ASSOCIATED ENTERPRISE INTERNATIONAL …...M/s. T. P. Ostwal & Associates (Regd.) 07/02/2015 3 Any...

ASSOCIATED ENTERPRISE &

INTERNATIONAL TRANSACTION

CA SHARAD JAINPartner

M/s. T.P. Ostwal & Associates

07/02/2015 2M/s. T. P. Ostwal & Associates (Regd.)

MEANING OF ASSOCIATED ENTERPRISE

SECTION 92 – COMPUTATION OF INCOME


Any income arising from an international transaction

shall be computed having regard to the arm’s length

principle. [Section 92(1)]

The allowance for any expenses or interest shall be

determined having regard to the arm’s length principle.

[Section 92(2)]

The cost or expenses allocated or apportioned between

two or more associated enterprises shall be at arm’s

length price. [Section 92(3)]


92A. (1) For the purposes of this section and sections 92, 92B, 92C, 92D, 92Eand 92F, “associated enterprise”, in relation to another enterprise, means anenterprise—

(1)(a) which participates, directly or indirectly, or through one or moreintermediaries, in the management or control or capital of the otherenterprise; or

(b) in respect of which one or more persons who participate, directly orindirectly, or through one or more intermediaries, in its management orcontrol or capital, are the same persons who participate, directly orindirectly, or through one or more intermediaries, in the management orcontrol or capital of the other enterprise.

(2)For the purposes of sub-section (1), two enterprises shall be deemed to beassociated enterprises if, at any time during the previous year,—[Clauses a to m enumerated]


Section 92A(2) has been amended with retrospective effect from assessment

year 2002-03 to provide that “for the purposes of sub-section (1), two enterprises shall

be deemed to be associated enterprises if, at any time during the previous year...”

Thus, the words “for the purposes of sub-section (1)” have been inserted in the

section.

Further, the Memorandum explaining the provisions of the Finance Bill 2002

states that “this amendment clarifies that the mere fact of participation by one

enterprise in the management or control or capital of the other enterprise, or the

participation of one or more persons in the management or control or capital of both the

enterprises shall not make them associated enterprises, unless the criteria specified in

sub-section (2) are fulfilled”.

Memorandum explanation to section 92A(2)

DECODING THE DEFINITION – ASSOCIATED ENTERPRISES


DECODING THE DEFINITION – ASSOCIATED ENTERPRISES

To illustrate, an enterprise is holding 100% non voting preference share capital in

the other enterprise, but does not hold any voting equity shares. In such a case,

while it participates in the capital of the other enterprise, it does not hold shares

carrying at least 26% of voting power, as specified in section 92A(2)(a). In such a

case, the said criterion is not fulfilled and hence, the enterprises shall not be

regarded as associated enterprises.

Accordingly, in order to be regarded as AE u/s 92A (1), it is clarified that for the

purpose of determining associated enterprise relationship, any one of the criteria's

enumerated in sub-section (2) of section 92A have to be fulfilled and that two

entities for the purpose of section 92A(1) would be regarded as associated

enterprise only in cases where the criteria specified under sub – section (2) are

fulfilled.07/02/2015 6M/s. T. P. Ostwal & Associates (Regd.)

WHO ARE ASSOCIATED ENTERPRISES ? ?

(1) Two enterprises shall be deemed to be associated enterprises if, at any time duringthe previous year,

A) Control by capital(a) one enterprise holding directly or indirectly not less than twenty-six per cent

voting shares of other enterprise ;or(b) common shareholder holding directly or indirectly not less than twenty-six per

cent voting shares of each of enterprises; or(c) a loan, by one enterprise to the other, of not less than fifty-one per cent of the

book value of the total assets ; or(d) one enterprise guarantying not less than ten per cent of the total borrowings of

the other enterprise; or(l) where one enterprise is a firm, AOP, or BOI, and the other enterprise hold not

less than 10% interest in such firm, AOP, or BOI

B) Control by Management(e) more than half of the board of directors or one or more executive directors of

one enterprise, are appointed by the other enterprise; or(f) more than half of the directors or one or more of the executive directors of, each

of the two enterprises are appointed by the same person or persons; or


WHO ARE ASSOCIATED ENTERPRISES ? ?

