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Tiger Global saga: An interpretation of maladies that's open to more ills
Tiger Global may file a review petition following a Supreme Court verdict on the India-Mauritius tax treaty. The ruling alters how investors interpret tax treaties, particularly regarding indirect transfers. This development sparks discussions in tax and legal circles. The verdict's interpretation of a key treaty article differs significantly from investor expectations.
What's next in the Tiger Global saga? The buzz is that over the past few days Pricewaterhouse honchos and partners of the law firm Nishith Desai Associates have been discussing the Supreme Court verdict with legal eagle Harish Salve, sparking a chatter in tax and legal circles that the Wall Street investment firm may examine moving a review petition. Some are betting New Delhi may step in to clear the fog. Why?
The wheels within wheels in the 150-page verdict has turned Tiger's tussle with the tax office far from an open and shut case: it would shape the way investors interpret the language of a tax treaty-an animal that emerged in 1920s from the League of Nations.
What really changed? Besides doubting the tax residency certificate (TRC) that Tiger Global Mauritius obtained from the island authorities to avoid capital gains tax, the apex court's interpretation of a crucial article in the India-Mauritius treaty is dramatically different from that of investors, particularly those from the US, and their army of top notch advisors.
UPTURNING BELIEFS
The paragraphs 18 and 19 of the ruling are lethal as they upturn the way most believe treaties work. The upshot of paragraph 18 is that capital gains tax should not be exempted for 'indirect transfer' of shares of an Indian company, even if the Mauritius entity has a foolproof TRC and adequate commercial substance which satisfies tax officials.
A 'direct transfer is a transaction where a Mauritius investor sells shares of an Indian company it directly holds; an 'indirect transfer' is when a Mauritius investor sells shares of a Singapore company which in turn owns an Indian company - similar to the Tiger-Flipkart deal.
The bone of contention is Article 13(4) in the revised India-Mauritius treaty which says: "Gains from alienation of any property other than referred to in paragraphs 1, 2, 3 and 3A shall be taxable only in the contracting state of which the alienator is a resident". Here, "alienator" (or seller) is Tiger Mauritius, "contracting state" is Mauritius and "any property" refers to shares of Flipkart Singapore which Tiger Mauritius sold.
Since Articles 13 -1, 2, 3 and 3A talk about imposition of tax on 'direct' transfers of assets like shares and immovable properties in India, almost all foreign investors interpret that "any property other than (those) referred to in (the above) paragraphs" include shares of companies in other jurisdictions (like Singapore), along with equity derivatives and certain other securities. By this logic, their transfers are not taxed in India.
Legal Ambiguity
However, according to SC, 13(4) cannot be read in isolation, and since the previous articles deal with direct transfers, 13(4) is confined to 'direct' transfers; therefore, the sale of a Singapore company which derives its value from an Indian company should be taxed in India.
Paragraph 19 of the ruling sticks to an austere interpretation found in recent global discussions for creating a framework to plug tax loopholes and treaty shopping. Here, the court has spelt out, once again unambiguously, that tax would kick in if an offshore investor escapes tax in both the jurisdictions (i.e. Mauritius as well as India).
Whether these are part of the core verdict or passing reference-obiter dicta in legal parlance-is a moot point, depending on which side of the table one sits. But it can spur tax officials, chasing steep revenue targets, to shoot notices, questioning indirect investment arrangements of foreign investors through Mauritius or Singapore (which has a near identical treaty with India). Apart from the changed tax-arithmetic that may (or, may not) impact foreign direct and portfolio inflows, the implications of the ruling, and how the government handles them, could also influence the status of GIFT City which is trying to position itself as an international investment hub.
If GIFT has to be showcased as a centre where foreign investors would float entities for investing across markets, the government would understandably want GIFT City to be eligible for treaty benefits in other countries the way Mauritius or Singapore is.
A decade before the end of apartheid, India had signed the treaty with Mauritius, an entrepot for South Africa, as a quid pro quo deal: exports from India reached Africa through the Indian Ocean island while investors from Mauritius were spared capital gains tax in India. The treaty was changed in 2016 to tax investments post March 2017, amid hue and cry over its abuse and urgency to mobilise revenue. Today, a longer shadow looms over it.
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Source: EconomicTimes
Related Posts: Tiger Global,India-Mauritius tax treaty,Supreme Court verdict,capital gains tax,Pricewaterhouse,Nishith Desai Associates,Harish Salve,international investment hub,GIFT City
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