The proviso to the section states that debt issued by unrelated lender with an underlying explicit or implicit guarantee by associated enterprise to such lender or in case of deposits with such lender shall be deemed to be issued by associated enterprise.
There is no clarity whether such lender is non-resident or resident in India.
Further, enterprises in developed countries borrow funds at lower interest rates and lend the same to their associated enterprises in other tax jurisdiction at higher interest rates to take advantage of interest arbitrage opportunities.
Since India is a developing country, the rates of tax are higher than the developed countries.
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Also, it remains to be seen that how the provisions of limiting interest deduction be construed by tax authorities in case of accounting treatment with respect to dividend of preference shares recharacterised as 'interest' under Ind AS 109 Financial Instruments. As per the Memorandum to the Finance Bill, 2017, it is mentioned that the newly proposed section is in line with the recommendations of OECD BEPS Action Plan 4.
The proposal does not provide computation methodology for 'Earnings before interest, taxes, depreciation and amortisation' (EBITDA).
Some methodologies provided by BEPS Action in this respect are as below:- - Group wide interest allocation rule, which enables an entity to deduct interest expense up to an interest cap, equal to an allocation of the group's net third party interest expense based on a measure of earnings.Keeping up with the trend and in line with Organisation for Economic Cooperation and Development (OECD) recommendation in its Base Erosion and Profit Shifting (BEPS) project- Action Plan 4 Interest Deductions And Other Financial Payments, India has also announced Thin Capitalisation Rules by way of limiting interest deduction, also known as 'Earnings Stripping Approach'.It is proposed to introduce new section 94B to restrict interest deduction claimed by Indian company or permanent establishment of foreign company in India in respect of debt issued by non-resident associated enterprise exceeding 30% of earnings before interest, taxes, depreciation and amortisation (EBITDA) of borrower enterprise.One would arrive at this conclusion after going through documents released at the recently concluded International Monetary Fund (IMF)/World Bank (WB) annual meetings.The unfortunate aspect of such MIs' THE BEPS project is now almost 4 years old.