C) Other Control

(g) the manufacture or processing of goods or articles or business carried out is whollydependent on knowhow, licenses or similar commercial rights etc. owned by the otherenterprise ; or

(h) 90% or more of the raw materials and consumables, are supplied by the other enterprise,and the prices are influenced by other enterprise; or

(i) the goods manufactured or processed, are sold to the other enterprise, and the prices areinfluenced by other enterprise; or

(j) where one enterprise is controlled by an individual, the other enterprise is alsocontrolled by such individual or his relative or jointly by such individual and relative ofsuch individual; or

(k) where one enterprise is controlled by a HUF, the other enterprise is controlled by amember of such HUF or by a relative of a member of such HUF or jointly by suchmember and his relative; or

(m) Any relationship of mutual interest, as may be prescribed [No such prescription till date]



Section 92A (1) (a)

“an enterprise which participates directly or indirectly or through one or more intermediaries, in the management or control or capital of the other enterprise shall be regarded as an associated enterprise.”


A Ltd. B Ltd.

Inter Ltd. C Ltd.

Directly

Indirectly

A Ltd and B Ltd would be regarded as AEsA Ltd and C Ltd would be regarded as AEs

MEANING OF ASSOCIATED ENTERPRISE (contd..)

Section 92A (1) (b)

“in respect of which one or more persons who participate, directly orindirectly , or through one or more intermediaries, in its management orcontrol or capital, are the same persons who participate, directly orindirectly, or through one or more intermediaries , in the management orcontrol or capital of the other enterprise.”


A Ltd.

B Ltd. C Ltd.

B Ltd and C Ltd would be regarded as AE’s


Control of Voting Power

Enterprise A Enterprise B

Ent. A controls 26 % of shares carrying voting

rights of Ent. B whether directly or indirectly

Ent. A & Ent. B are AEs.




Section 92A (2) (a)

“One enterprise holds, directly or indirectly, shares carrying not less than twenty-six per cent of the voting power in the other enterprise.”

only to those cases where the investee enterprise is a company


A Ltd.

B Ltd. C Ltd.

75% 75%

75% of 75% = 56.25%

A Ltd and C Ltd would be regarded as AEs



Section 92A (2) (b)

“Any person or enterprise holds, directly or indirectly, shares carrying not less than twenty-six per cent of the voting power in each of the such enterprise.”

only to those cases where the investee enterprise is a company


A Ltd.

B Ltd. C Ltd.

75% 75%

B Ltd and C Ltd would be regarded as AEs


Loan not less than 51%

Section 92A (2) (c)

“A loan advanced by one enterprise to the other enterprise constitutes not less than fifty-one per cent of the book value of the total assets of the other enterprise.”


A Ltd.

B Ltd.

•Bs book value of asset Rs.10cr• Loan from A Ltd. Rs.6cr

Issues•Meaning of total assets?•On which date this comparison has to be made??

LOAN

A Ltd and B Ltd would be regarded as AEs


Guarantee of Debts not Less than 10% - Deeming Situation

Section 92A (2) (d)

“One enterprise guarantees not less than ten per cent of the total borrowings of the other enterprise.”


A Ltd.

B Ltd.

GUARANTEE

• B‟s borrowings Rs.10cr• Guarantee by A Ltd. Rs.2cr

Issues•Meaning of borrowings??

- Whether guaranteeing paymentsof bareboat charter cum demiserental covered?

- Whether guaranteeing paymentsto suppliers of goods/servicescovered?

A Ltd and B Ltd would be regarded as AEs


Control over Board of Directors (not Less than 50%)

Section 92A (2) (e)

“More than half of the board of directors or members of the governing board, or one or more executive directors or executive members of the governing board of one enterprise, are appointed by the other enterprise.”

Total number of Board of Directors of B is ten. Enterprise A appoints six of them. Therefore, A & B are AEs.

Issues

Whether mere a right to appoint a directors is enough or should there be actual exercise of that right?

Whether only contractual right in the agreement is enough? Or it should exist via AOA?? Ex: Joint Venture Agreement.




