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Navigating taxation of capital contributions in a sea of anti-avoidance ... https://tax.cyrilamarchandblogs.com/2024/01/navigating-taxation-of-capital-contributions-in-a-sea-of-anti-avoidance-provisions/ |
SC delivers two landmark judgments on exemptions ... - India Tax Law https://tax.cyrilamarchandblogs.com/2022/10/sc-delivers-two-landmark-judgments-on-exemptions-claimed-by-charitable-institutions/ |
Faceless assessment: Is this the right cure? | India Tax Law https://tax.cyrilamarchandblogs.com/2021/11/faceless-assessment-is-this-the-right-cure/ |
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Decoding the applicability of new TDS provisions on sale of securities ... https://tax.cyrilamarchandblogs.com/2021/07/decoding-the-applicability-of-new-tds-provisions-on-sale-of-securities/ |
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Current Page: homeexpertise people contact RSS LinkedIn Facebook Instagram Spotify Search Close Enter Search Terms Search India Tax Law Google Adwords program is not taxable as either royalty” or Fee for technical services” in India By S.R. Patnaik , Thangadurai V.P & Aman Garg on April 4, 2024 Posted in Income Tax Listen to this post The Income Tax Appellate Tribunal, Bangalore ( Tribunal” ), recently in Google Ireland Ltd. v. DCIT [1] allowed an appeal by Google Ireland Ltd ( Google Ireland” ) and held that the payments received from Google India Pvt Ltd ( Google India” ) for granting marketing & distribution rights of Google AdWords program were not in the nature of royalty” or fee for technical services ( FTS” ) and consequently it could not be brought to tax in India. Continue Reading Google Adwords program is not taxable as either royalty” or Fee for technical services” in India GST on canteen facilities and it’s applicability on non-permanent employees By S.R. Patnaik & Shivam Garg on March 11, 2024 Posted in GST Listen to this post In the bustling landscape of Indian factories and corporate setup, providing canteen facilities and other perquisites to employees, deputed persons from sister concerns and third-party contractors have become a common phenomena. The Factories Act, 1948, statutorily mandates employers to provide certain amenities, including canteen services, for factories with more than 250 workers, but for others, it is voluntary and provided as a goodwill gesture. To maintain a conducive work environment, such facilities have become important. However, the advent of the Goods and Services Tax ( GST ) has introduced complexities, especially concerning taxation on canteen facilities provided to employees, deputed persons and third-party contractors. Continue Reading GST on canteen facilities and it’s applicability on non-permanent employees Are TDS provisions tedious? Opportune time for simplification By S.R. Patnaik , Rashi Gupta & Mayank Singh on February 12, 2024 Posted in Income Tax Listen to this post The Tax Deducted at Source ( TDS ”) provisions under the Indian Income Tax Act of 1961 ( IT Act ”) have been the cornerstone of the country’s tax architecture. A payer (or a deductor) is expected to be vigilant at the time of entering into any transaction, so that the required taxes are duly deducted and deposited with the Government where required, to avoid any adverse implications including penal consequences later. TDS mechanism, under Indian tax laws, has been a useful tool to collect taxes, targeting income at source itself. Continue Reading Are TDS provisions tedious? Opportune time for simplification Unfolding tax tools to invigorate resolution of companies under IBC By S.R. Patnaik , Reema Arya & Shivam Garg on February 8, 2024 Posted in Income Tax Listen to this post The Insolvency and Bankruptcy Code (IBC), introduced in 2016, was conceived as a game-changer, a potent tool to expedite debt recovery from insolvent companies within a stipulated timeframe. Eight years into its existence, the IBC has witnessed a mixed track record. While it has successfully revitalised some companies grappling with financial turmoil, it has also faced criticism. The aim of the IBC was not only to aid the revival of struggling companies, but also to enhance the quality of lenders’ balance sheets and empower distressed asset buyers. Continue Reading Unfolding tax tools to invigorate resolution of companies under IBC Navigating taxation of capital contributions in a sea of anti-avoidance provisions By Kunal Savani , Bipluv Jhingan & Lakshya Gupta on January 31, 2024 Posted in Income Tax Listen to this post Introduction The intricacies of tax law often unfold through nuanced interpretations and amendments aimed at addressing loopholes. One such facet is the taxation of capital contributions by partners in partnership firms (including limited liability partnerships), as delineated under section 45(3) of the Income-tax Act, 1961 ( IT Act ”). This provision deals with taxing transactions involving contribution of a capital asset by a partner to a partnership firm. It creates a deeming fiction whereby such contribution is considered as a taxable ‘transfer’, with the amount recorded in the books of accounts of the firm being taken as the ‘full value of consideration’ received for the asset. The said provision was introduced as an anti-avoidance measure, since it was found that taxpayers were converting individual assets into assets of a firm and escaping capital gains tax. [1] Subsequent to the insertion of section 45(3), two additional deeming provisions, i.e., sections 50C and 50CA, were added to the IT Act. They seek to target transactions involving transfer of immovable properties and unquoted shares, respectively. The said provisions require that such assets be transferred at least at fair market value (determined in a prescribed manner), failing which such fair market value would be deemed to be the ‘full value of consideration’ for the purposes of computing capital gains in the hands of the transferor. The intent behind these sections was to tackle the influx of black money in property and share transactions, made possible by undervaluing the property. Thus, the presence of these provisions in the IT Act raises a fundamental question – whether a partner is required to contribute immoveable properties and unquoted shares to a firm at their fair market value to ensure compliance with sections 50C and 50CA or if section 45(3) would override these provisions. Arguments and Analysis The rule of construction, ‘ generalia specialibus non derogant’ , emphasises that special provisions prevail over general ones. Section 45(3) is a specific provision tailored for situations involving capital contributions, whereas sections 50C and 50CA operate more generally and apply to all kinds of transfer. Further, it is also an accepted principle of statutory interpretation that one deeming provision cannot be extended by importing another deeming fiction. Both sections 45(3) and 50C/50CA create deeming fictions whereby the full value of consideration is determined in specified scenarios. Basis these rules of construction, both section 45(3) and sections 50C/50CA should not operate simultaneously. Further, section 45(3), being a more special provision, should prevail over sections 50C/50CA. The aforementioned understanding has been endorsed by, inter alia , the Mumbai Income Tax Appellate Tribunal [2] ( ITAT ”) and the Ahmedabad ITAT. [3] The Mumbai ITAT has observed that section 45(3) comes into play only when a capital contribution is made by partners to a partnership firm. Further, the said provision provides a deeming fiction whereby the amount recorded in the books is considered to be the full value of consideration. Hence, another deeming fiction provided under section 50C cannot be extended to compute the full value of consideration when an immoveable property is contributed by a partner to the partnership firm. The Chennai ITAT [4] has also adopted a similar approach and has clarified that if the provisions of section 50C were to override section 45(3), it would result in a situation where the provisions of section 45(3) would become otiose. Further, the ITAT held that such an interpretation would be against the intention of the legislature, considering the legislature did not carve out any exemption under section 45(3), at the time of introducing sections 50C/50CA. However, the Allahabad High Court ( HC ”) [5] has opined that section 50C should apply to transactions involving contributions of immoveable property by a partner in a partnership firm. It is relevant to note here that this decision was rendered in the context of a unique fact scenario, where the tax authorities were able to establish that the impugned transaction was a colourable device to evade taxes. Thus, the observations made by the HC, in the said case, reflect that the interplay...
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