TMI Blog2009 (7) TMI 149X X X X Extracts X X X X X X X X Extracts X X X X ..... is maintainable having regard to the wider language of sub-clause (i) of section 245N (a) in contrast with the language employed in sub-clause (ii). There is no specific requirement in sub-c1ause (i) that determination should relate to the tax liability of a non resident. Going by the averments of the applicant, it is clear that the capital gains tax issue arising in the case of the acquired Indian company has a direct and substantial impact on the applicant’s business in view of the stipulations in the share purchase agreement. Sub-clause (i) has to be construed in a wider sense and moreover a remedial provision shall be liberally construed. We are, therefore, of the view that the question raised by the applicant falls within the definiti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f section 47(xiii) of the Act for the reason that 50 per cent. or more of the voting power in the company would be held by its erstwhile partners for a period of 5 years, as laid down in proviso (d) to section 47(xiii). The continuation of the requirement of the said voting power for a period of 5 years would have lasted till September, 2010, in the normal course. However, by virtue of the transaction with the applicant for the purchase of the shares under the agreement dated July 1, 2008, this condition of 5 years' continuance has been violated. Therefore, the applicant apprehends that the breach of the condition regarding shareholding of the partners may lead to capital gains liability in the hands of the company. 2. On the facts stat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fer within the meaning of section 2(47) and other relevant provisions of the Income-tax Act, 1961 ("the Act" in short) ? If so, will it give rise to capital gains liable to income-tax consequent upon the transaction entered into by the applicant of buying the shares of the said company in August, 2008, and making it its wholly owned subsidiary by reason of the provision in proviso (d) to section 47(xiii) of the Act ? 5. The gist of arguments put forward in the supplementary statement of facts are as follows: The transaction which has been undertaken by the non-resident applicant has given rise to the application seeking determination on a question of law regarding capital gains tax liability which, in turn, directly affects the appl ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
