CBDT Prescribes Conditions to Claim Relief on Offshore Indirect Transfer of Indian Assets

Table of Contents:

1. Introduction

2. Amendment to Section 9 by the Finance Act, 2012

3. Amendment by Taxation Laws (Amendment) Act, 2021

3.1 Impact on pending assessments

3.2 Impact on concluded assessments

4. Conditions prescribed under Rule 11UE

4.1 Furnishing of undertaking in Form 1

4.2 Withdrawal of all proceedings or appeals

4.3 Withdrawal or waiver of all rights

4.4 Waiver of right to seek any cost in respect of any proceedings

4.5 Waiver of right in relation to any event which may otherwise be available

4.6 Indenifying India from any cost arising from filing claim after furnishing Form 1

4.7 Refrainment from assisting any person to raise any claim or reward

4.8 Issue of public notice

5. Manner of furnishing of undertaking

5.1 Time limit to submit Form 1

5.2 Grant of certificate by Commissioner in Form no. 2

5.3 Filing of intimation in Form 3

5.4 Grant of relief by Commissioner

5.5 Rejecting undertaking or decline relief

5.6 Relief granted in Form 4 is binding on Assessing Officer

5.7 Extension of limitation period to pass order by Pr. CIT or CIT

5.8 Appeal against any direction or order

1. Introduction

The Taxation Laws (Amendment) Act, 2021 (hereinafter referred to as TLA, 2021) inserted three provisos (Fourth, Fifth, and Sixth Proviso) in Explanation 5 to Section 9(1)(i) to give relief to certain eligible entities impacted by the retrospective amendment made to Section 9 by the Finance Act, 2012. These amendments provides that the provisions of indirect transfer of assets in India shall not apply to the assets transferred before 28-05-2012 (i.e., the date on which the Finance Bill, 2012 received the assent of the President). Accordingly, all pending assessments shall be deemed to have been concluded without additions for such income. It is further provided that the demand raised in concluded assessments or rectification orders for indirect transfer of Indian assets made before 28-05-2012 shall be nullified on the fulfilment of specified conditions such as withdrawal or furnishing of undertaking for withdrawal of pending litigation and furnishing of an undertaking to the effect that no claim for cost, damages, interest, etc. shall be filed. Further, the amount paid/collected in these cases shall be refunded, without any interest, on fulfilment of the said conditions. The CBDT had issued the draft rules on 28-08-2021 prescribing the specified conditions to claim the above relief.

After examining the stakeholder comments on the draft rules, the CBDT has notified the final rules vide Notification No. GSR 713(E), dated 01-10-2021 wherein the following rules have been inserted to the Income-tax Rules, 1962:

a) Rule 11UE provides for the specified conditions in order to be eligible to claim relief under TLA 2021; and

b) Rule 11UF provides the form and manner of furnishing the undertaking for withdrawal of pending litigation, claiming no cost, damages, etc.

2. Amendment to Section 9 by the Finance Act, 2012

The Finance Act, 2012 inserted Explanation 4 and Explanation 5 to Section 9(1)(i) with retrospective effect from 01-04-1962. The amendment has clarified that gains arising from the sale of shares of a foreign company are taxable in India if such shares, directly or indirectly, derive their value substantially from the assets located in India. The Govt. had termed the amendments as clarificatory in nature.

Explanation 5 to Section 9(1)(i) clarifies that an asset or a capital asset, being any share or interest in a company or entity registered or incorporated outside India, shall be deemed to be situated in India, if the share or interest derives, directly or indirectly, its value substantially from the assets located in India. In other words, an asset or capital asset shall be deemed to have been situated in India, and income arising from transfer of such asset shall be deemed to accrue or arise in India if the following conditions are satisfied:

a) The asset or capital asset is a share (or interest) in a company (or entity) registered or incorporated outside India;

b) The share or interest derives its value substantially from the assets located in India; and

c) Such value may be derived directly or indirectly from the assets located in India.

However, the share or interest shall not be deemed to derive its value substantially from the assets (whether tangible or intangible) located in India, if, on the specified date, the value of such assets:

a) Does not exceed Rs. 10 crores; and

b) Does not represent at least 50% of the value of all the assets owned by the company or entity, as the case may be.

