MUMBAI: A new tax ruling threatens to challenge a strategy
that allowed thousands of businesses and professionals to reorganise themselves
and attract foreign investors.
This involved converting closely held companies
into limited liability partnerships (LLPs) — a structure that was introduced a
decade ago. While LLP was intended to help businesses to scale up, many were
also allured by its ability to freely distribute profits to partners as
dividend without deducting any dividend
distribution tax.
The new ruling would force many companies to
change tack.
In mid-November, a Mumbai bench of the Income
Tax Appellate Tribunal said conversion of a company into LLP is covered by the
definition of ‘transfer’ and therefore liable to capital gains tax.
The decision puts a question mark on an earlier
Bombay High Court decision that the conversion of a partnership firm into
company does not amount to ‘transfer’ and involves no ‘consideration.’
“This decision will have far-reaching implications,” said
senior chartered accountant Dilip Lakhani. “It will apply to all pending
proceedings, could lead to re-assessment and revision of orders passed by tax
assessing officers (AO). Future planning of conversion will also be impacted as
in many cases, huge liability will arise on the com-pany when assets are
transferred at higher than the book value… as the conversion into LLP is
considered as ‘transfer’, the ruling lifts the primary shield that was offered
by the Bombay High Court in the case of Texspin.”
There would be no capital gains tax, as per the tribunal, as
long as such a transfer happened at book value. However, many businesses used to
convert by valuing the assets higher than book value to strengthen balance
sheet of the LLP, borrow funds, attract foreign capital, as well as increase
the net worth of the partners in the LLP.
Another significant aspect of the Tribunal
ruling is that any tax that had escaped in the hands of the company would now
be levied on the limited liability partnership, which is construed as the
successor. “This could make life difficult for many LLPs,” said Lakhani.
The ruling involved Celerity Power, a private limited company
that acquired LLP status in September 2010. The tax office did not buy the
company’s argument that the conversion of M/s Celerity Power Pvt Ltd into M/s
Celerity Power LLP did not involve any transfer of property, assets or liabilities,
among others.
The ruling could also draw the attention of the
indirect tax authorities, as it challenges an earlier Madras High Court ruling
that no stamp duty is levied in case of conversion of a firm into a
company.
Smaller companies with less than Rs 60 lakh
earnings are exempted from the definition of transfer (and thus, from capital
gains tax).
However, even companies with income above the
threshold are currently in a position to avoid tax on the back of the Texspin
verdict of the Bombay High Court, which said the conversion was not a transfer.
The Income Tax Appellate Tribunal’s ruling on Celerity Power partly takes away
that protection that companies enjoyed .
Post
ruling, tax can be avoided only as long as ‘transfer’ from a company to an LLP
happens at not higher than the book value.
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