Relaxed tax residency rules to help MNCs

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While Indian-incorporated firms (Indian companies) are taxed at 30% plus dividend distribution tax (DDT), non-resident (foreign) companies are taxed at 40% on Indian income without DDT.

Foreign companies with Indian shareholders won’t have to pay taxes here for their worldwide income unless they are managed from India on an everyday basis. If these foreign companies are managed from outside India, whether or not they are promoted by resident Indians, they will have to pay taxes in India only for the income they earn in the country.

This major relaxation is being built into the place of effective management (POEM) rules being finalised by the finance ministry, government sources told FE. The POEM concept that was included in the I-T Act early this fiscal had raised fears among many multinational companies with Indian promoters or major shareholders that New Delhi would lay claim to taxes on their incomes attributable to other geographies.

While Indian-incorporated firms (Indian companies) are taxed at 30% plus dividend distribution tax (DDT), non-resident (foreign) companies are taxed at 40% on Indian income without DDT. Although the tax rates on foreign companies are higher, the prospect of subjecting the worldwide income to taxation here could have potentially hit many MNCs with Indian stakeholders.

The proposed lenient POEM rule, analysts said, would give the likes of UK’s Jaguar Land Rover (which has the Indian parent Tata Motors) a chance to convince the Indian tax authorities that the UK firm’s commercial decisions are taken by the local management there and avoid paying taxes for the income in the UK and elsewhere in India.

Similarly, foreign subsidiaries of state-owned oil companies such as ONGC Videsh’s Imperial Energy incorporated in Cyprus and ONGC Nile Ganga doing oil exploration in Sudan, Syria and Venezuela can potentially show that their managerial and commercial decisions are ‘in substance’ made at the local level although OVL, the Indian holding company, is under the direct administrative control of the government of India. The same is true for HPCL’s Singapore subsidiary Prize Petroleum International.

“Putting a management in place is a shareholder decision, not a management decision. Promoters getting into any other role would amount to overstepping shareholder rights, going by the strict interpretation of law. The POEM as a principle must cover only management decisions,” said Rahul Garg, leader, direct tax, PwC India.

According to experts, seeking permission from an Indian parent on a decision taken by an overseas subsidiary to see if it is in line with the global policy of the parent may not ordinarily amount to the parent exercising management control, unlike the parent passing on a centrally taken decision to the foreign associate. However, where the senior management of foreign associates of Indian firms are based in India or have common board members based in India, the overseas entity may find it hard to prove that management decisions are taken from outside India. Also, foreign associates of Indian companies lacking skilled managerial personnel or do not assume business risks on its own, could have a tough time convincing the taxman in India that they are not Indian residents.

Prior to the Finance Act, 2015, a company was considered an Indian resident if its control and management were wholly in India throughout the financial year. Since some Indian companies sought to avoid resident status and taxes on their worldwide income by holding one or two board meetings outside India, the government changed the residence definition saying that any company, the ‘place of effective management’ of which is in India, would also be a resident company. Tax residence is a place from where key management and commercial decisions necessary for running the company are, in substance, made. According to experts, this OECD definition of tax residence relies on the substance of the organisation’s structure than its legal form. The government is bringing out clarifications as there is not much global guidance on the concept.

Points to note:

* Mere shareholder rights with Indians won’t result in resident status
* Only managerial decisions taken here will make foreign firms Indian residents and liable to pay tax for entire global income here
* Foreign firm has to prove management independence to avoid tax residence if board members are common with that of Indian ones.

Source: http://www.financialexpress.com/article/economy/relaxed-tax-residency-rules-to-help-mncs/156692/

 

India takes fresh guard to boost trade and economic ties

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The slowdown in China provides India another opportunity to make deep inroads into the African continent, strengthen business and economic ties.

The India-Africa summit will be a perfect setting for business communities from India and African nations to explore areas of cooperation and provide a roadmap to their governments.

