While the classification of gains arising from a sale of shares has previously been litigated, the Bombay High Court recently dealt with the issue of whether gains arising from such a sale by a private trust would be taxable as capital gains or business income. The ruling examines not only the treatment of shares, but also the use of sales proceeds to conclusively adjudicate on the intentions behind the sale.
The Mumbai Tax Tribunal recently considered whether the conversion of a company into a limited liability partnership could be considered a transfer even though it had failed to meet all of the conditions set out in Section 47(xiiib) of the Income Tax Act. In another case, the tribunal referred to a Delhi High Court ruling and stated that preference shares are part of a company's share capital and cannot be considered a loan.
Recent changes to direct tax-related policies and procedures include the newly reinstated task force – which was reconstituted in order to review the Income Tax Act and draft a new direct tax law. It is scheduled to submit its report to the government by the end of February 2019. Further, the Indian government has signed a protocol with the Chinese government, amending the India-China tax treaty. The protocol incorporates changes pursuant to Base Erosion and Profit Shifting Action Plan reports.
A recent advanced ruling examined the applicability of goods and services tax (GST) to back-office support services provided by an Indian company to a foreign client. The Advance Ruling Authority held that the back-office support services in question should be treated as intermediary services, which are not eligible to be exempt from the GST applicable to an export of services since, as per GST law, intermediary services provided by Indian companies are treated as services supplied in India.
The Advance Ruling Authority (ARA) was constituted under Indian goods and services tax law and entrusted with the responsibility of answering questions regarding the applicability of tax, the admissibility of input tax credit, the classification of goods and services and the eligibility to receive the exemption. While an ARA ruling is binding only on the taxpayer that raises the question, it carries persuasive value in identical situations.
There have been several recent cases regarding transfer pricing. For example, the tax tribunal found that a taxpayer was not a contract manufacturer, as sales and purchases from an associated enterprise had been negligible. In another case, the tax tribunal ruled that high turnover is a relevant criterion for accepting or rejecting a comparable. Further, a high court found that final assessment orders cannot be passed without a draft assessment order.
The Supreme Court recently pronounced a landmark judgment on the question of taxpayers' eligibility to receive tax exemptions when more than one interpretation is possible – namely, one in favour of the taxpayer and the other in favour of the tax authority. The court concluded that where a tax exemption must be interpreted, the tax authority will be given the benefit of the doubt, unlike in the case of ambiguity in the charging section of a particular statute. This judgment has completely unsettled the earlier dicta.
Alongside new guidance from the Central Board of Taxes regarding securities transaction tax, potential legislative amendments may be introduced regarding interest income on rupee denominated bonds. Further, the Chennai Tax Tribunal recently considered whether a tax officer had been correct in invoking Section 56(2)(viib) of the Income Tax Act, citing an unrealistic premium, in a case where a company had issued shares to one of its shareholders at a premium.
A number of new circulars, notifications and press releases have been issued in recent months. Among other things, they introduce new valuation rules for the conversion or treatment of inventory as capital assets, grant taxpayers immunity from the penalty for under-reporting income and clarify the deductions available for free trade zone undertakings.