Rajendra Nayak Aastha Jain The Andhra Pradesh High Court (HC) recently ruled on the issue of taxability of indirect transfers of shares of an Indian company in the case of Merieux Alliance, France (MA) and Groupe Industriel Marcel Dassault (GIMD) (collectively referred to as taxpayers) [TS-57-HC-2013(AP)]. Taxpayers, tax residents of France, held shares in ShanH, a French company which in turn held shares of an Indian company. ShanH held no assets other than shares in the Indian company. The taxpayers transferred shares of ShanH to Sanofi Pasteur Holding (Sanofi), another French company. As per Article 14(5) of the India-France treaty, capital gains arising to a French tax resident from alienation of shares representing a participation of at least 10% in a company resident in India may be taxed in India. The taxpayers had earlier approached the authority for advance ruling (AAR) which held that the transfer of shares of ShanH was a scheme for avoidance of Indian tax and that the capital gains arising from the indirect transfer of shares of an Indian company was liable for tax in India, going by a purposive interpretation of the India-France treaty. This ruling was rendered before the decision of the Supreme Court of India in the case of Vodafone International Holdings BV (341 ITR 1) and the retrospective amendment to the Indian Tax Laws (ITL) on taxation of indirect transfers of Indian assets by Finance Act 2012. Aggrieved by the ruling of the AAR, the taxpayers filed a writ petition before the HC.
March 26 2013