3. Amendment by Taxation Laws (Amendment) Act, 2021

The TLA, 2021 inserted three provisos (Fourth, Fifth, and Sixth Proviso) in Explanation 5 to Section 9(1)(i) to give relief to certain eligible entities impacted by the above retrospective amendment. The impact of these Provisos has been discussed below.

3.1 Impact on pending assessments

The Fourth Proviso to Explanation 5 to Section 9(1)(i) provides that the provisions of Explanation 5 (hereinafter referred to as ‘indirect transfer of Indian assets’) shall not apply, in respect of income accruing or arising through or from the indirect transfer of Indian asset made before 28-05-2012, to:

a) an assessment or reassessment to be made under Section 143, Section 144, Section 147 or Section 153A or Section 153C;

b) an order to be passed enhancing the assessment or reducing a refund already made or otherwise increasing the liability of the assessee under Section 154; or

c) an order to be passed deeming a person to be an assessee in default under Section 201(1).

In other words, the retrospective impact of Explanation 5 to Section 9(1)(i) shall be ignored if assets situated in India are indirectly transferred before 28-05-2012. Thus, the income accruing or arising through or from such indirect transfer of Indian assets or capital assets shall not be taxable in India. Therefore, all assessments or rectification applications pending before the authorities, to the extent it relates to the computation of income from indirect transfer of assets, shall be deemed to be concluded without any additions.

3.2 Impact on concluded assessments

The Fifth Proviso to Explanation 5 to Section 9(1)(i) provides that the provisions of Explanation 5 shall not apply, in respect of income accruing or arising through or from the indirect transfer of Indian asset made before 28-05-2012, to:

a) an assessment or reassessment made under Section 143, Section 144, Section 147 or Section 153A or Section 153C;

b) an order passed enhancing the assessment or reducing a refund already made or otherwise increasing the liability of the assessee under Section 154;

c) an order passed deeming a person to be an assessee in default under Section 201(1); or

d) an order passed imposing a penalty under Chapter XXI or under Section 221.

In other words, the retrospective impact of Explanation 5 to Section 9(1)(i) shall be ignored if assets situated in India are indirectly transferred before 28-05-2012. Thus, the income accruing or arising through or from such indirect transfer of Indian assets or capital assets shall not be taxable in India. Therefore, all assessments or rectification applications concluded by the authorities, to the extent it relates to the computation of income from indirect transfer of assets, shall be deemed to never have been passed or made.

The Sixth Proviso provides that where any amount becomes refundable to such person, then such amount shall be refunded to him, but no interest under section 244A shall be paid on that amount.

The relief in cases of concluded assessments shall be given to only those assessees who satisfy the following conditions as specified in Explanation to Fifth and Sixth Proviso to Section 9(1)(i):

a) where the assessee has filed an appeal before an appellate forum or any writ petition before the High Court or the Supreme Court against any order in respect of said income, he shall either withdraw or submit an undertaking to withdraw such appeal or writ petition, in such form and manner as may be prescribed;

b) where the said person has initiated any proceeding for arbitration, conciliation or mediation, or has given any notice thereof under any law for the time being in force or under any agreement entered into by India with any other country or territory outside India, whether for protection of investment or otherwise, he shall either withdraw or shall submit an undertaking to withdraw the claim, if any, in such proceedings or notice, in such form and manner as may be prescribed;

c) the said person shall furnish an undertaking, in such form and manner as may be prescribed, waiving his right, whether direct or indirect, to seek or pursue any remedy or any claim in relation to the said income which may otherwise be available to him under any law for the time being in force, in equity, under any statute or under any agreement entered into by India with any country or territory outside India, whether for protection of investment or otherwise; and

d) such other conditions as may be prescribed.

The conditions as specified in Explanation to Fifth and Sixth Proviso to Section 9(1)(i) are prescribed by the CBDT in Rule 11UE. This Rule provides for the specified conditions which are required to be fulfilled in order to be eligible to claim relief under TLA 2021.

4. Conditions prescribed under Rule 11UE

Following conditions are required to be fulfilled by a declarant and interested parties:

a) Furnishing of undertaking in Form 1;

b) Withdrawal of all proceedings or appeals;

c) Withdrawal or waiver of all rights;

d) Waiver of right to seek any cost in respect of any proceedings;

e) Waiver of right in relation to any event which may otherwise be available;

f) Indemnifying India from any cost arising from filing claim after furnishing Form 1;

g) Refrainment from assisting any person to raise any claim or reward; and

h) Issue of public notice.

