Tax and Regulatory update for Foreign Portfolio Investors (FPI) and International Financial Services Centre (IFSC)- October to December 2020

Regulatory Updates – FPI

1. Procedural Guidelines for Proxy Advisors

The Securities and Exchange Board of India (‘SEBI’) in addition to the circular dated 3 August 2020¹ and 27 August 2020² has issued another circular dated 31 December 2020³ wherein clause 1(c) of the procedural guidelines for proxy advisors has been modified. Originally, the clause 1(c) casted a responsibility on the proxy advisors to alert clients, within 24 hours of receipt of information, about any factual errors and impending material revisions to their report. Now, the modified guidelines also state that any material revision in the report of the proxy advisor should be communicated to the client within the 72 hours of receipt of such information.

Further, clause 1(c) [as discussed above] and clause 1(e) [regarding guidelines for sharing of reports and comments thereon from the companies] of the procedural guidelines shall be effective from February 1, 2021.

Regulatory Updates –IFSC

1. Market Access through Authorised Persons

Based on various representations from stock exchanges and market participants based in the IFSC, International Financial Services Centres Authority (‘IFSCA’) vide Circular⁴ permitted stock brokers/ trading members (registered with IFSCA and / or SEBI) of the stock exchanges to provide market access to investors through Authorized Persons (‘AP’) based in foreign jurisdictions.

The Circular also lays down a regulatory framework governing the market access through the APs. Moreover, the Circular grants powers to stock exchanges and stockbrokers to prescribe requirements/ guidelines in addition to the regulatory framework laid down in the Circular subject to condition that those guidelines are not in any way providing relaxations in the framework specified by the IFSCA.

The key aspects of the regulatory framework are mentioned below:

• AP has been defined as any person - individual, partnership firm, LLP or body corporate – who is appointed as such by a stock-broker / trading member and who provides access to the trading platform of a stock exchange as an agent of the stock broker. APs can be appointed after obtaining specific prior approval from the concerned stock exchange.
• Eligibility Criteria: The Circular lays down certain eligibility criteria for APs, the key criteria being citizenship of India or any of the FATF compliant jurisdictions (for individuals) and incorporation in the IFSC / any of the FATF compliant jurisdictions / jurisdiction governed by an FATF style regional body (for partnership firm, LLP or a body corporate).
• The stockbroker shall be responsible for all acts of omission and commission of the AP.
• The AP shall not receive or pay any money or securities in its own name or account. All receipts and payments of securities and funds shall be in the name or account of the stockbroker.
• The AP shall receive his remuneration for his services only from the stockbroker and he shall not charge any amount from the clients.
• A person shall not be appointed as an AP by more than one stockbroker on the same stock exchange

In addition to the above, the regulatory framework also provides for a procedure for appointment, withdrawal of approval, obligations of the stockbroker, and obligations of the stock exchange.

2. Notification of certain services as a ‘Financial Product’ under IFSCA Act, 2019

The Central Government has notified⁵ aircraft leasing and Global In-House Centres (‘GIC’), as a ‘financial service’ to provide services relating to financial products and financial services.

In respect of aircraft leasing, the Notification states that aircraft leasing includes operating / financial lease or a hybrid of operating and financial lease of an aircraft or a helicopter (including engines or other parts) as a financial product.

In respect to the GIC, please refer to our subsequent update in this alert.

3. Regulations notified for recognition and operation of Global In-House Centres in IFSC

As discussed in the preceding update, the Central Government had earlier notified⁶ ‘GIC’, as a ‘financial service’ to provide services relating to financial products and financial services. Thereafter, the IFSCA published the IFSC Authority (Global In-House Centres) Regulations, 2020 (‘Regulations’)⁷ in order to provide a framework for recognition and operation of the GIC units set-up in the IFSC.

The regulations define GIC as a unit set up for providing support services, directly or indirectly, to entities within its financial services group, for carrying out a financial service in respect of a financial product. This includes provision of support services to entities such as banks and non-banking financial companies, financial intermediaries, investment banks, insurance companies, re-insurance companies, actuaries, brokerage firms, funds, stock exchanges, clearing houses, depositories, and custodians.

