Monday, February 17, 2014

No advance ruling for proposed transactions to be undertaken with entities to be established in future

In order to cover proposed transaction under section245N, the partnership firm and subsidiary-company have to exist in reality with which that transaction is to be undertaken.

1)  The applicant-company, registered in UAE, is engaged in the business of developing and investing in the infrastructure and real estate sector. It intends to invest in a 100% subsidiary company in India under the prevailing FDI regulations;
2)  This Indian subsidiary company of the applicant intends to set-up a consortium by way of partnership firm with another Indian company, namely, MEPPL;
3)  This consortium proposes to acquire the undertaking of MEP Infra Private Limited which is engaged in the business of operating and maintaining of roads and bridges in Mumbai.
The applicant seeks ruling, interalia, on the following question:
Whether, the transfer of Undertaking of MEP Infra Toll Road Private Limited to the partnership firm would affect the allowability of deduction under section80IA(4)(i) to the partnership firm?
The Authority held as under:
1)  In order to apply the provisions of section 245N, there has to be either a transaction undertaken or proposed transaction to be undertaken by the non-resident applicant. This is not the case in the present application;
2)  The question relates to proposed setting-up of the subsidiary and the partnership firm with the Indian company and as to whether the subsidiary or the partnership firm would be eligible to 100 per cent deduction under section80IA?;
3)  The 100 per cent subsidiary company has to exist in reality and the partnership firm has to be set-up in order to make transaction or proposed transaction of the applicant with the Indian company or subsidiary;

4)  Thus, the question posed does not fall under the purview of this Authority. Consequently, the application is to be rejected -  Trade Circle Enterprises LLC, In re [2014] 42 287 (AAR - New Delhi)