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2012 (3) TMI 264 - AAR - Income TaxCapital gains transfer buy back of shares under Section 77A of Companies Act, 1956 applicant being German company held 99.99986% in its subsidiary Indian company 0.00002% i.e. one share each held by its 6 nominees to comply with requirement of having minimum 7 members applicant contended that transfer of shares vide buy back of shares by indian company is exempted transfer u/s 47(iv) since it together with its nominee held 100% shares of company applicability of Section 115JB TDS Held that - Applicant s argument that the holding of the shares by the nominees should be treated as the holding of the shares by the applicant and the applicant must be treated to be holding 100% shares cannot be accepted in the face of the requirement u/s 49(3) of the Companies Act and the illegality that would spring from its acceptance. Therefore, word or will not be read as and in Section 47(iv). Further Section 47 overrides Section 45 but does not override Sec 46A. Therefore, proposed buyback of shares would not be exempt in view of Section 47(iv) and income is chargeable to tax in terms of Section 46A r.w.s. 48. Also, applicant is not entitled to receive the amount on buy-back of shares without any deduction of tax at source and Section 115JB has no application in this case.
Issues Involved:
1. Taxability of the transfer of shares under Section 47(iv) of the Income-tax Act. 2. Applicability of Section 115JB of the Income-tax Act to the applicant. 3. Entitlement to receive the buy-back amount without deduction of tax at source under Section 46A of the Income-tax Act. Detailed Analysis: 1. Taxability of the Transfer of Shares under Section 47(iv) of the Income-tax Act The applicant, a German company, holds 99.99986% of shares in its Indian subsidiary, with the remaining shares held by six nominee companies. The applicant contends that the proposed buy-back of shares should be exempt from tax under Section 47(iv) of the Income-tax Act. However, the Revenue argues that Section 46A, which deals specifically with buy-back of shares, overrides Section 47(iv). The Authority noted that Section 47(iv) requires a company to hold 100% of the shares in a subsidiary, either directly or through nominees, for the transfer to be exempt from tax. However, under Indian law, a public company must have at least seven members, making it impossible for a parent company to hold 100% of the shares legally. Thus, the applicant's argument that it holds 100% shares through nominees is not tenable. The Authority further emphasized that Section 46A, introduced to specifically address buy-back transactions, prevails over the general provisions of Section 45. Section 46A deems the difference between the cost of acquisition and the buy-back consideration as capital gains, thus making the gains taxable. 2. Applicability of Section 115JB of the Income-tax Act to the Applicant The applicant contends that Section 115JB, which pertains to Minimum Alternate Tax (MAT), applies only to domestic companies and not to foreign companies without a Permanent Establishment (PE) in India. The Revenue did not contest this point. The Authority agreed with the applicant, noting that Section 115JB, when read with the definition of a company in the Act, does not apply to foreign companies. Consequently, the Authority ruled that Section 115JB has no application in this case. 3. Entitlement to Receive the Buy-back Amount Without Deduction of Tax at Source under Section 46A of the Income-tax Act Given the ruling that the gains from the buy-back are taxable under Section 46A, the applicant is not entitled to receive the buy-back amount without deduction of tax at source. Section 46A mandates that the difference between the cost of acquisition and the buy-back consideration be treated as capital gains, and thus, the tax must be deducted at source. Conclusion 1. The proposed buy-back of shares is not exempt from tax under Section 47(iv) of the Income-tax Act. 2. Section 115JB does not apply to the applicant, a foreign company without a PE in India. 3. The applicant is not entitled to receive the buy-back amount without deduction of tax at source, as the gains are taxable under Section 46A of the Income-tax Act. The ruling was pronounced on the 27th day of February, 2012.
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