Management Consultant
26 Points
Joined January 2009
Let me bring about my experiences in association with one such ADR issue.
The ADR issue is guided by FEMA / RBI Notifications. The sponsored ADR issue is guided by FEMA Notfn 41/2001-RB dated March 2, 2001
The RBI’s regulation A.P. (DIR Series) Circular No. 52 dated 23rd November 2002 discusses about the sponsored ADR / Divestment by shareholders of their holdings of Indian companies, in the overseas markets.
The gist of the said regulations is that, the process of divestment would be initiated by such Indian companies whose shares are being offered for divestment in the overseas market. As per Indian regulations, only a Company can sponsor an ADR. However, SEC regulations also allows the Depository / or other interest parties so sponsor an ADR (Depending on the level of ADR).
The RBI guidelines also stipulate that, the sponsoring Company shall pass on all the proceeds to its participating share holder, after deducting expenses.
I presume, it is these expenses for which the Dept is demanding Service Tax. Obviously, the demand is being made under the draconian reverse charge mechanism. In such cases, the moot point would be rather who primarily brings the services into India and not who ultimately consumes it. As these expenses are deducted and passed on to the share holders who are participating the ADR issue, I presume the Dept expects M/s Infosys Technology Ltd to deduct the Service Tax portion too.
In this respect, the thorough study of the SCN is required before commenting on whether the notice is frivolous / flippant or serious. I request the forums members to post any information on the SCN / gist of the SCN before discussing about the merits of the SCN.
With Regards
Harsha R N