[Pammy Jaiswal is a Partner at Vinod Kothari and Company] Background By virtue of the enforcement notification of the Ministry of Corporate Affairs (‘MCA’) dated 5 July 2018, the proposed change under section 75 of the Companies (Amendment) Act, 2017 (‘Amendment Act’) relating to section 366 of the Companies Act, 2013 (‘Act, 2013’) has been notified with effect from 15 August 2018. Further, by...
‘Royalty’: a Tax? : An Analysis of the Judicial Uncertainty and its Service Tax Implications
[Velpula Audityaa and Devansh Mani are both 4th year, B.A.LL.B (Hons.) Students at Symbiosis Law School, Pune] Whether royalty payable on minerals extracted as provided for under section 9 of the Mines and Minerals (Development and Regulation) Act, 1957 is in the nature of tax is one of the questions pending before a nine-judge bench of the Supreme Court. Depending on the outcome, there will be...
Cross Border Mergers in India: RBI Notification and Some Implications
[Roshni Menon is a 5th year B.A., LL.B (Hons.) student at School of Law, Christ University in Bangalore] Upon tracing the history of cross border mergers in India, one finds that the erstwhile Companies Act, (“1956 Act”) did contain provisions relating to the subject, however limited in its application. This law permitted a merger between a foreign company and an Indian company where the...
Taxability of Liquidated Damages from a MAT perspective: Tracing the Law
[Hardeep Singh Chawlais an Advocate practicing in the M&A & PE Tax Department of a Big4 in Gurgaon, Haryana. Views expressed are his own. The author may be reached at [email protected]] ***** “…… in a taxing Act one has to look merely at what is clearly said. There is no room for any intendment. There is no equity about a tax. There is no presumption as to a tax...
Analysis of “Externalisation” under Indian Law
[Deepansh Guwalani is a 4th Year Student at ILS Law College, Pune] Introduction “Externalisation” is a strategy of incorporating holding companies in offshore jurisdictions to enjoy certain benefits which the home country does not offer. The strategy is employed by companies to move their corporate structures away from the Indian tax and regulatory regimes. How it is done The process of...
India’s GAAR and the Multilateral Instrument: A Consideration for Foreign Portfolio Investors
[Aditi Khemani is a 4th Year student at Jindal Global Law School] Introduction Since the Union Budget of 2018-19, the India-Netherlands Double Taxation Avoidance Treaty (DTAA) has garnered attention. A major renegotiation of India’s treaties with Mauritius, Cyprus and Singapore last year saw a shift from the “residence rule” to the “source rule” of capital gains taxation. This eliminated the...
Exchange of Information under Double Taxation Avoidance Agreements
[Dheeresh Kumar Dwivedi is a lawyer at APJ SLG Law Offices New Delhi] With globalization, India has been entering into various double taxation avoidance agreements (“DTAAs”) with the countries across the globe. This is because of the inherent advantages that DTAAs provide insofar as avoidance of double taxation, facilitation of international trade and business, and curbing the menace of tax...
Testing the Constitutional Validity of the Anti-Profiteering Rules, 2017
[Yash Karunakaran is a 3rd year B.A., LL.B. (Hons.) student at NALSAR University of Law, Hyderabad.] While the aim behind the introduction of the Anti-Profiteering Rules, 2017 was to rein in possible price hikes during the introduction of the General Sales Tax (“GST”) regime, the hastily drafted parent act and the vague nature of the rules themselves have called into question the constitutional...
Treatment of Extreme Results and Multiple-Year Data in Indian Transfer Pricing Law
[Ayush Chaturvedi and Chandni Bhatia are 4th Year B.A.LLB (Hons) students at Dr. Ram Manohar Lohiya National Law University, Lucknow] Introduction Arm’s length price is obtained by conducting a detailed “comparability analysis” as per the rules laid down in the Income-tax Act, 1961 (“Act”), the Income-tax Rules, 1962 (“Rules”) and the OECD Transfer Pricing Guidelines for Multinational Enterprises...
Union Budget: Tax Policy Concerns for Capital Gains and Dividend Distribution on Mutual Funds
[Hardeep Singh Chawla is an Advocate practicing in the M&A & PE Tax Department of a Big4 in Gurgaon, Haryana. Views expressed are his own. The author may be reached at [email protected]] “The only difference between death and taxes is that death doesn’t get worse every time Congress meets” – Will Rogers Recently the Finance Minister tabled the Finance Bill, 2018 (‘Bill’)...
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