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Genuine transactions won't get caught in tax tangle

Central Board of Direct Taxes notifies rules for levy of capital gains tax on certain equity investments where no Securities Transaction Tax has been paid.

ET Bureau|
Jun 07, 2017, 12.27 AM IST
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Transfers to trusts and succession by way of wills are also excluded now from the provision.
Transfers to trusts and succession by way of wills are also excluded now from the provision.
NEW DELHI: Foreign direct investments into India, employee stock options, and transfer of shares through gifts and offmarket transactions recognised by the central bank, the market regulator, top courts or tribunals will not attract the capital gains tax even if no securities transaction tax (STT) had been paid, putting at rest the lingering concerns over the likely tax incidence on genuine deals.

The Central Board of Direct Taxes (CBDT) announced the final rules for the levy of capital gains tax on certain equity investments where no STT was paid, enabling a separation of genuine transactions that have been recognised by the regulators, a high court, the Supreme Court, or the National Company Law Appellate Tribunal.

The notification is significant as it puts an end to the uncertainty that arose after a change in the law in the FY18 budget.

The CBDT had earlier said in the draft notification that the rule, introduced in the budget, would allow the imposition of capital gains tax on the acquisition of listed shares in off-market transactions if STT is not paid. Acquisition of shares through gift, merger or conversion would also be exempt, according to the notification issued by CBDT.

Transfers to trusts and succession by way of wills are also excluded now from the provision.

In the budget for FY18, the government had noted the misuse of the exemption provided under section 10(38) to income from transfer of long-term capital assets, such as equities and mutual fund, on which STT had been paid.

“With a view to preventing this abuse, it is proposed to amend section 10(38) to provide that exemption under this section for income arising on transfer of equity share acquired or on after 1st day of October, 2004 shall be available only if the acquisition of share is chargeable to Securities Transactions Tax under Chapter VII of the Finance (No 2) Act, 2004,” the budget had said.

The CBDT said that the condition of chargeability to STT shall not apply to all transactions of acquisitions of equity shares entered into on or after October, 1, 2004, other than the specified transactions such as acquisition of listed shares in preferential issues of a company whose shares are not frequently traded in a recognised stock exchange, acquisition of existing listed equity shares in a company not through a recognised stock exchange, and acquisition of shares of company during the period of its delisting.

“However, to protect the interest of genuine investors, exceptions are also provided in the specified transactions,” it said in a statement Tuesday. This carve-out will address the unintended consequence of bringing to tax transactions such as ESOPs and FDI, which was not the intent of the provision.

The final notification ensures these transactions will not be taxed. “The final notification takes into consideration the several representations received on the draft notification and in its final form almost all genuine transactions will remain exempted from capital gains tax, " said Abhishek Goenka, leader, direct taxes, PwC.

“The CBDT notification is welcome because it exempts various types of acquisitions such as those under ESOPs, acquisitions by non-residents, tax-free transfers such as gifts, and shares acquired under schemes of various regulators like SEBI, NCLT, RBI etc. ," said Rajesh H. Gandhi, partner, Deloitte Haskins & Sells LLP.
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