Control over Board of Directors/Governing Board Members (not Less than 50%) or Executive Directors or both

Section 92A (2) (f)

“More than half of the directors or members of the governing board, or one or more executive directors or executive members of the governing board of each of the two enterprises, are appointed by the same person or persons.”

Mr. A / Ent. A

Enterprise B Enterprise C

Enterprise A or Mr. A appoints more than 50 % of directors / governing board membersor one or more Executive Director or governing Board Members of both of twoenterprises. Therefore, B and C are AEs.



Dependence on Enterprise for use of brand, know-how, patent etc

Section 92A (2) (g)

“The manufacture or processing of goods or articles or business carried out by one enterprise is

wholly dependent on the use of know-how, patents, copyrights, trade-marks, licenses, franchises orany other business or commercial rights of similar nature, or any data, documentation, drawingor specification relating to any patent, invention, model, design, secret formula or process, ofwhich the other enterprise is the owner or in respect of which the other enterprise has exclusiverights.

Issues:

1) When can one say that business is wholly dependent?

2) What if there are several products and such dependency isonly in respect of one product?

3) Need for any exclusivity?

4) Whether this clause applies totrading/service enterprises?


Enterprise A

Enterprise B

Ent. B manufactures product ‘X’ under a brand owned by Ent. A Therefore, Ent. A &B are AEs


Deeming Situation - Dependence on Enterprise for raw materials

Section 92A (2) (h)

“Ninety per cent or more of the raw materials and consumables required for the manufacture or processing of goods or articles carried out by one enterprise, are supplied by the other enterprise or by persons specified by the other enterprise, and the prices and other conditions relating to the supply are influenced by such other enterprise.”

Issues:

1) What would happen where MNC groups have Global supply contracts?

2) How to establish influence on prices and other conditions of supplies?07/02/2015 19M/s. T. P. Ostwal & Associates (Regd.)


Ent. A procures 90% of its raw materials from Ent. B Therefore, Ent. A and Ent. B are AEs


Enterprise C



Ent. A procures finished products from Ent. B who in turn supplies it at such price as influenced by Ent. C.

Therefore, Ent. B and Ent. C are AEs

Dependence on Enterprise for raw materials

Section 92A (2) (i)“The goods or articles manufactured or processed by one enterprise, are sold

to the other enterprise or to persons specified by the other enterprise, and the

prices and other conditions relating thereto are influenced by such other

enterprise.”

Issues:-How to establish influence on prices/terms?

-Whether it would apply to service/trading organisations?



Control over Enterprises

Enterprise A

(Proprietorship)Enterprise B

(Proprietorship)Sells Goods

Enterprise A is controlled by Mr. A and enterprise B is controlled by relative of Mr. A (Mrs. A) and

hence AE relationship.

Section 92A (2) (j)

“Where one enterprise is controlled by an individual, the other enterprise is also controlled by such individual or his relative or jointly by such individual and relative of such individual”

Issues1) Meaning of „control‟? [Defacto or Dejure ]2) “Directly or indirectly” missing. Whether indirect control also covered??3) Meaning of „Relative‟? Can one rely on definition given in section 2(41) of the Act?

4) Whether Joint control is covered?

For the purpose of section 92A(2) (j), it could be arguedthat in case of companies, the term “control” needs to beinterpreted from Company Law point of view. Under thecompany law, a shareholder is said to control the companyonly if he has shareholding carrying more than 50% votingrights. Further, if there is no special voting rightarrangement between the shareholders, there is noshareholder‟s agreement and there are no special rightsgiven to any shareholder under the Articles of Association(AOA) then it may be argued there exists no control.





Note : The term “Relative” will be applicable as defined under Section 2(41) of the

Income- tax Act 1961.

Mr. P Mr. Q

A B

Relatives / Brothers

Associated Enterprises

Enterprise of Relatives – Individuals

Mr. P & Mr. Q may or may not jointly control A and/or B

Enterprise of Relatives - HUFs

HUF A Mr. C

Ent. B

A relative of

Karta of HUF A

Ent. D

controls controls



Section 92A (2) (k)“Where one enterprise is controlled by a Hindu undivided family, the other enterprise is controlled by a member of such Hindu undivided family, or by a relative of a member of such Hindu undivided family, or jointly by such member and his relative.”