Economic and trade relations between India and Africa have been on the slow track despite several Indian companies having a presence in the continent. The current trade is estimated around $75 billion. Experts say there is potential for this to go past $100 billion. But Commerce and Industry Minister Nirmala Sitharaman is cautious not to cite a number. More than 165 Indian companies invested in Africa between January 2003 and July 2015 in telecom, infrastructure, pharmaceuticals, healthcare and elsewhere.

India official says deeper cooperation in agriculture and agro-processing, engineering, textiles, leather and pharmaceuticals would have a positive impact on food security, raise health standards and create jobs in Africa and India. Food processing is a key area identified by both sides. Tourism too holds promise.

“There is clear intention that we will participate in African manufacturing and they’ll do whatever they can do to Make in India,” says Rajan Bharti Mittal, vice chairman of Bharti Enterprises.

Several African countries have high growth and are keen to engage with India.

Others would want Indian expertise in various sectors to speed up economic expansion. “There’s been growing interest in many African countries to do more business with the East and that includes India and China… Africa is opening to everybody who wants to do business,” says Zimbabwe trade minister Mike Bimha.

But there are issues to be addressed for smoother trade ties. Connectivity, banking links and security issues must be resolved. Trade experts say India needs to reorient strategy to boost ties.

“For the Africa-India trade potential to be realised, India must adopt an investment-led approach. We should support our African partners in development projects and handhold them in executing these efficiently,” says Biswajit Dhar, professor at JNU.

Ease of doing business in India – Related Party Transactions

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Related party Transactions.

As part of its ongoing efforts to improve ease of doing business in the country, the Corporate Affairs Ministry has notified changes that further relax compliance requirements.

As another major step, the Companies Amendment Act, 2015 addresses “problems faced by large stakeholders who are related parties”.

In this new amendment, it replaces “special resolution with ordinary resolution for approval of related party transactions [Section 188] by non-related shareholders”.

Besides, related party transactions between holding companies and wholly owned subsidiaries have been exempted from the requirement of approval of non-related shareholders.

As per the amendment, the requirement of passing special resolution for approving certain related party transactions has been done away with. With this, certain related party transactions can now be approved through ‘ordinary resolution’ instead of ‘special resolution’.

Further, it has also been provided that for related party transactions between a holding company and its wholly owned subsidiary, no resolutions are required to be passed if the accounts of the holding and subsidiary company are consolidated and placed before the shareholders in a general meeting for approval.

Punishment for Contravention on defaults relating to deposits

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Punishment for Contravention of Section 73 and Section 76 of Companies Act, 2013 for Acceptance of Deposits by Companies [New Section 76A inserted]

 

The Companies (Amendment) Act, 2015 has inserted a new Section 76A after Section 76 which introduces penal provisions for contravention of provisions of Section 73 and Section 76 (pertaining to acceptance of deposits by a company) or rules made thereunder, or if a company fails to repay deposits within the time specified.

As per the amended law:
A company, if it fails to repay deposits within the specified time, shall be punishable with a fine which shall not be less than Rs.1 crore but which may extend to Rs. 10 crores, in addition to the payment of the amount of deposit or part thereof and the interest due.
Every officer of the company who is in default shall be punishable with imprisonment which may extend to seven years or with a fine which shall not be less than Rs. 25 lakhs but which may extend to Rs. 2 crore, or with both.
Thus, specific punishment is prescribed for non-compliance to norms governing deposits taking activities.

India, Singapore to sign strategic partnership pact during PM’s visit

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Taking their bilateral ties to the next level, India and Singapore are expected to sign a strategic partnership pact during prime minister Narendra Modi’s visit to that country from November 23 to 25.

The broad contours of the agreement were also discussed during the fourth India-Singapore joint ministerial committee meeting held here on Tuesday. It was co-chaired by external affairs minister Sushma Swaraj and her Singaporean counterpart Vivian Balakrishnan.

