2007 (1) TMI 109 - AAR - Income Tax

Applicant, an investment company incorporated in Netherlands, invests in software products, development & carries on its operations through various subsidiaries across the globe - capital gain arising to the applicant in the course of corporate reorganization at the group level, from the proposed transfer of shares - held that no taxes need be deducted at source in this case, since the capital gains in question would not be liable to tax under the provisions of the Act read with DTAA

Issues Involved:
1. Taxability of capital gains in India under the Income-tax Act, 1961 and the Double Taxation Avoidance Agreement (DTAA) between India and the Netherlands.
2. Requirement for the transferee company to withhold tax under Section 195 of the Act.
3. Obligation of the applicant to file a return of income under Section 139 of the Act if the capital gain is not taxable in India.
4. Applicability of transfer pricing provisions under Sections 92 to 92F of the Act.

Detailed Analysis:

Issue 1: Taxability of Capital Gains in India
The applicant, a non-resident investment company incorporated in the Netherlands, proposed to transfer its entire shareholding in its Indian subsidiary (Cordys India) to another subsidiary in the Netherlands (Cordys). According to Section 9(1)(i) of the Income-tax Act, income from the transfer of a capital asset situated in India is deemed to accrue or arise in India. However, the DTAA between India and the Netherlands stipulates that capital gains from corporate reorganization transactions are taxable only in the state of the alienator's residence. Since the applicant is a resident of the Netherlands and the transaction is part of a corporate reorganization, the capital gains would be taxable in the Netherlands, not India. This interpretation aligns with the Supreme Court's ruling in U.O.I vs Azadi Bachao Andolan, which states that DTAA provisions override the Income-tax Act if they are more beneficial to the assessee.

Issue 2: Requirement to Withhold Tax under Section 195
Section 195 mandates withholding tax on payments to non-residents if the income is chargeable under the Act. However, tax at source is only required if the income is taxable in India. Previous rulings, such as the Cooper Engineering Ltd. case and the Al Nisr case, support the view that chargeability to tax is a prerequisite for withholding tax. Since the capital gains in question are not taxable in India due to the DTAA, there is no obligation for the transferee company to withhold tax under Section 195.

Issue 3: Obligation to File Return of Income under Section 139
The liability to file a return of income is contingent upon the obligation to pay tax, as per Sections 4 and 5 of the Act. Since the capital gains are not taxable in India, the applicant is not required to file a return under Section 139. This principle is supported by the ruling in Chatturam vs CIT, which states that machinery sections like Section 139 are only applicable when there is a tax liability.

Issue 4: Applicability of Transfer Pricing Provisions
Sections 92 to 92F, which deal with transfer pricing, are aimed at preventing tax avoidance through international transactions. These provisions are machinery sections and do not apply if there is no tax liability. Since the capital gains are not taxable in India, the transfer pricing provisions are not attracted in this case.

Conclusion:
1. No taxable capital gains would arise in India under the provisions of the Act read with the DTAA.
2. No tax will be required to be deducted under Section 195 of the Act.
3. The applicant will not be required to file any return under Section 139 of the Act in respect of the transaction.
4. The provisions of Sections 92 to 92F will not be attracted.

(Pronounced in the open Court of the Authority on this 31st day of January, 2007.)

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