| Citation(s) |
|---|
| 2015 SLG 2520 2015 SLD 2520 (2015) 379 ITR 256 |
Punjab and Haryana High Court
CIVIL WRIT PETITION No. 11037 OF 2014 (O&M) AUGUST 26, 2015
S.J. VAZIFDAR, ACTG. C.J. AND G.S. SANDHAWALIA, J.
Authority for Advance Rulings, New DelhiPorus Kaka, Senior Advocate, J.S. Dhaliwal, Manish Kanth, Rajesh Sunhan and Prateek Banjara, Advocates for the Petitioner. Tejinder Joshi, Advocate for the
Respondent.
CIVIL WRIT PETITION No. 11037 OF 2014 (O&M) AUGUST 26, 2015
S.J. VAZIFDAR, ACTG. C.J. AND G.S. SANDHAWALIA, J.
Authority for Advance Rulings, New DelhiPorus Kaka, Senior Advocate, J.S. Dhaliwal, Manish Kanth, Rajesh Sunhan and Prateek Banjara, Advocates for the Petitioner. Tejinder Joshi, Advocate for the
Respondent.
Serco BPO (P.) Ltd.v.
Law:
Section:
Section 9 of the Income-tax Act, 1961, read with article 13 of DTAA between India and Mauritius - Income - Deemed to accrue or arise in India (Capital gains) - A share purchase agreement was entered into between assessee and two companies namely 'blackstone' and 'Barclay' incorporated in Mauritius - In terms of agreement, Mauritius based companies agreed to sell their shareholding in an Indian company, namely, SKR BPO, to assessee - Whether since capital gains that arose on account of sale of shares of SKR BPO by Blackstone and Barclays were derived by a resident of a Contracting State from alienation of property other than property mentioned in paragraphs 1, 2 and 3 of Article 13 of DTAA, same was taxable only in 'that State' i.e. Mauritius - Held, yes - Whether, consequently, assessee was not required to deduct tax at source while making payment of sale consideration of shares to seller companies - Held, yes [Para 45] [In favour of assessee] FACTS â– A share purchase agreement was entered into between assessee and two companies namely 'Blackstone' and 'Barclay' incorporated in Mauritius. â– In terms of agreement, the two Mauritius based companies agreed to sell their shareholding to an Indian company namely SKR BPO to assessee. â– The assessee filed an application before the AAR seeking ruling on the question as to whether capital gain arising to 'Blackstone' and 'Barclay' on account of sale of shares of SKR BPO was taxable in India and, therefore, assessee was required to deduct tax at source while making payment of sale consideration of shares to sellers. â– The AAR declined to give a ruling on the application on the basis of a prima facie finding that the factual scenario projected by the revenue established that the transaction in question was designed for avoidance of tax. It was held that for dealing with a situation under section 245-R(2)(iii) detailed and in-depth analysis to arrive at a definite conclusion about the nature of the transaction was impermissible. â– On writ: HELD â– There is not a single finding of fact in relation to the prima facie finding that the transaction/arrangement in this case was…