The regulations provide for eligibility conditions for setting-up a GIC unit, registration process, permissible services and activities and other conditions required to be complied with.

The IFSCA in its recent Circular⁸ has also prescribed an application form for set-up of a GIC, annual membership fees based on employee strength and certain reporting requirements, pursuant to the aforementioned Regulations.

For detailed discussion on the framework, please refer to our alert on the same. Kindly click here to read it.

4. Amendment of guidelines pertaining to AIF’s in IFSC

The International Financial Services Authority vide its Circular dated December 09,2020⁹ has amended certain norms pertaining to AIF’s in IFSC. The key aspects of the amended norms are:

• Leverage: An AIF in IFSC may borrow funds or engage in leveraging activities subject to following conditions:

• The maximum leverage by the AIF, along with the methodology for calculation of leverage, shall be disclosed in the placement memorandum;
• The leverage shall be exercised subject to consent of the investors;
• The AIF employing leverage shall have a comprehensive risk management framework appropriate to the size, complexity and risk profile of the fund.

• Investments

• An AIF in IFSC shall be permitted to co-invest in a portfolio company through a segregated portfolio by issuing a separate class of units. However, the AIF to ensure that such investments by segregated portfolios shall not be on terms more favourable than common portfolio and appropriate disclosure of creation of segregated portfolio are made in placement memorandum.
• An AIF in IFSC shall be permitted to invest in another AIF registered with SEBI.
• An AIF in IFSC shall not be required to comply with the investment diversification requirements provided under regulation 15(1)(c) and 15(1)(d) of the SEBI (Alternative Investment Funds) Regulations, 2012. However, appropriate disclosures are required to be made in the placement memorandum and the investments made by AIF shall be in line with the risk appetite of the investor

5. Regulations approved for banking and investment activities in the IFSC

The IFSCA approved and passed the International Financial Services Centres Authority (Banking) Regulations, 2020¹⁰ (‘Banking Regulation’) which lay down major principles for banking operations for an IFSC Banking Unit (‘IBU’) set-up at the IFSC.

The key aspects of the Banking Regulations are listed below:

• Laying down the requirements for setting up the IBUs
• Permitting persons resident outside India (having net worth not less than USD 1 mn) to open foreign currency accounts in any freely convertible currency at the IBUs
• Permitting persons resident in India (having net worth not less than USD 1mn) to open foreign currency accounts in any freely convertible currency at the IBUs to undertake any permissible current account or capital account transaction or any combination thereof under the Liberalised Remittance Scheme (‘LRS’) of the Reserve Bank of India.
• Laying down the permissible activities of IBUs including credit enhancement, credit insurance, and sale, purchase of portfolios, engage in factoring and forfaiting of export receivables and undertake equipment leasing, including aircraft leasing.
• Permitting the IFSCA to determine business that a Banking Unit may be permitted to conduct in INR with persons resident in India and persons resident outside India, subject to settlement of the financial transaction in relation to such business in freely convertible foreign currency.

Apart from the above, the banking regulations also lay down the rules for general prudential requirements including maintenance of ratios, exposure ceiling and reserve requirements, permitted activities, and other operational requirements.

6. Directions for implementation of IFSC (Banking) Regulations, 2020

IFSCA vide Circular dated 04 December 2020¹¹ has notified various directions for implementation of the above banking regulations. Key provisions stated in the circular are:

• IFSCA has adopted various directions/circulars/guidelines issued by the RBI, to be made applicable to Banking Units in IFSC
• BUs shall be required to provide adequate resources, including infrastructure and manpower, on an ongoing basis, commensurate with the size and nature of their operations being conducted at IFSCs
• A parent bank shall provide a minimum initial capital of USD 20mn for the purpose of starting operations, which shall be maintained on an unimpaired basis at all times;
• BU’s to maintain balance sheet in USD and ensure that accounts of BU are kept distinct from its parent Bank;
• BU may borrow funds, including in foreign currency, from its parent, domestic/overseas branches of Indian Banks and a person resident outside India. Further, borrowings from Person Resident in India shall be subject to the provisions of FEMA,1999;
• BU may accept deposits from or deploy funds to person resident in India or person resident outside India. However, the acceptance of deposits and deployment of funds with person resident in India shall be subject to the provisions of FEMA,1999;
• BU may also act as a lender of INR Denominated Loans to Person Resident in India and Person Resident Outside India. However, the lending of such loan to Person Resident in India shall be subject to provisions of FEMA,1999.

