Relieving the anxiety of foreign portfolio investors (FPIs) over the issue of multiple taxation, the government has said that it is putting on hold its recent circular on taxation of indirect transfers. On December 21, 2016, the Central Board of Direct Taxes (CBDT) had issued a circular applying indirect transfer provisions on FPIs whereby any profits made by funds with the underlying assets would have been taxed, including equities in India.
The circular was intended to provide clarity on the circumstances in which the indirect transfer provisions are to be applied but it failed to address the concerns of various stakeholders, chiefly FPIs, with regard to issues like potential double and triple taxation, onerous compliance requirements, and lack of tax neutral foreign corporate restructuring. It also gave rise to fears of retrospective taxation as the principal amendment to the Income Tax Act on indirect transfers was such in nature.
CBDT in a notification said that after the issue of the aforementioned circular, representations were received from various FPIs, foreign institutional investors (FIIs), venture capital funds (VCFs) and other stakeholders. The stakeholders have presented their concerns stating that the circular does not address the issue of possible multiple taxation of the same income. It added that the representations made by the stakeholders are currently under consideration and examination and the operation of the above-mentioned circular is kept in abeyance for the time being. Application of these provisions would have subjected foreign portfolio investors to greater scrutiny by the Income Tax department and would have led to double-taxation in many cases. The circular would have put at risk particularly the 181 publicly traded funds whose India exposure is more than half of total assets.
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