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Foreign investors' MAT woes not over just yet

Debt interest income, old cases may be still under scrutiny

Sachin P Mampatta & Dev Chatterjee  |  Mumbai 

(FPIs) are not entirely free of the (MAT) regime, despite Finance Minister Arun Jaitley saying in his speech that the tax will not be levied on foreign investors.

The way the exemption has been worded in the removes the ambiguity around capital gains but treatment of interest income will still be a cause for concern, besides a possibly higher compliance burden. Tax experts also say the new Bill, which comes into force from next financial year, has raised a question mark on all old cases where tax demand has already been made.
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The provision was introduced to make sure the large companies that did not pay taxes due to various tax incentives could be brought under the revenue department’s net. But the tax department had sought to impose the same rule on (formerly referred to as foreign institutional investors, or FIIs) and foreign private equity firms structured as corporate entities. The move was seen affecting a large section of foreign investors. Representations on the matter were made to the government.

“To rationalise the provisions for FIIs, profits corresponding to their income from capital gains on transactions in securities that are liable to tax at a lower rate shall not be subject to MAT,” said Jaitley in his speech. But these words leave the status of debt investors uncertain.

“Restricting the amendment only to capital gains will imply is applicable to all other cases. receiving interest income on government securities and corporate bonds are currently taxed at only five per cent. will increase the rate of tax on such interest to 20 per cent,” says Suresh Swamy, partner (financial Services), PwC Tax and Regulatory Services.

Also, the amendment appears to exempt from levy only the income in the form of capital gains. This leaves potentially liable to on other income they earn from investments in Indian securities. Besides, the amendment is to take effect from April 1, 2015; that leaves investors exposed to levy on all their income for preceding periods.

was intended to apply only to domestic companies. This was clarified in the explanatory memoranda accompanying the Budgets that introduced or modified these provisions. Clarifying that FPIs, a sub-set of foreign investors more generally, will not be liable to raises the apprehension that Revenue will seek to levy for all other non-resident investors. That is inconsistent with the intent underpinning MAT’s introduction,” said in a statement.

“This will technically create a situation where they will have to pay tax,” agrees Rajesh Gandhi, partner, Deloitte Haskins & Sells LLP.

According to Riaz Thingna, partner, Walker Chandiok & Co, the way the clarification on is worded is ambiguous and, in fact, might lead to more litigation in future. “This needs more clarity as tax liabilities on still remain.”

“This will not affect a large number of investors. But if someone is from a treaty jurisdiction like the Netherlands or Singapore, he will have to deal with a higher tax rate under the that could be levied,” says Bijal Ajinkya, partner,

It is believed the clarification on will have been worded better to say it does not apply to FPIs, rather than saying capital gains will not be subject to “The current clarification can be seen as suggesting is applicable to all income earned by foreign investors, except capital gains. It is also unclear whether foreign investors will now have to go through all compliance procedures required under the Act, such as getting a tax certificate from a chartered accountant and preparing books of account. These funds do not draw up any India specific profit-and-loss account,” says Swamy.

In addition, offshore funds not registered as will possibly still be subject to

“In an ‘unfortunate miss’, though FPIs/have been removed from implications, no such relief has been considered for offshore funds that do not fall within the FPI/FII category,” says Khaitan’s Ajinkya.

The tax department has served notices on a little more than three dozen foreign investors and private equities, asking them to pay The tax demand from the 35 private equities alone is over Rs 1,000 crore.

STILL ON THE MAT

  • Exemption only applies to capital gains
     
  • Even exempt will have to complete compliance procedure and show why is not applicable
     
  • Wording suggests will apply in the cases where exemption is not available
     
  • Doubts on pending cases
     
  • who get interest income will still be subject to MAT
     
  • Offshore funds not registered as will also remain subject to tax

First Published: Mon, March 02 2015. 00:58 IST
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