7. Depository Receipts in IFSC

IFSCA has issued a regulatory and compliance framework for issue of depository receipts in IFSC on 28 October 2020¹².

• Depository Receipt (DR) means a negotiable financial instrument representing underlying securities of a company listed in another jurisdiction.
• A company whether incorporated in India or in a foreign jurisdiction shall be eligible to issue depository receipts only if the issuance of DRs is in accordance with the laws and regulations of the home jurisdiction.
• The framework also lays down certain conditions in respect of the issuers of such DRs as well as the underlying securities.
• DRs are required to be freely negotiable and in dematerialised form.
• The framework also lays down conditions are procedures for the Initial Public Offer, allotment, listing, filing of offer document, continuous obligations and disclosure requirements after listing of DRs etc.
• Stock exchanges may permit trading of DR listed on a stock exchange in India or a foreign jurisdiction subject to following:
  • Such trading of DR, without listing on stock exchange is in accordance with laws and regulations in which the DR and underlying securities are listed; and
  • Stock exchange to ensure clearing and settlement of DR.
• Such DRs are permitted to trade without listing and accordingly, it shall not be required to comply with the aforementioned provisions. Such framework is available to stock exchange initially till December 31,2023.  

8. OTC Derivatives at IFSC

Vide Circular¹³ issued by IFSCA, Over-The-Counter (‘OTC’) Derivatives transaction has been permitted in IFSC. For the same, the IFSCA has adopted the Comprehensive Guidelines on Derivatives¹⁴ (as amended from time to time) issued by the Reserve Bank of India. However, the same is subject to modifications as listed in the aforementioned Circular.

The modifications include amendments in paras for defining the purpose, eligibility criteria, broad principles for undertaking derivatives, and permissible derivative instruments. The Circular also lays down other additional directions required to be complied with.

9. Membership of stock exchanges and clearing corporations in IFSC by foreign entities

In order to enhance the participation of regulated entities from foreign jurisdictions in the IFSC, the IFSCA has issued a Circular¹⁵ permitting eligible foreign entities to set up a branch office in the IFSC and operate as a stock broker and clearing member subject to approval by the IFSCA.

Following are the conditions for membership as a stockbroker/ clearing member:

• Eligible entity should be from an FATF compliant jurisdiction.
• The entity should be a stockbroker/ clearing member regulated by a securities market regulator in its home jurisdiction.
• The entity has adequately ring fenced the operational, technology and financial aspects of its branch office in the IFSC from its overseas operations.
• The entity should obtain a certificate of registration from the IFSCA prior to commencement of operations as a branch office. No separate registration is required for a stockbroker registered with the IFSCA to act as a clearing member in the IFSC.
• The branch office of the entity is required to have a designated director/ compliance officer for ensuring timely execution of compliance and regulatory reporting functions.
• The branch office shall comply with the prescribed net-worth and capital requirements periodic reporting requirements.
• In case of the stockbroker, the trading servers of the entity to be located within the IFSC.
• The entity shall comply with the necessary rules, bye-laws and guidelines prescribed by the IFSCA from time to time.

Additionally, the Circular also provides for the following guidelines:

• The eligible entities to obtain a membership of respective stock exchange/ clearing corporation.
• The stock exchange/ clearing corporation shall be required to forward the application of admitted members to the IFSCA for obtaining a certificate of registration. No entity shall deal in securities without obtaining a certificate of registration from the IFSCA.
• The stock exchanges and clearing corporations shall put in place appropriate integrated systems to facilitate seamless online registration applications.

