19 November 2014

TP Case of Shell

HC decides TP issue of undervaluation of shares in favour of shell; follows ratio of Vodafone's case

November 19, 2014


On November 18, 2014 the Bombay High Court held in favour of Shell India on the issue of applicability of Transfer Pricing provisions in case of issue of shares. In this regard, the High relied upon decision in the case of Vodafone India Services (P.) Ltd. v. Union of India [2014] 50 taxmann.com 300 (Bombay). It held that Transfer Pricing provisions would not be applicable on alleged undervaluation of shares issued to foreign parent company, as there was no income arising there from. The High Court deleted the Transfer Pricing adjustment and the consequential interest in respect of alleged undervaluation of shares issued by Shell India.

Previously, the Bombay High Court on October 10, 2014 in the case of Vodafone India Services (Supra)held that issue of shares by assessee to its non-resident AE at a price below the fair market value would not give rise to any income from an admitted international transaction and, thus, Indian Transfer Pricing provisions would not be applicable on it.

BMR Legal acted as the briefing counsel on the tax litigation and transfer pricing issues for Shell. Mr. Percy Pardiwala, Senior Advocate, argued on behalf of Shell with the assistance from the BMR's Legal team.

Mukesh Butani, Managing Partner, BMR Legal stated as under:

 a)  "The Shell India case decided by the Bombay HC is a significant development. It follows the earlier judgment of Vodafone insofar as principles are concerned - the principle being that 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.

 b)  The High Court held today that the legal principle laid down by the Bombay HC applies in the Shell case and rejected the Department's argument that the facts of Shell case were distinguishable from Vodafone's case.

 c)  The said decision is a welcome relief not just for Shell but for all MNC's who have faced the adjustment on share issuance. It is significant to note that the court did not hesitate on exercising its extraordinary power to issue a writ where alternate appeal remedy was available - in this situation as the court felt that the tax department clearly exceeded its jurisdiction to bring to tax a capital transaction."

Gokul Chaudhri, Leader, Direct Tax, BMR & Associates LLP stated as under:

"The Bombay High Court has decisively held that no transfer pricing or tax implications can arise on issue of shares by a subsidiary to its overseas shareholders. Upholding the writ petition of Shell India the court brought to a close the controversy that arose in January 2013 and has since worried investors. This decision follows earlier decision of the court in similar circumstances for Vodafone India. Investors should welcome this bold intervention and clear thinking of the court. Hopefully one of the tax thorns that troubled investors has been removed. Acceptance of this decision by the Government would be helpful to bring closure."

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