A-Insights

October 23, 2020

As a part of relief measures announced in view of the COVID-19 pandemic, the Ministry of Finance, on October 23, 2020, issued a scheme for grant of ex-gratia payment of difference between compound and simple interest. The period to be considered for this payment would be 184 days, from March 1, 2020 to August 31, 2020.  This applies to borrowers with aggregate loans (with all banks) upto that INR 20 million (INR 2 crores). This is subject to the condition that the account should be categorised as ‘standard’ i.e. the account shouldn’t have been declared an Non Performing Assets at any time as on February 29, 2020.  

The banks would be required to submit their claims for reimbursements with State Bank of India (SBI). SBI would be the nodal agency for disbursement of funds to such other banks.  

In case any compound interest has been paid by the borrowers, the same shall be refunded to the extent of difference between the simple interest and the compound interest. The rates applicable would differ as under:

• Education, housing, cars, personal loans to professionals, consumptions loans, consumer durable loans and terms loans to MSMEs as per the agreement
• Cash credit overdraft facilities to MSMEs as per the rates applicable as on February 29, 2020
• Credit card dues as per the Weighted Average Lending Rate (WALR) charged by card issuer for transactions charged on EMI basis. The WALR has to be certified by the statutory auditor of the card issuer.
• In case no interest has been charged on the Equated Monthly Installment (EMI) for specific period then as per lenders’ base rate or marginal cost of funds based lending (MCLR), whichever is applicable

The Scheme provides that this exercise would be completed by lending institutions by November 5, 2020. Further, lending institutions would be required to establish a grievance redressal mechanism for eligible borrowers within 1-week from October 23, 2020.

The Scheme is in consonance with submissions made by the Central Government before the Supreme Court in relation to provision of policy measures for reliefs to borrowers. This may provide a major relief to small businesses and individual borrowers. However, impact of the Scheme on the banking sector remains a question as Scheme does not provide for a time period within which the lending institutions would. 

By Vineet Shrivastava and Sayli Petiwale. Views are personal.  Vineet and Sayli can be reached at vineet.shrivastava@aureuslaw.com and sayli.petiwale@aureuslaw.com respectively. 

In what comes as a relief to foreign investors stuck in litigation around indirect transfer of share (transfer prior to April 2015) held in an Indian company, the Delhi Bench of ITAT in the case of Augustus Capital PTE Ltd has held that the threshold specified in Explanations 6 and 7 of section 9(1)(i) of the Income tax Act would have to be read with Explanation 5 and given retrospective effect.

Explanation 5 inserted by the Finance Act 2012 provides that shares in a foreign company shall be deemed to have been situated in India if the shares derives, directly or indirectly, value substantially from the assets located in India. This has retrospective effect. Explanation 6 and 7 were inserted by the Finance Act 2015 (i.e. made effective from FY 2015-16). Explanation 6 provides thresholds for the applicability of indirect transfer rules i.e. the value of assets (owned by the foreign entity whose shares are being sold) exceeds INR 10 Cr and represents 50% or more of the value of all assets owned by the foreign entity. Further Explanation 7 excludes from the ambit transfers made by the non-resident transferor who directly or indirectly, neither holds management right/control over the foreign company or voting power/ share capital exceeding 5% at any time during the period of 12 months preceding the date of transfer.

The tax authorities have been contesting that while the ambit of indirect transfer has been made retrospective, the exclusion only applies prospectively from FY 2015-16. Thus, indirect transfer made prior to April 2015 will be subject to tax in India. The ITAT decision would come as a relief to foreign investors who can now take benefit of the thresholds prescribed under Explanation 6 and 7, a claim being denied by the tax authorities. It is useful to take note that the Hon'ble Delhi High Court in the case of Copal Market Research Limited had interpreted the term ‘substantially’ in Explanation 5 to cover transfer of shares of a company incorporated overseas, which derive more than 50% of their value from assets situated in India, and not otherwise. The decision was rendered before the insertion of Explanation 6 and 7. However by reading of Explanation 6 and 7 as being retrospective by the ITAT, the ruling provides additional benefit to certain category of foreign investors who may have otherwise not satisfied the 50% India assets value criterion. 

Yatin can be reached at yatin.sharma@aureuslaw.com. Views are personal.