Foreign investors from Mauritius, Cyprus and Singapore have been on the receiving end of a number of notices for gains from investment in fully or compulsorily convertible debentures (CCDs) issued by Indian companies.
CCDs, which are compulsorily converted into equity after a specified period, had gained popularity after the tax treaties of these regions with India were amended in 2017, with the aim of taxing capital gains on shares in India.
“The tax authorities believe that capital gains accruing or arising to a tax resident is now taxable in India irrespective of the nature of instruments that are being sold. This has resulted in a technical dispute because while the tax authorities are claiming that all capital gains are taxable, foreign investors believe that the sale of securities other than shares continue to be remain non-taxable,” said SR Patnaik, Partner & Head - Taxation, Cyril Amarchand Mangaldas.
“The treaties, post amendment, made capital gains on “shares” taxable in India. However, the amendments do not apply to debt instruments. Debt instruments still fall under the residual clause in the tax treaties, according to which the gains on such instruments will be taxable only where the resident is based,” said Punit Shah, partner, Dhruva Advisors.
This effectively means there is no capital gains tax to be paid in India by, say, a Mauritius investor subscribing to CCDs of an Indian company.
The FDI guidelines treat CCDs as equity for the purposes of reporting to the Reserve Bank of India. However, they are treated as debt for the purpose of income tax till the time of conversion.
“Any attempt by the tax authorities to tax gains on CCDs would not be in accordance with the law and will create unnecessary litigation, adversely impacting the FDI flows in India,” said Shah.
According to industry players, there may be funds that sell CCDs to a friendly third party when the life of a CCD is about to end. (These third parties already have losses against which the interest income, which is at times back ended can be offset.) The fund takes the treatment of capital gains and claims an exemption under the treaty.
One argument that the tax department can take is that CCDs should be treated as shares because RBI treats these instruments at par with equity.
“The courts have in the past struck down this argument and held that the classification of an instrument under income tax laws and RBI need not be the same,” said Abhay Sharma, partner, Shardul Amarchand Mangaldas & Co.
Even before the treaties were amended, there have been attempts by the tax department to treat the gains made on the sale of debentures of CCD as interest income.
The Delhi High Court had struck this down in 2014 in the case of Zaheer Mauritius, a company which was a tax resident of Mauritius. The Authority for Advance Ruling had ruled that the gains arising on sales of equity shares and CCDs were taxable as interest income. The HC, however, held that these gains should be characterised as capital gains.
CCDs can carry an interest coupon that facilitates assured profit extraction on a regular basis. Interest on CCDs are taxable in India at 7.5 per cent under the India-Mauritius treaty, and at 15 per cent under the India-Singapore tax treaty.
Market watchers now fear that the taxman may use a different tact and apply GAAR to these transactions.
“The taxman may argue, applying GAAR provisions, that CCDs, as convertible instruments, are akin to shares, and that the debt instrument (CCD) was chosen only for tax purposes. This wouldn’t be a correct position in law. Investors in CCDs are legitimately using these instruments for earning interest income and do not have the rights enjoyed by an equity holder until converted,” said Shah.
Tax treaty benefit
With this in mind, it is critical to demonstrate substance in the resident country in order to claim tax treaty benefit and claim tax exemption on capital gains on debt instruments, he added.
Patnaik believes that the notices received by investors may become litigious, with the Courts determining the outcome.
“This does not augur well with Indian government’s often repeated endeavour to “ease of doing business in India” and providing a stable and non-confrontational tax regime for foreign investors,” he said.
Under the net
Foreign investors from Mauritius, Cyprus and Singapore under lens for gains from compulsorily convertible debentures issued by Indian cos
CCDs are compulsorily converted into equity after a specified period
Had gained popularity after the tax treaties of these regions with India were amended in 2017, taxing capital gains on sale of shares
Treated as debt for the purpose of income tax till the time of conversion
Attempts made in past by the tax department to treat the gains made on sale of CCDs as interest income
Taxman may apply GAAR to these transactions.