10. Instructions and clarification on various circulars issued under the Banking Regulations

In response to queries/ suggestions received from banking units, the IFSCA issued a Circular¹⁶ dated 24 December 2020 providing necessary instructions and clarifications on IFSC (Banking) Regulation, 2020 – Directions for implementation, OTC Derivatives at IFSCs, IFSCA (Deposits) Directions, 2020 and Directions on business in foreign currency at IFSCs.

Tax Updates

1. Income earned by specified funds in IFSC

• Expanding the ambit of exempt income

The current provisions of Income-tax Act, 1961 (‘IT Act’) exempt income from transfer of capital asset, being certain bonds, global depository receipts, rupee denominated bonds of Indian company or derivatives earned by ‘Specified Funds’. The Specified Funds are defined as ‘Category III Alternative Investment Funds’ located in IFSC, wherein all units (other than units held by sponsor or manager) are held by non-residents and derive its underlying income solely in convertible foreign exchange.

The Taxation and Other Laws (Relaxation and Amendment of Certain Provisions) Act, 2020 proposes to extend such exemption to the following incomes earned by Specified Funds:

• Income from transfer of securities (other than shares in a company resident in India);
• Income from securities issued by a non-resident (other than a permanent establishment of a non-resident in India) and where such income otherwise does not accrue or arise in India;
• Income from securitisation trust which is chargeable under the head Business and Profession.

The above exemptions are available to the extent such income attributable to units held by non-resident (not being the permanent establishment of a non-resident in India) and computed in the prescribed manner.

• Exemption in the hands of a unit holder

The Act proposes to provide for exemption of any income accruing or arising or received by a unit holder from Specified Funds aforesaid. The Bill also proposes to exempt income arising to the unitholder from transfer of units of Specified Funds.

• Exemption from applicability of Alternate Minimum Tax provision

Alternate Minimum Tax (‘AMT’) provisions are applicable to every taxpayer (other than Corporate taxpayer) if the tax under normal provision is less than 18.5% of adjusted total income. The Act proposes to exempt Specified Funds from the applicability of AMT provisions.

• Special tax rates

The Act proposes to extend the beneficial tax regime currently available to Foreign Portfolio Investors to Specified Funds. The tax rates as applicable to Specified Funds under this regime are tabulated hereunder:

Nature of income	Tax Rate*
Income in respect of securities#	10%
Short term capital gains from specified equity shares/instruments (Section 111A of the IT Act)	15%
Short term capital gains from other securities	30%
Long term capital gains from securities	10%

 

 

 

 

 

 

 

 

*excluding surcharge and education cess

# other than units referred to in section 115AB of the IT Act.

The above tax rates will apply only to income attributable to units held by non-residents (not being the permanent establishment of a non-resident in India) computed in the prescribed manner.

These proposals will apply from fiscal year 2020-21 onwards.

• Withholding of tax on income from securities

The Act proposes to cast responsibility on the person making payment towards income from securities (other than capital gains arising from transfer of securities) to the Specified Funds, to withhold tax at the rate of 10%. However, the tax withholding is not required in respect of exempt income.

This amendment shall be made effective from 01 November 2020.

2. Surcharge on Dividend Income of Foreign Portfolio Investors

The Finance Act 2020 abolished Dividend Distribution Tax regime. With this, the dividend distributed and paid by domestic companies to both resident and non-resident shareholders are now subject to tax withholding. Further, as a measure of relief, the higher surcharge rate of 37% was restricted to 15%. However, inadvertently, this benefit of restricted surcharge rate of 15% was not passed on to certain non-resident shareholders like foreign portfolio investors (FPIs), Category I/II Alternate investment funds, etc.