B & D are AEs HUF A & Mr. C. may or may not jointly

control B and/or D


Firm/AOP/BOI – Holding of interest not less than 10%

Firm A

(AOP/BOI/

Company)

Firm B

(AOP/BOI)10%

Interest

Section 92A (2) (l)

“Where one enterprise is a firm, association of persons or body of individuals, the other enterprise holds not less than ten per cent interest in such firm, association or body of individuals”

Firm A holds10% interest in firm B A & B are AEs



Residual Category


As may be prescribed ? A million dollar question

Section 92A (2) (m)

“There exists between the two enterprises, any relationship of mutual interest, as may be prescribed.”

Mutual interest as may be prescribed.A & B are AEs



JUDICIAL PRECEDENTS – ASSOCIATED ENTERPRISES

Mumbai Tribunal in the case of Diageo India Private Limited 47 SOT 252explains term “associated enterprise” for transfer pricing purposes

The Tribunal held that the phrase “participation in control or management orcapital” for the purpose of determining an associated enterprise relationshipshould be understood to mean de facto control of decision making.

The Tribunal found such “de facto” control of the CBU based on its dependenceon trademarks of the Diageo group to which the Taxpayer has exclusive rights.The Taxpayer in turn, was controlled by way of equity participation by DiageoPLC which also similarly controlled other entities of the Diageo group, includingthe entities from which the CBU imported the raw materials.

Therefore, the Tribunal concluded that the Taxpayer, the CBU and its suppliers ofraw materials were all associated enterprises and all were de facto controlleddirectly or indirectly by Diageo PLC.

[Note: In this case the clause (2) of section 92B was not referred by ITAT or bylitigation parties]


It is pertinent to note that the Tribunal has ignored the intent of the law for amending section 92A(2) and held that

In our considered view, therefore, the definition of associated enterprises in Section 92A(1)(a)and (b) is, what can be termed as, basic rule. In plain terms, the basic rule is that when oneenterprise participates in the control or management or capital of the other enterprise (directlyor indirectly or through one or more intermediaries) or when persons participating (directly orindirectly or through one or more intermediaries) in control or management or capital of twoor more enterprise are the same, the enterprises are said to be associated enterprise. Theexpression used in the statute is „participation in control or management or capital‟, butessentially all these three ingredients refer to de facto control on decision making. In terms ofthe basic rule thus, whether one enterprise controls the decision making of the other or whetherdecisions making of two or more enterprise are controlled by same interests, these enterpriseare required to be treated as „associated enterprise‟. Section 92A (2) gives practical illustrationsof this kind of a control. All these illustrations deal with simple situations of dealing with twoenterprise, as envisaged in Section 92A(1) (a), but these are equally good for application insituations involving more than two enterprise, as envisaged in Section 92A(1)(b)

In our considered view, as all clauses of deeming fictions set out in Section 92A(2) are onlyillustration of the manner in which this de facto control on decision making exists, it isnecessary that, while interpreting these deeming fictions, we interpret the same in such amanner as to make them workable rather than redundant (ut res magis valeat quam pereat),and that the same test of effective control on decision making as are implicit in deeming fictionunder section 92(A)(2) we also apply to the situations of more than two associated enterprisesenvisaged in Section 92A(1)(b).


The Gujarat High Court in case of Veer gems v. ACIT [2011] 15taxmann.com 335 in respect of the matter of jurisdiction of AO andTPO while ruling at what stage it can be held that there had been aninternational transaction between taxpayer and its AE observed andstated that :

“The Partners of Veer Gems are three brothers Shri Piyush M Shah,Mukesh M Shah and their wives/son, together holding the entirepartnership stake. The fourth brother Nareshkumar Shah, along with hiswife Surekhaben Shah and his son Mitesh Shah control the entire shareholding of M/s.Blue Gems BVBA, the fourth brother and his son beingdirectors of the company. It is clear that both the entities are beingcontrolled by the same family of four brothers and their close relatives. Itis clear that M/s.Blue Gems BVBA is closely related with M/s.Veer Gemsand falls within the parameters of sec.92A(2), (j), (k) and (m) of the Act.”

