Private Equity / Venture Capital Funds
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1 Private Equity / Venture Capital Funds Recent Tax & Regulatry Develpments December 2011 Punit Shah
2 Cntents Tax Develpments India-Mauritius Treaty Key Develpments Alternative Jurisdictins - Cmparative Analysis Tax Infrmatin Exchange Agreements Vdafne Cntrversy Permanent Establishment Glbal Develpments Regulatry Develpments SEBI Exchange Cntrl / FDI Plicy NBFC Cmpany Law 2010 KPMG, an Indian Partnership and a member firm f the KPMG netwrk f independent member firms affiliated with KPMG Internatinal Cperative ( KPMG Internatinal ), a Swiss entity. All rights reserved. 2
3 Tax Develpments
4 India-Mauritius Treaty Key Develpments CBDT Circular and favurable judicial precedents Circular 789 dated April 13, 2000 Azadi Bacha Andlan (Supreme Curt ) E*Trade (AAR) (2010) SLP filed by the Revenue befre SC Praxair Pacific Limited (AAR ) D. B. Zwirn Mauritius (AAR) (2011) Ardex Crpratin (AAR) (2011) Negative judicial precedents / attempts by tax authrities denying Treaty benefits SMR Investments (Delhi Tribunal) (2010) Aditya Birla Nuv Limited (Bmbay HC 2011) India-Mauritius treaty News f pssible re-negtiatin General Anti Avidance Rules under Draft Direct Taxes Cde 2010 KPMG, an Indian Partnership and a member firm f the KPMG netwrk f independent member firms affiliated with KPMG Internatinal Cperative ( KPMG Internatinal ), a Swiss entity. All rights reserved.
5 Alternative Jurisdictins Cmparative Analysis Particulars Taxability in India Capital Gains Treaty cuntry Singapre Cyprus Netherlands (subject t LOB clause) (partially exempt) Dividend Interest 15% n grss basis 10% n grss basis 10% n grss basis (beneficial wnership) (beneficial wnership) (beneficial wnership) Taxability in hme jurisdictin - Capital Gains - Dividend - Interest (Tax incentives) (Headline tax criteria) 2% (India tax credit cnsidered) (Exemptin frm Defence Cntributin subject t cnditins) (India tax credit cnsidered) / 25% (participatin exemptin) / 25% (participatin exemptin) 15% (Indian tax credit cnsidered) LOB clause in Treaty Yes N N Service PE clause Yes N N 2010 KPMG, an Indian Partnership and a member firm f the KPMG netwrk f independent member firms affiliated with KPMG Internatinal Cperative ( KPMG Internatinal ), a Swiss entity. All rights reserved.
6 Tax Infrmatin Exchange Agreements Signed In frce Bahamas Bermuda British Virgin Islands Isle f Man Cayman Island Nt yet 2010 KPMG, an Indian Partnership and a member firm f the KPMG netwrk f independent member firms affiliated with KPMG Internatinal Cperative ( KPMG Internatinal ), a Swiss entity. All rights reserved.
7 Vdafne Cntrversy Taxability f ffshre transfer resulting int transfer f underlying assets in India Cntrlling interest Dcumentatin Draft Direct Taxes Cde Taxability f indirect transfer Practical difficulties Chinese Circular n 698 Shantha Bitechnics i (AAR) (2011) 2010 KPMG, an Indian Partnership and a member firm f the KPMG netwrk f independent member firms affiliated with KPMG Internatinal Cperative ( KPMG Internatinal ), a Swiss entity. All rights reserved.
8 Permanent Establishment Glbal Develpments Australian tax determinatin German tax ruling 2010 KPMG, an Indian Partnership and a member firm f the KPMG netwrk f independent member firms affiliated with KPMG Internatinal Cperative ( KPMG Internatinal ), a Swiss entity. All rights reserved.
9 Regulatry Develpments
10 Regulatry Develpments SEBI Draft Alternative Investment Funds Regulatins Cncept paper n Investment Advisrs Regulatins Infrastructure Debt Funds New SEBI Takever Cde (2011) Subhkam Ventures (SC Ruling) Exchange Cntrl / FDI Plicy Put ptins cntrversy Dwnstream investment Freign investment in a dmestic fund Liberalizatin f FDI plicy n transfer f shares 2010 KPMG, an Indian Partnership and a member firm f the KPMG netwrk f independent member firms affiliated with KPMG Internatinal Cperative ( KPMG Internatinal ), a Swiss entity. All rights reserved.
11 Regulatry Develpments NBFC CIC Regulatins Key recmmendatins f wrking grup n issues and cncerns in NBFC sectr Cmpany Law Cmpanies Bill 2011 Unlisted Public Cmpanies (Preferential Alltment) Rules, KPMG, an Indian Partnership and a member firm f the KPMG netwrk f independent member firms affiliated with KPMG Internatinal Cperative ( KPMG Internatinal ), a Swiss entity. All rights reserved.
12 Bangalre Slitaire, 139/26, 3rd Flr, Inner Ring Rad, Kramangala, Bangalre Tel Fax Kchi 4/F, Palal Twers, M. G. Rad, Ravipuram, Kchi Tel +91 (484) Fax +91 (484) Thank Yu Chandigarh SCO st flr. Sectr 8 C Madhya Marg Chandigarh Tel : Fax Klkata Infinity Benchmark, Plt N.G-1, 10th flr, Blck - EP & GP, Sectr - V, Salt Lake City Klkata Tel: Fax: The infrmatin cntained herein is f a general nature. The cntent prvided here treats the subjects cvered here in cndensed frm. It is intended t prvide a general guide t the subject matter and shuld nt be relied n as a basis fr business decisins. A detailed analysis f the tax and regulatry implicatins shuld be dne prir t implementatin in rder t determine the feasibility f the transactin at the time f implementatin. Chennai N. 10, Mahatma Gandhi Rad, Nungambakam, Chennai Tel Fax Delhi Building N.10, Twer B, 8th Flr, DLF Cyber City, Phase II Gurgan Haryana Tel Fax Althugh we endeavur t prvide accurate and timely infrmatin, there can be n guarantee that such infrmatin is accurate as f the date it is received r that it will cntinue t be accurate in the future. N ne shuld act upn such infrmatin withut apprpriate prfessinal advice after a thrugh examinatin f the particular situatin. Fax Specialist advice shuld be sught with respect t any individual circumstances. Mumbai Ldha Excelus, 1st Flr, Apll Mills Cmpund, N.M. Jshi Marg, Mahalakshmi, Mumbai Tel Fax Pune 703, Gdrej Castlemaine Bund Garden Pune Tel: / 65 Fax: KPMG and the KPMG lg are registered trademarks f KPMG Internatinal Cperative ( KPMG Internatinal ), a Swiss entity KPMG, an Indian Partnership and a member firm f the KPMG netwrk f independent member firms affiliated with KPMG Internatinal Cperative ( KPMG Internatinal ), a Swiss entity. All rights reserved. Hyderabad /2 Reliance Humsafar, 4th Flr Rad N. 11, Banjara Hills Hyderabad Tel Fax
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