefore, the court declined to pronounce any ruling on this issue.

Conclusion:
The gains from the transfer of 15,000 shares are chargeable to capital gains tax based on the closing payment of $2.3 million for the assessment year 2004-05. Contingent payments are taxable as salary in the respective years they are received. The court did not address the question of relief under the DTAA as it was not pressed by the applicant.