IPOs, bonus issue, share gifts exempted from capital gains tax


 India on Tuesday amended its income tax law to exempt genuine equity investments through initial public offerings (IPOs), bonus or rights issues by a listed company from long-term capital gains tax even if no securities transaction tax (STT) was paid.

The amendment provides that "the condition of chargeability to STT shall not apply to all transactions of acquisitions of equity shares entered into on or after the first day of October 2004," a Union Finance Ministry release said here, notifying three types of transactions where the provision shall apply.

The three transactions attracting the provision are "acquisition of listed shares in preferential issues of a company whose shares are not frequently traded in a recognised stock exchange, acquisition of existing listed equity shares in a company not through a recognised stock exchange of India and acquisition of shares of a company during the period of its delisting," it said.

For these three categories, payment of STT will be mandatory to avail benefit of capital gain exemptions.

The amendment has been introduced after the Income Tax Department detected that shell companies were being created by entering into fake transactions, and unaccounted income was being routed into these firms to avail long-term capital gains benefit. It has been designed to spare genuine transactions.

"In order to curb the practice of declaring unaccounted income as exempt long-term capital gain by entering into sham transactions, the Finance Act, 2017 amended the provisions of Section 10 (38) of the Act to provide that exemption under this section for income arising on transfer of equity share acquired or on after first day of October, 2004 shall be available only if the acquisition of share is chargeable to STT," the ministry said.

"However, to protect the exemption for genuine cases where the STT could not have been paid, it was also provided that the Central government shall notify the acquisition for which the condition of chargeability to STT shall not apply," it added.

The amendment also exempts holding-subsidiary transactions, or those involving mergers and demergers, equity investments made by a non-resident Indian under foreign direct investment (FDI) regulations and employee stock options or gifts in the form of shares from long-term capital gains tax.

It provides that capital gains exemption will be available in case of share acquisition (without STT) made by non-residents and venture capital funds under the specified situations, for share acquisition made under employee stock ownership plan (ESOP) or approved M&A schemes and the Securities and Exchange Board of India (SEBI) guidelines.

It also extends relief to share acquisition, which has been approved by the Supreme Court, high court, National Company Law Tribunal, Securities and Exchange Board of India (SEBI) or Reserve Bank of India (RBI).

Commenting on the development, Abhishek Goenka, Partner and Leader Direct Tax, PwC said: "The notification comes as a breather for foreign investors and venture capital houses as well as shareholders, who have acquired shares upon corporate restructuring undertaken vide court approved schemes on which no STT was paid."

"The government has now provided a final list of transactions on which long-term capital gains tax shall be exempt in spite of STT not having been paid at the time of acquisition. Effectively, the notification covers 'all transactions' barring three specified transactions," Goenka said in a statement here.

The government has now carved out exceptions with respect to court-approved schemes, FDIs and investments made by a venture capital company. "The notification clearly intends to allow genuine transactions on the benefit arising from Section 10(38) without making any exceptions," he added.

A crucial aspect of the notification is granting of exemptions to tax-payers, who have received shares in the course of employment (ESOP). The government has specifically excluded ESOPs from being taxed, even though no STT may have been paid at the time of acquisition.

"Framing laws that tackle abuse is always very difficult to balance with ease of doing business. This government's and the Department of Revenue's approach of open, rational and balanced dialogue with industry has been evident from its start," Indian Private Equity and Venture Capital Association (IVCA) Chairman Gopal Srinivasan said.

"This is a wonderful example of ease-of-doing business, as it is in an area where tough laws and ease of investing are now in harmony in this remarkable new anti-abuse taxation rule, for lightly-traded listed company shares," he added.