The government on Thursday provided a major relief to foreign companies, exempting them from paying minimum alternate tax retrospectively from April 2001 if they don’t have a permanent establishment in India. The move comes amid Prime Minister Narendra Modi’s US visit.
Tax experts said the clarification will allay investors’ apprehensions of uncertainty in the taxation regime while also encourage foreign investments into the country.
The move comes as the government pitches for more foreign investments in the country. Last week finance minister Arun Jaitley visited Hong Kong and Singapore with a business delegation and met private equity firms, asset management companies and other institutional investors, seeking overseas investment in various sectors.
Earlier during the month, the finance ministry had exempted foreign institutional investors (FIIs) from paying MAT to soothe investor sentiments, which had taken a hit following the notices issued by the tax department seeking MAT on capital gains made by them up to March 31, 2015. MAT is levied on entities which don’t pay corporate income tax because of several exemptions and incentives.
Following a global outcry, a panel under justice AP Shah was formed in May. The panel submitted its report last month and suggested that MAT should not be levied on FIIs.
In a statement, the Central Board of Direct Taxes (CBDT) said that the provisions of section 115JB, pertaining to levy of MAT, will not be applicable to a foreign company if it is based in a country with which India has DTAA while also it does not have a permanent establishment in the country.
The benefit will be applicable retrospectively beginning April 1, 2001. The CBDT said that appropriate amendment in this regard will be carried out.
In case, the foreign company is not based in a country having a double taxation avoidance agreement (DTAA) with India, it will be exempted if it does not have to register under section 592 of the Companies Act 1956, or section 380 of the Companies Act 2013. These sections pertain to filing of details like certified copy of charter or memorandum and articles within 30 days of establishment of its place of business in India.
“This (today’s development) addresses the complete set of investors in that sense, for instance to investments under FDI route, FVCI route etc,” Sameer Gupta, leader for tax financial services, EY India, said.
The Shah panel had also recommended that foreign companies which don’t have a PE or a place of business in India should not be liable to pay MAT. The panel had argued that internationally, none of BRICS countries levy MAT and some of the OECD countries levy MAT but not on foreign companies or persons unless they have a physical presence.
However, concerns about whether the government would be able to push through pertaining amendments in the Income Tax Act in the Winter Session of Parliament remain.
The clarification will also benefit the Castleton Investment Ltd case, due to come up in the Supreme Court for hearing later this month. In August 2012, the Authority for Advance Rulings in the case had ruled that MAT is applicable to both domestic and foreign companies not having a PE in the country. This was challenged by the Mauritius-based company in the SC.
Amit Maheshwari, managing partner of Ashok Maheshwary & Associates, said that clarity on the fate of foreign companies not having PE in India but based in non-DTAA countries still remains unclear.
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