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In a setback to Tiger Global Management Llc, the Supreme Court on Thursday upheld the income tax department's claim that capital gains arising from the US-based investor's $1.6-billion exit from Flipkart in 2018 are taxable in India. The top court set aside the August 2024 judgment of the Delhi
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Tiger Global liable to pay tax on 2018 Flipkart deal: Supreme Court
Tiger Global liable to pay tax on 2018 Flipkart deal: Supreme Court
In a setback to Tiger Global Management Llc, the Supreme Court on Thursday upheld the income tax department's claim that capital gains arising from the US-based investor's $1.6-billion exit from Flipkart in 2018 are taxable in India.
The top court set aside the August 2024 judgment of the Delhi high court, which had earlier quashed the tax demand and held in favour of Tiger Global.
The judgment pronounced by a bench of Justices J.B. Pardiwala and R. Mahadevan will potentially change how India taxes foreign investors and how it reads its most important tax treaty, the India-Mauritius Double Taxation Avoidance Agreement (DTAA).
At the centre of the dispute was Tiger Global's $1.6-billion exit from Flipkart in 2018, when Walmart Inc. bought a controlling stake in the Indian e-commerce company in one of the biggest cross-border deals in India.
The question was whether Tiger Global can claim capital gains tax exemption under the India-Mauritius DTAA for the sale, or whether its Mauritius companies were only “front” entities controlled from the US, meaning the treaty was misused and the profits should be taxed in India.
The casefile
The story goes back more than a decade. Tiger Global invested in Flipkart in its early years.Like many foreign investors at the time, the global venture capital and private equity firm routed its investments through Mauritius. This was common because the India-Mauritius tax treaty, signed in 1983, allowed companies based in Mauritius to sell shares of Indian companies without paying capital gains tax in India.
Mauritius eventually emerged as India's largest source of foreign direct investment (FDI), accounting for about 25% of total inflows. Between April 2000 and September 2024, investments routed through Mauritius amounted to over $177 billion, including $5.34 billion in the first half of 2024-25, according to data from the Department for Promotion of Industry and Internal Trade (DPIIT).
Tiger Global set up several companies in Mauritius—Tiger Global International II, III, and IV Holdings. These companies collected money from hundreds of investors worldwide and invested in Flipkart's Singapore holding company between 2011 and 2015. Back then, Flipkart was owned through a Singapore parent, a structure many Indian startups used to attract foreign money.
In 2016, India changed the treaty to stop tax avoidance. It was decided that shares bought on or after 1 April 2017 would be taxed in India. However, older investments were “grandfathered”, meaning they would still enjoy tax exemption, subject to certain conditions.
Tiger Global's investments were made before 2017, so on paper, they enjoyed the protection.
When Walmart agreed in 2018 to buy about 77% of Flipkart for around $16 billion, Tiger Global sold part of its stake. Its Mauritian companies together received about $1.6 billion.
Before the deal closed, these companies requested permission from Indian tax authorities to receive the money without tax deduction. The tax department refused, saying the Mauritius firms were only routing vehicles and that the real control and decision-making were in the US. According to the department, the structure was created only to avoid Indian tax.
Tiger Global then went to the Authority for Advance Rulings (AAR). In 2020, the AAR ruled that Tiger Global had sold shares of Flipkart's Singapore holding company, not of an Indian company, and that the India-Mauritius tax treaty was not intended to grant exemption for the sale of shares in a foreign company, even if that company's business was primarily conducted in India.
Tiger Global challenged this before the Delhi high court.
In August 2024, the high court ruled in Tiger Global's favour, saying that using a tax-friendly country does not automatically mean tax evasion. It held that Tiger's Mauritian companies were real, had business activity and long-term investments, and that the tax department could not dismiss the case without a full examination.
The tax department then appealed to the Supreme Court, which stayed the high court order in Jaunary 2025.
Before the top court, Tiger Global argued that its Mauritian companies are genuine residents of that country, supported by official Tax Residency Certificates, that their investments were made before 2017 and are therefore protected, and that real decisions were taken by boards in Mauritius.
The tax department countered that the Mauritius setup was only a cover, that a residency certificate is not a “magic pass”, and that the real “head and brain” of the business was in the US.
Source: LiveMint
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