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The Supreme Court of India ruled against Tiger Global's Mauritius-based entities, holding that capital gains from exit from Flipkart shares are taxable. It overturned the Delhi High Courts 2023 decision, restored the AAR s approach, and reaffirmed anti-avoidance principles and substance-over-form. The ruling significantly impacts treaty-based structures using Mauritius residency, TRCs, and grandfathering under the India Mauritius DTAA.
Transaction Overview and Background of the case
- Tiger Global invested in Flipkart through multiple Mauritius-incorporated entities between 2011 and 2015. These investments were exited in 2018 pursuant to Walmart s acquisition of Flipkart. Before the Authority for Advance Ruling (AAR), the company sought:
- A declaration that gains were exempt under Article 13(4) of the India Mauritius DTAA, relying on grandfathering provisions; and
- A NIL withholding tax certificate, contending that the Mauritius entities were eligible treaty residents.
- The Revenue challenged the claim, alleging that the Mauritius entities were conduit/shell entities with no commercial substance, the structure was designed primarily to obtain treaty benefits, and the case involved prima facie tax avoidance, triggering the bar under relevant provision of law for AAR to conclude
- AAR declined to admit the applications due to prima facie tax avoidance. The taxpayer appealed before Delhi High Court (HC), Delhi HC set aside the AAR order in 2023, holding that valid TRCs were sufficient and that the AAR exceeded its jurisdiction at the admission stage.
- Revenue appealed before Supreme Court, which has allowed the Revenue s appeal and reversed the High Court s decision in a landmark decision
Key Findings of the Supreme Court
Scope of Section 245R(2) Threshold of Prima Facie Avoidance
The Supreme Court held that section 245R(2) requires only a prima facie satisfaction that the arrangement is designed to avoid tax. At the admission stage, the AAR is not required to conduct a full adjudication. If material on record indicates treaty shopping or lack of commercial substance, the AAR is statutorily barred from entertaining the application, and the High Court erred in applying an unduly high evidentiary threshold.
Treaty Benefits Are Not Automatic TRC Is Not Conclusive
While acknowledging the evidentiary value of a Tax Residency Certificate, the Court held that a TRC does not override anti-avoidance provisions and that treaty entitlement must be tested against economic substance and commercial reality. Treaty benefits can be denied where the structure is artificial or contrived, even if formal residency requirements are met.
Substance Over Form and Commercial Reality
The Court emphasized the absence of commercial operations, employees, or decision-making in Mauritius, centralized control and economic ownership outside Mauritius, and the interposition of Mauritius entities solely to access treaty benefits, supporting the Revenue s contention that the structure lacked commercial substance.
Interaction with Grandfathering Provisions
The Court rejected the argument that grandfathering under the amended India Mauritius DTAA grants blanket immunity, holding that grandfathering protects genuine investments, not abusive or avoidance-driven arrangements, and that anti-abuse provisions and domestic law safeguards continue to apply.
Comparative positions of the Delhi High Court v/s the Supreme Court
|
Delhi High Court |
Supreme Court |
|---|---|
|
TRC sufficient to claim treaty benefit |
TRC is only evidentiary, not determinative |
|
AAR cannot examine avoidance at admission stage |
AAR must refuse admission if prima facie avoidance exists |
|
Grandfathering provides strong protection |
Grandfathering does not protect abusive structures |
|
Limited scrutiny at preliminary stage |
Substance-based scrutiny is essential |
The Supreme Court decisively reaffirmed the AAR s duty to screen out tax-avoidance applications at the threshold.
Key Implications for Foreign Investors
Treaty-based holding structures (Mauritius/Singapore) will face heightened scrutiny. Reliance solely on TRCs and legal form is insufficient without demonstrable substance. Advance rulings may not be available where tax avoidance is even prima facie alleged. The judgment strengthens the Revenue s hand in invoking General Anti Avoidance Rule (GAAR) aligned principles, even where GAAR itself is not expressly applied.
Our Comments
The Tiger Global ruling marks a shift towards robust anti-avoidance enforcement in India. Treaty benefits depend on commercial substance, and procedural safeguards cannot shield aggressive tax planning.
In the light of this ruling, foreign investors and fund managers should proactively reassess both existing and legacy holding structures to ensure that treaty positions are supported by demonstrable commercial substance, governance, and decision-making aligned with the jurisdiction of residence. Reliance solely on Tax Residency Certificates or grandfathering provisions may no longer be sufficient to withstand scrutiny. Exit planning for Indian investments should factor in potential Indian capital gains exposure, even for pre-2017 investments, and transaction documentation should clearly evidence commercial rationale and risk assumption. Investors should also anticipate increased scrutiny in advance ruling and withholding tax proceedings and plan for a more litigation-intensive environment in treaty-based exits.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
