Issue/Justification

Clause 16 of the Form 3CEB requires the reporting of particulars in respect of the purchase or sale of marketable securities, issue and buyback of equity share, optionally convertible/ partially convertible/ compulsorily convertible debentures/ preference shares. Bombay High Court in the case of “Vodafone India Services Pvt. Ltd. vs. UOI (Dated – 10th October 2014)” has held that Chapter X of the Income Tax Act 1961 i.e. Transfer Pricing Provision does not apply on any transaction involving issue/receipt of share capital money (including issued on premium) as no income/expense will arises from such transaction.

Government of India in its PIB dated 28th January 2015, has accepted the order of Bombay High Court in the case of Vodafone and came to the view that the transaction involved is on capital account and there is no income to be chargeable to tax. So, applying any pricing formula is irrelevant.

However even after the acceptance of the Bombay High Court Judgment by Government of India, Share Capital transaction is still required to be reported /justified in Form 3CEB.

Suggestion

In view of Vodafone India Services Pvt. Ltd. vs. UOI (Dated – 10th October 2014)” and PIB dated 28th January 2015 issued by CBDT, it is suggested that clause 16 of Form No. 3CEB should be amended so as clarify that share Capital transaction is not required to be reported /justified in Form 3CEB.

Source-  ICAI Pre-Budget Memorandum–2018 (Direct Taxes and International Tax)

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