All the conditions mentioned above are required to be fulfilled cumulatively by the declarant. Further, the undertaking and indemnity bond from the declarant and all the interested parties should be duly authorised by all necessary corporate action, including but not limited to any board resolution or similar authorisation under applicable law. A copy of such board resolution and legal authorisation shall be furnished by the declarant.

4.1 Furnishing of undertaking in Form 1

The relief in case of concluded assessments shall be given only to those assessee who either withdraw or submit an undertaking to withdraw pending appeal or petition or arbitration. This undertaking is required to be furnished in Form 1 along with necessary attachments. Further, assessee is also required to furnish an undertaking from all the interested parties.

These interesting parties are as follows:

a) All the companies or entities in the entire chain of holding of the declarant till the ultimate holding company or entity;

b) Any person to whom the declarant has transferred any of its claims under any award, judgment, or court order pertaining to the relevant orders or under the relevant orders or granted any rights;

c) Any person other than the person mentioned above, in whose favour any interest has been created or assigned by the declarant or under any law or rules made thereunder with respect to any of the relevant order; and

d) Any person who has initiated any proceedings with respect to any of the relevant orders.

4.2 Withdrawal of all proceedings or appeals

The declarant and all the interested parties shall irrevocably withdraw, terminate, or discontinue all:

a) Appeals or applications or petitions or proceedings against the relevant order;

b) Proceedings for arbitration, conciliation or mediation, or notices thereof against the relevant order; and

c) Proceedings to enforce or pursue attachments in respect of any award, order or judgement or any other relief against the Republic of India or Indian affiliates with respect to the relevant order.

After such withdrawal, the declarant and all the interested parties shall furnish evidence thereof. They are also required to furnish a declaration in Form 1 to the effect that they shall not reopen or file any such proceeding in future.

4.3 Withdrawal or waiver of all rights

The declarant and all the interested parties shall irrevocably terminate, release, discharge, and forever irrevocably waive all rights, whether direct or indirect.

They shall also terminate any claims, demands, liens, actions, suits, causes of action, obligations, controversies, debts, costs, attorneys’ fees, court’s fees expenses, damages, judgments, orders, declaratory relief, and liabilities of whatever kind or nature at law, in equity, or otherwise, whether now known or unknown previously (or in future discovered), suspected or unsuspected, and whether or not concealed or hidden, which have existed or may have existed, or do exist or which hereafter can, shall or may exist in relation to any award, order, judgment, or any other relief against the Republic of India or Indian affiliates in connection with the relevant order or orders and furnish evidence thereof.

They are further required to furnish a declaration in the undertaking in Form 1 to the effect that they shall not reopen or file any such proceeding or initiate any such arbitration, conciliation, or mediation in future under any circumstances.

4.4 Waiver of right to seek any cost in respect of any proceedings

The declarant and all the interested parties shall irrevocably waive any right to seek or pursue any claim for costs in respect of any proceeding referred to above. This shall also include proceeding initiated by India to set aside the award, order or judgement, or any other relief issued in favour of the declarant or any of the interested parties.

4.5 Waiver of right in relation to any event which may otherwise be available

The declarant and all the interested parties shall terminate, release, discharge, and forever irrevocably waive any right, whether direct or indirect, any remedies, claims, demands, liens, actions, suits, causes of action, obligations, controversies, debts, costs, attorney’s fees, court’s fees, expenses, damages, judgments, orders, compensation, and liabilities of whatever kind or nature at law, in equity, or otherwise, whether now known or unknown, suspected or unsuspected, and whether or not concealed or hidden, which have existed or may have existed, or do exist or which hereafter can, shall or may exist, based on pursuit of any remedy or any and all claims, demands, damages, judgments, awards, costs, expenses, compensation or liabilities of any kind (whether asserted or un-asserted), in relation to any facts, events, or omissions occurring at any time in relation to taxation of income referred to in the fifth and sixth proviso to Explanation 5 to section 9(1)(i) or relevant order or orders, or any related award, judgment or court order, which may otherwise be available to the declarant or any of its interested parties.

4.6 Indemnifying India from any cost arising from filing claim after furnishing Form 1

The declarant and all the interested parties shall indemnify, defend, and hold harmless the Republic of India and Indian affiliates from and against any and all costs, expenses (including attorneys’ fees and court’s fees), interest, damages, and liabilities of any nature arising out of or in any way relating to the assertion or, bringing, filing or maintaining of any claim, at any time after the date of furnishing the undertaking in Form 1.