[High court did not pointed specific clause in which the AE relationshipemerge and remanded the matter back to AO for further examination]

JUDICIAL PRECEDENTS – ASSOCIATED ENTERPRISES


MEANING OF INTERNATIONAL TRANSACTION


MEANING OF INTERNATIONAL TRANSACTION

92B. (1) For the purposes of this section and sections 92, 92C, 92D and 92E,“international transaction” means a transaction between two or more associatedenterprises, either or both of whom are non-residents, in the nature of purchase,sale or lease of tangible or intangible property, or provision of services, or lendingor borrowing money, or any other transaction having a bearing on the profits,income, losses or assets of such enterprises, and shall include a mutual agreementor arrangement between two or more associated enterprises for the allocation orapportionment of, or any contribution to, any cost or expense incurred or to beincurred in connection with a benefit, service or facility provided or to be providedto any one or more of such enterprises.

(2) A transaction entered into by an enterprise with a person other than anassociated enterprise shall, for the purposes of sub-section (1), be deemed to be atransaction entered into between two associated enterprises, if there exists a prioragreement in relation to the relevant transaction between such other person andthe associated enterprise, or the terms of the relevant transaction are determined insubstance between such other person and the associated enterprise.

DEFINITION OF INTERNATIONAL TRANSCATION EXPANDED (Inserted in the Finance Bill 2012 with effect from the 1st day of April, 2002)

International transaction to now include:

Transactions pertaining to intangible property

Transaction on which applicability of TP was questioned by tax

payers such as provision of corporate guarantee

Transactions of business restructuring or reorganization

Intangible property has been explained to include marketing

intangible, customer related intangible, location related intangible, etc

3207/02/2015M/s. T. P. Ostwal & Associates (Regd.)


Explanation.—For the removal of doubts, it is hereby clarified that—

(i) the expression "international transaction" shall include—

(a) the purchase, sale, transfer, lease or use of tangible property including building,

transportation vehicle, machinery, equipment, tools, plant, furniture, commodity or any other

article, product or thing;

(b) the purchase, sale, transfer, lease or use of intangible property, including the transfer of

ownership or the provision of use of rights regarding land use, copyrights, patents, trademarks,

licences, franchises, customer list, marketing channel, brand, commercial secret, know-how,

industrial property right, exterior design or practical and new design or any other business or

commercial rights of similar nature;

(c) capital financing, including any type of long-term or short-term borrowing, lending or

guarantee, purchase or sale of marketable securities or any type of advance, payments or deferred

payment or receivable or any other debt arising during the course of business;

(d) provision of services, including provision of market research, market development, marketing

management, administration, technical service, repairs, design, consultation, agency, scientific

research, legal or accounting service;

(e) a transaction of business restructuring or reorganisation, entered into by an enterprise with

an associated enterprise, irrespective of the fact that it has bearing on the profit, income, losses or

assets of such enterprises at the time of the transaction or at any future date;

EXPLANATION INSERTED VIDE FINANCE ACT 2012


(ii) the expression "intangible property" shall include—

(a) marketing related intangible assets, such as, trademarks, trade names, brand names, logos;

(b) technology related intangible assets, such as, process patents, patent applications, technical

documentation such as laboratory notebooks, technical know-how;

(c) artistic related intangible assets, such as, literary works and copyrights, musical compositions,

copyrights, maps, engravings;

(d) data processing related intangible assets, such as, proprietary computer software, software

copyrights, automated databases, and integrated circuit masks and masters;

(e) engineering related intangible assets, such as, industrial design, product patents, trade secrets,

engineering drawing and schema-tics, blueprints, proprietary documentation;

(f) customer related intangible assets, such as, customer lists, customer contracts, customer relationship,

open purchase orders;

(g) contract related intangible assets, such as, favourable supplier, contracts, licence agreements,

franchise agreements, non-compete agreements;

(h) human capital related intangible assets, such as, trained and organised work force, employment

agreements, union contracts;



(i) location related intangible assets, such as, leasehold interest, mineral exploitation rights, easements,

air rights, water rights;

(j) goodwill related intangible assets, such as, institutional goodwill, professional practice goodwill,

personal goodwill of professional, celebrity goodwill, general business going concern value;

(k) methods, programmes, systems, procedures, campaigns, surveys, studies, forecasts, estimates,

customer lists, or technical data;

(l) any other similar item that derives its value from its intellectual content rather than its physical

attributes.]



