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Taxation of foreign shareholders in Indian Companies


As India continues to attract foreign investment, it is important for businesses to understand the taxation of foreign shareholders in Indian companies. Foreign shareholders are subject to different tax rules and regulations in India, and it is essential to have a clear understanding of these regulations to ensure compliance and avoid any penalties. In this blog, we will discuss the taxation of foreign shareholders in Indian companies and provide an overview of the relevant tax laws and regulations.


Overview of Taxation of Foreign Shareholders

Foreign shareholders are subject to different tax rules and regulations as compared to domestic shareholders in Indian companies. The tax laws and regulations applicable to foreign shareholders depend on various factors, such as the nature of the investment, the country of residence of the foreign shareholder, and the tax treaty between India and the foreign shareholder's home country.


Legal Provisions

In India, the tax provisions regarding taxation of foreign shareholders in Indian companies are governed by the Income Tax Act, 1961, and the Double Taxation Avoidance Agreements (DTAAs) entered into by India with various countries.


As per the Income Tax Act, 1961 foreign shareholders are required to pay tax on their income earned from Indian sources, which includes dividends, capital gains, and interest. The tax rate for foreign shareholders is generally higher than that for domestic shareholders, and they are also subject to withholding tax.


The tax rate applicable to foreign shareholders depends on whether the country they belong to has a DTAA with India or not. If the country has a DTAA with India, then the tax rate would be as per the provisions of the agreement. If the country does not have a DTAA with India, then the tax rate would be as per the domestic tax laws of India.


Under the DTAAs, the tax rate on dividends is usually lower, ranging from 5% to 15%, depending on the country. The tax rate on capital gains can be either a flat rate or the rate applicable to domestic shareholders, depending on the nature of the investment and the provisions of the agreement. Foreign shareholders are also required to obtain a Permanent Account Number (PAN) in India and file their tax returns as per the prescribed timelines. Failure to comply with the tax provisions can result in penalties and other legal consequences. In the absence of a DTAA, the following provisions will be applicable to a foreign shareholder with respect to direct taxes.


Direct Taxes

Direct taxes are levied on the income or wealth of an individual or a company. The most common direct taxes applicable to foreign shareholders in Indian companies are income tax, capital gains tax, and dividend distribution tax.


Foreign shareholders are subject to income tax in India on any income earned from their investment in Indian companies. The income tax rate applicable to foreign shareholders is the same as the rate applicable to domestic shareholders as per the provisions of the Income Tax Act, 1961. However, foreign shareholders are not entitled to certain tax exemptions and deductions that are otherwise available to their domestic counterparts.


Foreign shareholders are also subject to capital gains tax in India on any gains earned from sale of their investment in Indian companies. The capital gains tax rate applicable to foreign shareholders depends on the nature of the investment and the period of holding. If the investment is held for less than 36 months, it is treated as a short-term capital asset, and the gains are taxed at the applicable income tax rate under the head “short term capital gains” as per Section 111A of the Income Tax Act, 1961. If the investment is held for more than 36 months, it is treated as a long-term capital asset, and the gains are taxed at a lower rate under the head “long terms capital gains” as per the provisions of Section 112A of the Income Tax Act, 1961.


Dividend Distribution Tax

Dividend distribution tax is a tax on the distribution of dividends by companies to their shareholders. In India, companies are required to pay dividend distribution tax on any dividends distributed to their shareholders. Foreign shareholders are subject to the same dividend distribution tax rate as domestic shareholders as per Section 115-O of the Income Tax Act, 1961.


Tax Treaty Benefits

India has signed tax treaties with many countries to avoid double taxation of income earned by foreign shareholders. These tax treaties provide benefits such as reduced tax rates and exemptions from certain taxes. Foreign shareholders can take advantage of these tax treaty benefits by providing the necessary documentation and information to the Indian tax authorities.


Submitted by,

Kanak Purohit,

Jindal Global Law School


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