The party is over - Mauritus no longer to be the tax haven

26 Mar 2012 Evaluate

Mauritius, the tax haven for the foreign institutional investors may soon seize to be so. The government is moving forward with the general-anti-avoidance rules or GAAR that it introduced in the Budget 2012. It is a significant attempt made by the government to plug all loopholes and generate revenue.

Foreign institutional investors have invested over $ 100bn in Indian equities till date. As much as 40% of that investment has come into India through Mauritius. This means, FIIs set up an investment holding company in Mauritius and invest through a company registered in that country. This is because India's treaty with Mauritius exempts them from short-term capital gains on listed and unlisted stocks.

But now GAAR can override the treaty. It will help the tax authority deal with commercial transactions that are structured essentially to circumvent tax laws and avoid paying taxes. If the revenue authority concludes that a transaction by any entity is aimed primarily at avoiding taxes, it will be able to deny tax benefits claimed by the entity. If the investor feels that this is not the case then the onus shall lie on him to prove the same.

The proposed Sec.97(1)(c) says: “An arrangement will be deemed to lack commercial substance if it involves the location of an asset or of a transaction or of the place of residence of any party which would not have been so located for any substantial commercial purpose other than obtaining tax benefit for a party.” The Vodafone deal would not have passed this test.

The Central Board of Direct Taxes (CBDT), India’s apex body for administration of taxes, has formed a six-member committee to draft guidelines for enforcing the same. The panel, headed by CBDT chairman Laxman Das, is expected to submit the draft norms to the finance ministry within two months. The proposed guidelines will be put up for public feedback before they are finalized by the committee.

GAAR, even though unpleasant for investors, could help the government raise revenues. It is unlikely to deter an honest investor who is looking at genuine profits rather than mere tax evasion. However, there quarters in the industry who feel that it could substantially reduce investments in India and force investors to look at other destinations.  

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