To address the unorganised pooling of investments, Securities and Exchange Board of India (Sebi) in 2012 introduced a regulatory framework called Alternative Investment Fund (AIF) Regulations. Recently, there has been an exponential growth in AIFs with over 1035 AIFs registered with Sebi till date. The major reason investors opt for the AIF route is the ability to invest in varied sectors, coupled with the liquidity quotient. Initially, only a portion of the capital commitment is to be paid upfront and the balance amount is to be paid in installments as and when a drawdown is triggered.
There are three categories of AIFs wherein investors can choose to invest, depending upon the type of sector they want to invest in:
Category I AIFs are permitted to invest in start-ups or early-stage ventures or social ventures.
Category II AIFs are funds that do not fall under the category I and III and are typically private equity or debt fund.
Category III AIFs employ diverse or complex trading strategies and are generally hedge funds or funds-making short-term investments.
The tax treatment differs depending on the category of AIFs. Since Category I and II AIFs are granted pass-through status, investors are liable to pay tax. Category III AIFs are required to discharge the tax liability on the income earned, and so, investors are exempted from paying tax on income earned from such AIFs.
The tax treatment differs depending on the category of AIFs. Since Category I and II AIFs are granted pass-through status, investors are liable to pay tax. Category III AIFs are required to discharge the tax liability on the income earned, and so, investors are exempted from paying tax on income earned from such AIFs.
Extension oftax pass-through status to all Category III AIFs.
The Finance Act, 2021 has already granted tax pass-through status to certain Category III AIFs incorporated in the IFSC subject to the fulfilment of specified conditions. It is now expected to extend the benefit to all Category III AIFs, to bring parity in taxation.
The concessionaltax rate for investors in debt AIFs
Currently, investors investing through FPI in certain specified debt instruments are taxed at a concessional rate of 5% on the interest income. It is expected that the same concession would be extended to non-resident investors in all Categories of AIFs making similar investments. This will bring tax parity to non-resident investors investing in both routes.
Exemption from the applicability ofIndirect Transfer Provisions to Category III AIFs based on IFSC
As per the Indian tax laws, the transfer of shares or interest in an offshore company that derives its value, whether directly or indirectly, substantially from assets located in India is subject to Indirect Transfer Provisions in India. In the context of these provisions, there is a clarification in place for the nonapplicability of such provisions for non-resident investors investing in Category I or II AIFs. Except for certain Category III AIFs in IFSC, generally, Category III AIFs are taxed at the AIF level and investors are exempted from tax on income from the said AIF. If an investor in such a taxable AIF is a feeder fund, then the investor in that feeder fund could be exposed to tax liability as a result of indirect transfer provisions.
To bring in parity for AIFs in an IFSC, it should also be clarified that the Indirect Transfer Provisions are not applicable for non-resident investors, directly or indirectly, in all Category III AIFs located in the GIFT IFSC.
Exemption from tax return filing for non-residents in certain Category III AIFs based in IFSC
The government has exempted non-resident investors from obtaining PAN if they do not have any other India-sourced income other than from the AIF based in the IFSC. Such investors should also be exempted from tax return filing compliances as the income is already taxed at the fund level and they do not have any other income in India.
The AIF segment has seen a 50% Compounded Annual Growth Rate (CAGR) during the financial year 2022. The Government needs to address the concerns suitably to keep up with the momentum of the dynamic and evolving AIF industry.
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