“92F (v) “transaction” includes an arrangement, understanding or action in concert,—

(A) whether or not such arrangement, understanding or action is formal or in writing;

or

(B) whether or not such arrangement, understanding or action is intended to be

enforceable by legal proceeding.”

Transaction includes – Arrangement, understanding or action in

concert

o (A) whether or not such arrangement, understanding or action is

formal or in writing; or i.e. Need not be formal or in writing

o (B) whether or not such arrangement, understanding or action is

intended to be enforceable by legal proceeding i.e. Need not be

legally enforceable

MEANING OF INTERNATIONAL TRANSACTION (contd..)


Income from International Transaction relating to:

o Purchase, sale or lease of tangibles / intangibles

o Provision of services

o Financing

o Cost allocation / contribution arrangements

o Impact on profits, income, losses or assets

MEANING OF INTERNATIONAL TRANSACTION (contd..)


The Foreign branch would have the

legal status as that of a resident in India

and accordingly, the transaction

between the Indian HO and the foreign

branch though regarded as transaction

between two AEs, the same will not be

regarded as “International transaction”

since the same is between two resident

enterprises. [sec 92B(1)]

Foreign Branch

Indian HO. Co.

Branch

Indian Company –Foreign branch

Foreign Company –Indian branch

Not an International transaction

Foreign HO. Co.

Branch

The Indian branch would have the legal

status as that of a foreign Head office

and thus would be non resident in India.

Accordingly, the transaction between the

Foreign HO and the Indian branch being

a transaction between two AEs, will be

regarded as “International transaction”

since the same is between two non

resident enterprises. [sec 92B(1)]

International transaction

Indian Branch


Meaning of International Transaction…

Section 92B (2)

(2) A transaction entered into by an enterprise with aperson other than an associated enterprise shall, for thepurposes of sub-section (1), be deemed to be a transactionentered into between two associated enterprises, if thereexists a prior agreement in relation to the relevanttransaction between such other person and the associatedenterprise, or the terms of the relevant transaction aredetermined in substance between such other person andthe associated enterprise.

Third party transactions deemed to be international transaction


A’s AEs 3rd Party

Prior agreement / determination of terms

A 3rd PartyServices

India

India

Outside India

Outside India

A

A’s AEsPrior agreement /

determination of

terms

Transaction between A and

3rd party also subject to TP

norms , if:

a prior agreement exists

between A’s AE and 3rd

party;

OR

terms of transaction are

determined in substance

by A’s AEs and 3rd

party

Meaning of International Transaction…DEEMED


ISSUES – INTERNATIONAL TRANSACTION

Issues arise as regards the following transactions :

SUBSCRIPTION TO EQUITY SHARES

TRANSFER OF SHARES WITHIN GROUP COMPANIES AS PART

OF CORPORATE RESTRUCTURING

BUY BACK OF EQUITY SHARES

REDEMPTION OF PREFERENCE SHARES

CORPORATE GUARANTEE


ANY QUESTIONS

Disclaimer

The information provided in this presentation is for informational purposes only, andshould not be construed as legal advice on any subject matter. No recipients of thispresentation, clients or otherwise, should act or refrain from acting on the basis of anycontent included in this presentation without seeking the appropriate legal or otherprofessional advice on the particular facts and circumstances at issue. The content ofthis presentation contains general information and may not be accurate or reflectcurrent legal developments, verdicts or settlements. The presenter and M/s. T. P.Ostwal Associates expressly disclaims all liability in respect to actions taken or nottaken based on any or all the contents of this presentation.

07/02/2015 43

M/s. T. P. Ostwal & Associates (Regd.)

T.P.Ostwal & Associates

THANK YOU

T. P. Ostwal & Associates4th Floor, Bharat House,

104 Mumbai Samachar Marg, fort, MUMBAI-400001.

Tel No.: +91-22-40693900Fax No.: +91-22-40693999

Mobile:+919004660108Email: [email protected]


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