The declarant and all the interested parties shall furnish an indemnity bond to fully assume the risk of any omission or mistake with respect to identification and procurement of authorisations and undertakings from any related parties or interested parties as provided in the undertaking.

They shall secure the Republic of India and Indian affiliates from any claim related to any relevant order or orders, or in relation to any award, order, judgment, or any other relief against the Republic of India and Indian affiliates in connection with any relevant order or orders.

Related party means affiliates, predecessors, successors, all the companies or entities in the entire chain of holding till the ultimate holding company or entity, subsidiaries (whether direct or indirect), assignees, agents, shareholders (present and future), owners, directors, officers, those providing financing, and employees of the declarant.

4.7 Refrainment from assisting any person to raise any claim or reward

The declarant and all the interested parties shall refrain from facilitating, procuring, encouraging, or otherwise assisting any person from bringing any proceeding or claims of any kind related to any relevant order or orders, or in relation to any award, order, judgment, or any other relief against the Republic of India or Indian affiliates in connection with any relevant order or orders.

4.8 Issue of public notice

The declarant and all the interested parties shall notify by a public notice or press release that, by signing the undertaking in Form 1 or Part M of the Annexure to the undertaking in Form 1, as the case may be, any claims arising out of or relating to the relevant orders or any related award, judgment or court order, no longer subsist, and that such person or entity issuing the public notice has signed the undertaking, and that such undertaking includes an indemnity against any claims brought against the Republic of India or any India affiliate contrary to the undertaking, and that the declarant and all the interested parties shall furnish a copy of such public notice to the Republic of India.

5. Manner of furnishing of undertaking

The CBDT has notified Rule 11UF to prescribe guidelines for furnishing of undertaking in Form 1. The undertaking shall be furnished in the following manner:

5.1 Time limit to submit Form 1

Undertaking in Form 1 shall be submitted to the jurisdictional Pr. Commissioner or Commissioner within 45 days from the date of commencement of the Income-tax (31^st Amendment) Rules, 2021 which is 01-10-2021. Thus, Form 1 shall be filed by declarant by 14-11-2021.

5.2 Grant of certificate by Commissioner in Form no. 2

Once Form 1 has been furnished, the jurisdictional Pr. Commissioner or Commissioner shall, within a period of 15 days from the date of receipt of the said undertaking:

a) Grant a certificate in Form 2 accepting such undertaking;

b) Pass an order rejecting such undertaking if the undertaking in Form 1 is incorrect or incomplete or any part thereof or any of the attachments or evidence or the indemnity bonds provided therein or any of the authorisations is incorrect or incomplete or not furnished.

However, order rejecting the undertaking in Form 1 shall be passed after giving an opportunity to declarant.

5.3 Filing of intimation in Form 3

After grant of certificate in Form 2, the declarant and interested parties are required to fulfil conditions mentioned in Para 4 and an intimation to this effect shall be filed in Form 3 within 60 days of the date of receipt of certificate in Form 2.

The jurisdictional Pr. Commissioner or Commissioner may extend the period of 60 days for a further period not exceeding 60 days on application made by declarant.

If intimation in Form 3 has been filed after the expiry of 60 days or after expiry of extended period, such intimation shall be treated as an invalid, and it shall be deemed that declarant had never furnished the intimation in Form 3.

A declarant is not required to file intimation in Form 3 if the following conditions are satisfied:

a) The declarant or any of the interested parties has not filed any:

• • Appeal or application or petition or proceeding;
  • Arbitration, conciliation or mediation and no notices have been given thereof; or
  • Proceeding to enforce or pursue attachments in respect of any award, order or judgement or any other relief against the Republic of India or Indian affiliates.

b) If appeal or petition or proceeding etc., has been filed or notice has been given, then the declarant and all such interested parties must have irrevocably withdrawn all such appeals, applications, petitions, proceeding, arbitration, conciliation, and mediation. Further no appeal or application or petition or proceeding or arbitration or conciliation or mediation has been filed by the declarant or any such interested party against the Republic of India or any of the Indian Affiliates before the withdrawal of such arbitration, conciliation or mediation and evidence thereof has been furnished at the time of furnishing the undertaking in Form 1.

c) If appeal or petition or proceeding etc., had already been filed and have been disposed of, no further appeal or petition or proceeding etc. has been filed by the declarant or any such interested party against the Republic of India or any of the Indian Affiliates on or before the disposal of such arbitration, conciliation or mediation and evidence thereof has been furnished at the time of furnishing the undertaking in Form 1.

