Taxmann’s Cross-Border Transactions under Tax Laws and FEMA by R. Subhashree & G. Gokul Kishore Edition July 2022
Income Tax (including International Tax & Transfer Pricing)
Goods & Services Tax (GST)
Customs
Foreign Exchange Management Act (FEMA)
This book will be helpful for practitioners, members of the bar & bench and industry, and assessing officers.
The Present Publication is the Latest Edition, authored by Dr. Gokul Kishore & R. Subhashree & updated till 15th June 2021, with the following noteworthy features:
Income Tax (including International Tax & Transfer Pricing)
Implications of International Transactions
Adoption of Appropriate Transfer Pricing (TP)
Comprehending Creation of Permanent Establishment (PE) and Double Taxation Avoidance Arrangements (DTAA)
Ensuring Compliance with Withholding Obligations, when payment is made to non-resident
Issues relating to Royalty & Fees for Technical Services (FTS), Tax Residency and Foreign Tax Credit (FTC)
GST
Examination of Cross-Border Services by applying Place of Supply & Export of Service provisions under Integrated Goods and Services Tax Act (IGST), besides analyzing benefits to exporters
Customs
Valuation of Imported Goods under Customs Valuation Rules, when transaction value as declared by importer is not accepted
Availing Customs Duty Exemptions
Duty Remission and Rewards under various Export Promotion Schemes as provided in Foreign Trade Policy
FEMA
Compliance with Provisions of FEMA on Receipts and Payments for Export and Imports
The structure of the book is as follows:
[First Chapter] on Customs Valuation discusses Article VII of GATT, Customs Valuation Agreement, Section 14 of Customs Act, 1962, Customs Valuation Rules (for imported goods) and Export Valuation Rules along with relevant judgments and orders. Pointers relating to transfer pricing issues have also been mentioned in this chapter.
[Second Chapter] on Transfer Pricing analyzes international transaction, associated enterprises, comparable, methods of determining Arms Length Price, TP challenges in India as per UN TP Manual and judicial rulings, creation of marketing intangibles and TP issues relating to AMP expenses. TP assessment, adjustment and appellate remedy have also been included. To provide 360’ perspective, secondary adjustment, Country by Country Reporting (CbCr), thin capitalization, Cost Contribution Arrangements, intra-group services and cost-sharing arrangements have been succinctly covered.
[Third Chapter] begins with the discussion on taxing powers and source of income. The concept of PE and types of PE have been explained through the relevant articles in various DTAAs along with treatment by the Indian judiciary and ITAT. The attribution of profits to PE, which has significant practical implications, has also been discussed.
[Fourth Chapter] is broad-based and to the extent relevant to cross-border transactions; it provides a commentary laced with practical guidance on residency, the definition of interest, jurisdiction to tax, dividends paid or received, taxation of royalty, FTS, salary, capital gains, other income, withholding obligations, FTC, the requirement to file the return and the concept of the representative assessee.
[Fifth Chapter] IGST as applicable to import and export of goods, import of services and export of services along with the provisions on the place of supply and refund mechanism forms the fifth chapter.
[Sixth Chapter] Considering the relevance to cross-border trade, Customs Duty exemptions and export promotion schemes under Foreign Trade Policy (FTP) have been discussed in the sixth chapter.
[Seventh Chapter] Knowledge of obligations and provisions applicable to export and import under FEMA and regulations thereunder is integral to cross-border transactions. Therefore, a concise commentary on the same has been provided in Chapter 7.
[Eighth Chapter] Dispute resolution mechanism under IGST Act and Customs Act along with alternative dispute resolution under Income Tax Act have been included in Chapter 8 to provide a broad overview on the statutory remedies available to exporters and importers.
[Ninth Chapter] The key feature of this book is an exhaustive discussion on both basic concepts and issues faced by the industry combined with essential commentary on statutory provisions and the jurisprudence.
Cross-references to other chapters wherever implications need to be understood completely have been provided to assist the industry.
Subhashree is an Advocate practising direct tax and indirect tax laws. Before starting an independent practice, as part of Lakshmikumaran & Sridharan, she had represented the industry before the ITAT and appellate authorities.
She focuses on domestic and international taxation and has advised the industry on structuring, residency, withholding obligations, FTS, royalty and applicability of DTAA. She is a regular writer on direct tax changes and major rulings for the past 13 years. Her articles have been published in Financial Express, Taxmann, etc.
Dr. G. Gokul Kishore is an indirect tax expert with 25+ years of experience. He is an Advocate and advises and represents the industry on GST and Customs Laws.
During his association with Tier-I law firm Lakshmikumaran & Sridharan, he had guided both large and mid-size companies and service providers through legal opinions, tax compliance reviews, input tax credit reviews, GST implementation measures, pre-incorporation indirect tax advisory, exit strategy from an indirect tax perspective and anti-profiteering investigations and proceedings. He has assisted members of the industry from various sectors like iron and steel, FMCG, cement, electrical appliances, machinery, pharma, auto, project engineering, travel, real estate and education.
Dr. Kishore has published over 230 articles, including research papers in print and online media like Financial Express, Taxmann, Excise Law Times, etc. He obtained his doctorate in indirect taxation
Contents
About the Authors
Preface
Chapter-heads
List of Cases
2.6 4RANSFER PRICING CHALLENGES IN )NDIA AS PER THE 5. 40
-ANUAL AND JUDICIAL RULINGS 184
2.7 #REATION OF MARKETING INTANGIBLES AND TRANSFER PRICING
ISSUES REGARDING !-0 EXPENSES 191
2.8 4RANSFER 0RICING ASSESSMENT
2.10 #OST #ONTRIBUTION !RRANGEMENTS ##!
)NTRA
GROUP
SERVICES AND COST SHARING ARRANGEMENTS 205
3
PERMANENT ESTABLISHMENT & DTAAs
3.1 4AXING POWERS AND SOURCE OF INCOME 209
3.2 #ONCEPT OF 0ERMANENT %STABLISHMENT 215
3.3 4YPES OF 0ERMANENT %STABLISHMENT 224
3.4 !TTRIBUTION OF PROFITS TO 0% 272
4
INCOMES OTHER THAN BUSINESS INCOME,
WITHHOLDING OBLIGATIONS AND FOREIGN TAX
CREDIT
4.1 2ESIDENCY 287
4.2 )NTEREST
$EFINITION
JURISDICTION TO TAX 305
4.3 $IVIDENDSPAIDOR RECEIVEDINCROSS
BORDER TRANSACTIONS 313
4.4 4AXATION OF ROYALTY 329
4.5 &EES FOR 4ECHNICAL 3ERVICES 358
4.6 3ALARY 388
4.7 #APITAL GAINS 397
4.8 /THER INCOME 409
4.9 7ITHHOLDING OBLIGATIONS 413
4.10 &OREIGN 4AX #REDIT 425
4.11 2EQUIREMENT TO FILE RETURN OF INCOME 439
4.12 2EPRESENTATIVE ASSESSEE 440
#/.4%.43 I-14
0!’%
5
IMPORT & EXPORT UNDER IGST ACT
5.1 3TATUTORY FRAMEWORK 443
5.2 )MPORT AND EXPORT OF GOODS UNDER )’34 !CT 446
5.3 0LACE OF 3UPPLY 453
5.4 )MPORT OF 3ERVICES 496
5.5 %XPORT OF 3ERVICES 511
5.6 2EFUND TO EXPORTERS UNDER )’34 !CT AND RULES 520
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