The Act now proposes to extend the restricted rate of surcharge of 15% to FPIs (being individuals, Hindu Undivided Family, Association of Person, Body of Individuals or Artificial Juridical Persons). The revised surcharge rate for dividend income is tabulated hereunder:

Income	Surcharge
Up to INR 05mn	No Surcharge
Above INR 05mn up to INR 10mn	10%
Above INR 10mn	15%

 This amendment shall be made effective from fiscal year 2020-21

Jurisprudence

1. Delhi ITAT allows Tax Treaty Benefit on Dividend Distribution Tax

• Recently, the Finance Act 2020 abolished the Dividend Distribution Tax (DDT) regime and brought in the classical system of taxation. Prior to the abolishment, under the erstwhile DDT regime, Indian Companies were required to pay DDT at applicable rates under section 115-O of the IT Act in respect of dividend declared, distributed or paid by them. Since most of the Tax Treaties provided for concessional rate of 5%/10%/15% of the gross amount of dividend, Indian Companies have been requesting the tax officer to cap the rate of DDT, in respect of dividends paid to their overseas investor(s), at the Tax Treaty rate (i.e. 5%/10%/15% as the case may be). In this regard the Delhi Tax Tribunal (‘ITAT’)¹⁷ in a recent judgement has allowed the benefit of Tax Treaty qua the DDT Rate.
• The Delhi ITAT held that the tax rates specified in the India-Germany Tax Treaty in respect of dividend must prevail over DDT rate. The Delhi ITAT made the following observations:
  • Hon’ble Bombay High Court in case of Godrej and Boyce Manufacturing Company Limited 328 ITR 81 (Bom) has unequivocally held that DDT is tax ‘on the company’ and not ‘on the shareholder’.
  • The burden of DDT falls on the shareholders rather than on the company, as the amount of distributed profits available for shareholders stands reduced to the extent of DDT levied.
  • Memorandum to Finance Bills 1997 and 2003 clearly establish that levy of tax on the company was driven by administrative considerations rather than legal necessity and further emphasis on the fact that levy is for all intents and purposes, a charge on dividends.
  • Finance Bill, 2020 has removed section 115-O of the IT Act. In the Memorandum of Finance Bill 2020, it has been mentioned that incidence of tax is on the payer company and not on the recipient where it should normally be as the dividend is income in the hands of the shareholders and not in the hands of the company.
  • A conjoint reading of the Memorandum to Finance Bills 1997, 2003 and 2020 would show that levy of DDT was merely for administrative conveniences and withdrawal of DDT is keeping in mind that revenue was across-the-board, irrespective of marginal rate, at which recipient is otherwise taxed.
  • DDT is levy on the dividend distributed by the payer company, being an additional tax is covered by the definition of ‘Tax’ as defined under section 2(43) of the IT Act which is covered by the charging section 4 of the IT Act and charging section itself is subject to the provisions of the Act which would include section 90 of the IT Act.
  • The India-Germany Tax Treaty was notified on 29 November 1996 whereas section 115-O of the IT Act was inserted in the Act by Finance Bill, 1997 which means that the Germany Tax Treaty is pre-dated to the amendment.
  • Reliance was placed on Delhi High Court’s decision in case of New Skies Satellites 382 ITR 114 (Del.) wherein it was held that amendment in the domestic tax law cannot be allowed to have the same retroactive effect on an international instrument effected between two sovereign states prior to such amendment.
  • As the India-Germany Tax Treaty was notified before the introduction of section 115-O of the IT Act, the tax rates specified in the Germany Tax Treaty in respect of dividend must prevail over DDT.
  • Article 10.4 of the India-Germany Tax Treaty specifies that clause 1 and 2 (which provides for tax rate of dividend) will not be applicable if the beneficial owner of dividend has Permanent Establishment in India.

2. Delhi ITAT holds exceptions to indirect transfer provisions to have retrospective effect

Delhi ITAT¹⁸ in a recent judgement has held that Explanations 6 and 7 to Section 9(1)(i) of the ITA Act, relating to exceptions to the provisions of Indirect Transfer are applicable retrospectively. The Delhi ITAT has held that since Explanation 5 (indirect transfer provisions) has been given retrospective effect and Explanations 6 and 7 have been inserted in furtherance of the object of insertion of Explanation 5 the aforesaid explanations cannot be read in isolation, but have to be tagged along with Explanation 5 such that both the explanations have to be given a retrospective effect.