The strategic partnership agreement would comprise expansion of cooperation in five main areas: Scaling up investment and trade; speeding up air and maritime connectivity; smart city development and urban rejuvenation; skills development and capacity building, and state focus on strengthening business and cultural links, according to a press release issued by the Singapore High Commission.

“The strategic partnership will come with deliverables and concrete outcomes, with focus on urban solutions, smart cities and knowledge and skill transfer,” Balakrishnan told reporters after the meeting.

Balakrishnan also highlighted the need to enhance connectivity between India and Singapore, particularly in the aviation sector.

He also highlighted Singapore’s contributions to India in the areas of smart cities and skills development.

“Both ministers agreed on the need to enhance economic cooperation, including expanding trade and investment between both countries,” the release stated.

This will be Modi’s second visit to Singapore as India’s prime minister. He last went there in September to attend the funeral of Singapore’s founding father Lee Kuan Yew.

Singapore is planning for a similar reception Modi had received in San Jose in US last month. He has also been chosen to deliver the prestigious “Singapore Lecture” during the visit.

Source: http://www.business-standard.com/article/economy-policy/india-singapore-to-sign-strategic-partnership-pact-during-pms-visit-115101300787_1.html

Vodafone gets a reprieve in Rs. 8,500-cr transfer pricing case

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The Bombay High Court on Thursday gave a favourable ruling to Vodafone in the transfer pricing case related to the sale of the company’s call-centre business to Hutchison and assignment of call options to Vodafone International.

The tax dispute, which dates back to 2007-08, arose after the tax authorities added Rs. 8,500 crore to the taxable income of the call centre unit. It had initially received a tax claim of about Rs. 3,600 crore.

While the Income-Tax Appellate Tribunal had upheld the I-T department’s claim, the High Court has accepted Vodafone’s position that the Department had no jurisdiction.

The court was of the view that there is no transfer of the ‘call options’ and, hence, the transaction does not fall within the purview of transfer pricing.

The I-T Department can challenge this order in the Supreme Court.

“We will study the order of the Bombay High Court on the Vodafone transfer pricing issue and then take a call,” Revenue Secretary Hasmukh Adhia said.

The I-T Department had issued its draft transfer-pricing order in December 2011. In 2012, Vodafone India Services moved the High Court challenging the Department’s jurisdiction.

This is the second major victory for Vodafone in tax-related cases in India. In October, the Bombay High Court had ruled that Vodafone is not liable to pay Rs. 3,200 crore in taxes in a 2009-10 transfer pricing case.

However, a verdict is still awaited in the $2.5 billion capital gains tax case, where the Department had asked Vodafone to pay tax for acquiring Hutchison’s telecom operations in India.

(This article was published in the Business Line print edition dated October 9, 2015)
http://www.thehindubusinessline.com/todays-paper/vodafone-gets-a-reprieve-in-rs-8500cr-transfer-pricing-case/article7740178.ece

STPI to sponsor over 100 start-ups for CeBIT show

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To promote domestic start-up companies, state-run Software Technology Parks of India (STPI) will sponsor over 100 such new age IT firms during the three-day CeBit India exhibition, which is scheduled to begin from October 29 in Bengaluru.

“We are collaborating with CeBit to promote start-ups. Last year, we sponsored 127 start-up companies and looking for similar number this year as well,” STPI Director General Omkar Rai told PTI.

He said that STPI has written to states for nominating best start-up companies from their territory and they will be then shortlisted by STPI.

“Start ups are not required to pay anything. STPI will spend around Rs 50 lakh… Around 10 start-ups were able to make to the show in Hannover where Prime Minister Narendra Modi had also visited,” Rai said.

Hannover Milano Fairs organised CeBit show in Germany.

Around 450 firms are expected to participate in CeBit India, which included major participation from STPI, Hannover Milano Fairs India Managing Director Mehul Lanvers-Shah said.

“We are expecting 10 per growth in CeBit India participation and even we are seeing traction from foreign companies. Last year 25 countries participated in the show. This year we have 27 with participation increasing from Taiwan, China, Germany and Canada,” Shah said.