Draft Notification of exception, modification and adaptation in respect of foreign company said to be resident in India under section 115JH of the Act

The Central Board of Direct Taxes (CBDT) on June 15, 2017 issued a Draft Notification (notification) vide F No. 370142/19/2017-TPL for exception, modification and adaptation in respect of foreign company said to be resident in India due to the place of effective management (POEM) being in India, under Section 115JH of the Income-tax Act, 1961 (the Act). This notification shall be deemed to have come into effect from April 1, 2017.

The CBDT has invited comments and suggestion on the Draft Notification from stakeholders and general public by June 23, 2017.

Introduction

A new chapter, Chapter XII-BC consisting of section 115JH in the Act was inserted with effect from FY 2016-17 which contains special provisions relating to the taxability of foreign companies regarded as resident in India due to the POEM being in India, in order to provide a transitional mechanism.

Section 115JH of the Act, inter alia, provides that the Central Government may issue a notification providing exemption, or modification to such companies with regard to computation of income; treatment of unabsorbed depreciation; set off or carry forward of losses; collection and recovery of taxes and transfer pricing provisions. The notification shall also provide certain conditions which need to be fulfilled by such company before it can avail of these relaxations. Further, if such conditions are not met by a company subsequently, the exemptions and modifications would be reversed and the tax officer would have the power to recompute the income chargeable to tax.

These provisions will apply to those foreign companies which become resident in India for the first time. Further, if the foreign company is held to be an Indian resident during an assessment, the provisions will also apply to the years subsequent to the ‘first year’, till the financial year ending on or before the completion of assessment proceeding.

Draft Notification

I. The draft notification proposes exception, modification and adaptation subject to which, provisions of the Act relating to computation of total income, treatment of unabsorbed depreciation, set off or carry forward and set off of losses, collection and recovery and special provisions relating to avoidance of tax shall apply to such foreign company who because of its POEM becomes resident in India in any financial year and such foreign company was not assessed as an Indian resident, as under:

1. If the foreign company is assessed to tax in the foreign jurisdiction as per the tax record in the foreign country:

– the written down value (WDV) of the depreciable asset as on the 1st day of the financial year shall be adopted as the opening WDV for the relevant financial year and

– the brought forward loss or unabsorbed depreciation shall be determined year wise as on the 1st day of the financial year in which it is said to be resident in India. The said losses or unabsorbed depreciation shall be deemed to be brought forward on the 1st day and shall be allowed to be set off and carried forward as per the Act

2. If the foreign company is not assessed to tax in the jurisdiction where it is based, then the following values shall be adopted as per the books maintained in accordance with the laws of that foreign jurisdiction:

– the WDV of the depreciable asset and

– the brought forward loss or unabsorbed depreciation as on the 1st day of the financial year in which it is said to be resident in India. The said losses or unabsorbed depreciation shall be deemed to be brought forward on the 1st day and shall be allowed to be set off and carried forward as per the Act

3. In a case where the accounting year does not end on March 31, the foreign company shall be required to prepare profit and loss account and balance sheet:

– for the period starting from the date on which the accounting year immediately following the said accounting year begins, to March 31 of the year immediately preceding the period beginning with April 1 and ending on March 31 during which the foreign company has turned resident, and

– for succeeding periods of twelve months, beginning from April 1 to March 31, till the year the said foreign company remains resident in India on account of its POEM.

Example:

Scenario 1: A foreign company turns resident on account of its POEM in India in FY 2016 -17 and the accounting year ends on December 31, 2016, then the foreign company shall be required to prepare the profit and loss account and balance sheet for the period January 1, 2016 to March 31, 2016.

Scenario 2: A foreign company turns resident on account of its POEM in India in FY 2016 -17) and the accounting year ends on June 30, 2016, then the foreign company shall be required to prepare the profit and loss account and balance sheet for the period July 1, 2015 to March 31, 2016.

4. In a case of carry forward of loss, where the accounting year does not end on March 31; the period starting from the date on which the accounting year immediately following the said accounting year begins to March 31 of the year immediately preceding the period beginning with April 1 and ending on March 31 during which the foreign company has turned resident is:

♠ less than six months, it shall be included in that accounting year;

♠ equal to or more than six months, than that period shall be treated as a separate accounting year.

Example:

Scenario 1: A foreign company turns resident on account of its POEM in India in FY 2016 -17 and the accounting year ends on December 31, 2016, then the foreign company shall be required to prepare the profit and loss account and balance sheet for the period January 1, 2016 to March 31, 2016. However, this period is less than six months as noted above, hence, the foreign company will have to prepare its accounts from the period January 1, 2015 to March 31, 2016.

Scenario 2: A foreign company turns resident on account of its POEM in India in FY 2016 -17) and the accounting year ends on June 30, 2016, then the foreign company shall be required to prepare the profit and loss account and balance sheet for the period July 1, 2015 to March 31, 2016, since this period is more than six months, as noted above, the period would remain the same for preparation of accounts.

5. Where more than one provision of Chapter XVII-B of the Act (relating to deduction of tax at source/ withholding tax) applies to the foreign company both in the status of a foreign company and as a resident in India on account of its POEM, it is proposed that the provision as applicable to the foreign company shall apply.

6. Section 195(2) of the Act (relating to application to Assessing Officer for lower rate of TDS) shall apply in such manner so as to include payment to the foreign company.

7. Once the foreign company is held to be resident in India on account of its POEM in India, it shall be entitled to relief or deduction of taxes paid as per section 90 (agreement with foreign countries – Bilateral relief under the Double Tax Avoidance Agreement) or section 91 (countries with which no agreement exists – Unilateral relief) of the Act.

8. The rate of exchange for conversion of foreign currency into rupees, wherever applicable, shall be as per Rule 115 of the Income-tax Rules, 1962.

II. The above exceptions, modifications and adaptations shall be applicable:

♠ where a foreign company is said to be resident in India in any financial year on account of its POEM being in India and

♠ where such foreign company was not resident in India in any of the financial years preceding the said financial year,

then for the purposes of taxation of said foreign company; all transactions of the said foreign company with any other person or entity under the Act shall not be altered only on the ground that the said foreign company has turned resident on account of its POEM being in India

III. Further, subject to the above, the foreign company shall continue to be treated as a foreign
company even if it is said to be resident in India on account of its POEM being in India, and all the provisions applicable to a foreign company shall apply accordingly. However, the provisions applicable to a company resident in India will apply.

Thus, the rate of income-tax in case of foreign company (i.e. 40%) shall remain the same, even though the residency status of the foreign company changes from non-resident to resident on the basis of POEM.

Our Comments:

The provisions of the Notification seem to be very onerous and obligatory on foreign companies which will be treated as resident company of India under section 6(3) of the Act due to its POEM being in India. Though global income of such companies will get taxable in India, the CBDT needs to consider why the higher rate of taxation would continue to apply to such foreign companies. The CBDT may need to consider how to grant relief for computation of income to such foreign companies, as assessment would take place after the end of the year at a much later date.

Disclaimer

The information contained herein is of a general nature and is not intended to address the circumstances of any particular individual or entity. Although we endeavor to provide accurate and timely information, there can be no guarantee that such information is accurate as of the date it is received or that it will continue to be accurate in the future. No one should act on such information without appropriate professional advice and after a thorough examination of the particular situation.

Also Read- CBDT issues Final Notification on POEM – Section 115JH of Act

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