The taxpayer was a tax resident of Singapore engaged in the business of incubation of companies. During course of its business, the taxpayer made investment in a Singapore based company 'A'. The taxpayer sold its entire shareholding in 'A' to 'J' an Indian company. The Indian company J withheld taxes at source at 43.26% of the entire sale consideration. However, the taxpayer was of the view that as per exceptions to the provisions of indirect transfer as provided in Explanation 7 (i.e. no right of management or control) the transaction was not taxable in India.

The Tax Officer rejected taxpayer’s claim contending as under:

• Explanation 7 was introduced via Finance Act, 2015 and shall be applicable from April 1, 2016. The said explanation is not applicable to the cases of assessment years prior to AY 2016-17 since it is made effective only from 01 April 2016.
• If the legislature has intentionally made certain provisions effective from specific date, there should not be any speculation or doubt about its applicability from any past date.

The Delhi ITAT ruled in favour of the taxpayer and stated the following:

• Explanation 5 was introduced by Finance Act of 2012 with retrospective effect from 01 April 1962 which states that any share or interest in a company registered or incorporated outside India deriving its value substantially from assets located in India, shall be deemed to be situated in India.
• Further, pursuant to decision of the Delhi High Court in the case of DIT vs Copal Research Ltd (2014) (49 taxmann.com 125), the Act was amended and Explanations 6 and 7 were introduced providing exceptions to the provisions of indirect transfer.
• ITAT held that since both the explanations 6 and 7 start with ‘For the purposes of this clause’, they have to be read with Explanation 5 to understand the provisions of section 9(1)(i) of the Act. Explanation 5 has been given retrospective effect and Explanations 6 and 7 have been inserted in furtherance of the object of insertion of Explanation 5 and accordingly, these two explanations cannot be read in isolation, but have to be tagged along with Explanation 5.

3. Gift of shares of subsidiary as a part of corporate restructuring to be treated as transfer attracting Capital Gains Tax:¹⁹

The taxpayer was an Indian company acquired 100% shareholding in Redington Gulf FZE (‘RFZ’) in 2004. In 2008, the taxpayer set up a wholly owned subsidiary in Mauritius ‘RM’, which in turn set up a wholly owned subsidiary in Cayman Island ‘RC.’ The taxpayer transferred its entire shareholding in RFZ to RC by way of gift. Due to gifting of such shares, RFZ became the step-down subsidiary of the taxpayer and RM. Within a week, a private equity investor acquired 27.17% stake in RC. The taxpayer claimed such gift of shares as eligible for exemption as per Section 47(iii) of the Act, thereby not liable to capital gains tax in India.

The Tax Officer contended as under:

• The transfer of shares to RC were a part of a business restructuring plan of the group. The Tax Officer referred to the Board Minutes and Deed of Share Transfer and inferred that the word “gift” had not been used. The documents indicated that the transaction is rather a business restructuring.
• Further, the admission of the CFO of the Company that the cross-border transaction has allowed the Company to derive commercial benefits indicate absence of voluntariness in the transaction indicates that it does not amount to gift.
• The Tax Officer contended that the entire transaction of transfer of shares by gift was to avoid capital gains tax and erode the tax effect in India.

The Madras High Court ruled in favour of the Tax Authorities and held as under:

• The Court referred to the definition of “gift” Section 122 of the Transfer of Property Act, 1882 which prescribes that the essential elements of a gift includes Absence of consideration; The donor; The donee; To be voluntary; The subject matter; Transfer; and The acceptance.
• The Court held that on a reference to the minutes of the Board Meeting and Share Transfer deed it can be inferred that voluntary consent of the donor was missing because the physical act in proving the transfer of shares and execution of the deed of share transfer should coincide with the mental act—that is intention to make the gift.
• The entire transaction was so structured to accommodate the third-party investor with the element of voluntariness absent in the entire transaction.
• Accordingly, the transaction shall not qualify as gift and provisions of Section 45 of the Act shall apply thereby attracting Capital Gains Tax.

Further, the investment by a PE Fund represents the best estimate for the market value of shares of RC. Accordingly, the price at which the investment was made by the PE investor shall be deemed to be the basis for computing the value of long term capital gains chargeable to tax in India.

Subscribe to receive the latest BDO News and Insights

Please fill out the following form to access the download.