Millennium Post

Bombay HC backs EU MNC Shell against Indian I-T Dept

Bombay HC backs EU MNC Shell against Indian I-T Dept
The tax sleuth had added Rs 15,000 crore and Rs 3,000 crore respectively to the taxable income of Shell India Markets Pvt Ltd, the Indian subsidiary of Royal Dutch Shell Plc, for the FY 2007-08 and FY 2008-09 in two transfer pricing cases.

The judgement comes in the wake of two similar transfer pricing cases, which were ruled in favour of the Indian subsidiary of Vodafone Group Plc, in which the I-T department had sought adjustments of over Rs 4,500 crore last month.

The order in favour of Shell India was passed by a bench of justices M S Sanklecha and S C Gupte on a petition filed by Shell India Markets. Transfer pricing tax orders of Income Tax against Shell and Vodafone pertain to alleged undervaluation of shares issued by their domestic subsidiaries to the parent companies abroad.

Transfer pricing refers to the practice of arm's length pricing for transactions between group companies based in different countries to ensure that a fair price— one that would have been charged to an unrelated party —is levied.

Shell India had issued 870 million shares to Shell Gas BV in March 2009 at Rs 10 per share. However, the Income Tax department contended that the shares were grossly undervalued and it valued them at Rs 180 per share. The department then added the difference to the taxable income of Shell India. In a separate development this year, the Income Tax department had issued a show-cause notice adding another Rs 3,100 crore to Shell India's income for FY 2009 in another transfer pricing case.

Being aggrieved, the company moved the Bombay High Court challenging the tax notice. Funding a subsidiary by issuing shares is a common practice among multi-national companies which view this as a capital transaction and out of the transfer pricing bracket. However, the tax department argues that such a deal is a transfer pricing arrangement by which the shares issued are undervalued and hence the company is liable to pay tax on the income generated out of it. The high court did not agree with the department and quashed its order and showcaused notice against Shell India.    Welcoming the high court judgement, Shell India termed it as a 'positive outcome'.

'We welcome the High Court decision. Shell has always maintained that equity infusion by a foreign parent company into an Indian subsidiary cannot be taxed as income. This is a positive outcome which should provide a further boost to the government initiatives to improve the investment climate,' a Shell India spokesman said in an e-mail statement. Commenting on the Shell case verdict, Mukesh Butani, managing partner at law firm BMR Legal, which represented the British oil major in the case said, 'The HC decision is a significant development and it follows the earlier judgement in the Vodafone case wherein it was ruled that in so far as transfer pricing principles are concerned the issuance of shares by an Indian company to its foreign parent is not eligible to transfer pricing provisions as there is no income arising therefrom.

'The High Court has held that the legal principle laid down by the Bombay HC applies in the Shell case and rejected the IT department's argument that the facts of Shell case were distinguishable from the Vodafone case,' he said, adding the decision is a welcome relief not just for Shell India but for all MNCs who are facing the adjustment on share issuance.
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