5.4 Grant of relief by Commissioner

After the receipt of intimation in Form 3 or grant of certificate in Form 2, the jurisdictional Pr. Commissioner or Commissioner shall pass an order granting relief in Form 4 or decline to grant relief after giving an opportunity of being heard to the declarant.

The jurisdictional Pr. Commissioner or Commissioner may decline to grant relief in the following circumstances:

a) The declarant has not fulfilled any of the conditions stipulated in Para 4;

b) The intimation in Form 3 or any part thereof is incorrect or incomplete;

c) The intimation in Form 3 has not been filed in a case other than that covered in Para 5.3;

d) Any of the attachments provided in Form 3 is incorrect or incomplete or has not been furnished;

e) Any of the evidence required to be furnished along with Form 3 is incorrect or incomplete or has not been furnished; or

f) The intimation in Form 3 submitted by the declarant is not duly authorised by all necessary corporate action, including but not limited to any board resolution or similar authorisation under applicable law or a copy of such board resolution or legal authorisation is incorrect or incomplete or not furnished by the declarant.

The order granting relief or declining to grant relief shall be passed by the jurisdictional Pr. Commissioner or Commissioner:

a) Within a period of 30 days from the date of receipt of Form 3 by the Pr. Commissioner or Commissioner, in cases where intimation in Form no. 3 has been furnished.

b) Within 30 days of the issue of Form 2, in cases covered in the Para 5.3.

5.5 Rejecting undertaking or decline relief

The Pr. Commissioner or Commissioner shall not pass an order rejecting the undertaking in Form 1 or declining relief without the approval of the Chief Commissioner.

Further, the Pr. Commissioner or Commissioner shall intimate the reasons for rejecting undertaking or declining to grant relief to the declarant and give him an opportunity of submitting a renewed undertaking or intimation in Form 3, as the case may be, within a further period not exceeding 30 days.

If the renewed undertaking or renewed intimation is not filed within 30 days then such undertaking or intimation shall be treated as invalid and it shall be treated that such person had never furnished the undertaking in Form 1 or intimation in Form 3, as the case may be.

The following period shall be excluded from the limitation period of 30 days allowed to declarant for submitting renewed undertaking or renewed intimation:

a) The period of 15 days mentioned in Para 5.2. for granting a certificate in Form 2 or passing an order rejecting such undertaking by the jurisdictional Pr. Commissioner or Commissioner; or

b) The period of 30 days mentioned in Para 5.4. for passing an order granting relief in Form 4 or declining relief, as the case may be, by the jurisdictional Pr. Commissioner or Commissioner.

5.6 Relief granted in Form 4 is binding on Assessing Officer

The directions of the jurisdictional Pr. Commissioner or Commissioner, in Form 4, shall be binding on the Assessing Officer who shall:

a) Give effect to such directions and pass an order and issue the refund, if any, and revoke attachments, if any, within a period of 15 days from the date of the receipt of such directions; and

b) File an application to withdraw any appeal or application or petition or proceeding filed by any Income-tax Authority or intimate the concerned person, where appeals or applications or petitions or proceeding has been filed by any other person representing the Republic of India, with respect to the specified orders covered under Form 4, within 60 days from the date of receipt of such directions.

5.7 Extension of limitation period to pass order by Pr. CIT or CIT

Where the period of limitation available to the Pr. Commissioner or Commissioner, for granting certificate or passing/issuing an order mentioned in Para 6.2 or Para 6.4-1., is less than 15 days, after excluding the period or extended period allowed to the declarant, then such remaining period shall be extended to 15 days.

5.8 Appeal against any direction or order

Any dispute with respect to the undertaking or part of the undertaking or indemnity bond specified Forms prescribed under these rules or in respect of any direction or order issued thereunder shall be governed by the relevant Indian laws and be decided in accordance with the procedures specified under the Act, under the exclusive jurisdiction of the relevant income-tax authorities, tribunals or courts in India, as the case may be, which are empowered to decide disputes under the Act.