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Approval of loan agreements/ long term infrastructure bonds and rate of interest for the purpose of Section 194LC of the Income-tax Act,
September, 24th 2012
                                          CIRCULAR NO. 07/2012

                   F.No. 142/17/2012-SO(TPL)
                      Government of India
                       Ministry of Finance
                     Department of Revenue
                 (Central Board of Direct Taxes)
                             ---------
                                          Dated: September 21, 2012
Subject: Approval of loan agreements/ long term infrastructure
         bonds and rate of interest for the purpose of Section
         194LC of the Income-tax Act, 1961- regarding.

       The Finance Act, 2012 has introduced section 194LC in the
Income Tax Act. This section provides for lower withholding tax at
the rate of 5% on interest payments by Indian companies on
borrowings made in foreign currency by such companies from a
source outside India. There are principally two modes of borrowing
(referred to as "monies borrowed" in the said section) which are
covered, subject to approval of the Central Government:




     a.    Monies borrowed under a loan agreement
     b.    Long term Infrastructure Bonds

2.     It is further provided that the rate of interest on such
borrowings, for the purpose of eligibility under the section 194LC,
shall be as approved by the Central Government.

3.   The lower rate of withholding tax is for monies borrowed or
bonds issued during the period from 1.7.2012 to 30.6.2015.

4.    Therefore, the approval of the Central Government is required
in respect of both the loan agreement or bond issue and the rate of
interest to be paid on such borrowings.

5.    Considering the fact that there would be a large number of
cases of overseas borrowings or bond issues to be undertaken by
Indian companies, providing a mechanism involving approval in each
and every specific case would entail avoidable compliance burden on
the borrower/issuer of bond. In order to mitigate the compliance
burden and hardship, the Central Board of Direct Taxes [with the
approval of Central Government] hereby conveys the approval of
Central Government for the purposes of section 194LC in respect of
the loan agreements and issue of long term infrastructure term bond
by Indian companies which satisfy the conditions mentioned in
paras A, B and C below: -



                            Page 1 of 3
A.   In respect of agreements for loan
     a.    The borrowing of money should be under a loan
           agreement.
     b.    The monies borrowed under the loan agreement by the
           Indian company should comply with clause (d) of sub
           section (3) of section 6 of the Foreign Exchange
           Management Act, 1999 read with Notification No.
           FEMA3/2000-RB viz. Foreign Exchange Management
           (Borrowing or Lending in Foreign exchange) Regulations
           2000, dated May 3, 2000, as amended from time to time,
           (hereafter referred to as "ECB regulations"), either under
           the automatic route or under the approval route.
     c.    The borrowing company should have obtained a Loan
           Registration Number (LRN) issued by the Reserve Bank
           of India (RBI) in respect of the Agreement.
     d.    No part of the borrowing has taken place under the said
           agreement before 1st July, 2012.
     e.    The agreement should not be restructuring of an
           existing agreement for borrowing in foreign currency
           solely for taking benefit of reduced withholding tax rates.
     f.    The end use of the funds and other conditions as laid
           out by the RBI under ECB regulations should be
           followed during the entire term of the loan agreement
           under which the borrowing has been made.

B.   In respect of issue of Bonds

     a.    The bond issue by the Indian company should be
           authorized under ECB regulations either under the
           automatic route or under the approval route.
     b.    The bond issue should have a loan Registration Number
           issued by the RBI.
     c.    The term "long term" means that the bond to be issued
           should have original maturity term of three years or
           more.
     d.    The bond issue proceeds should be utilized in the
           "infrastructure sector" only.
     e.    The term "infrastructure sector" shall have same
           meaning as is assigned to it by RBI under the ECB
           regulations.

C.   Rate of interest

     Further, the Central Government has also approved the
     interest rate for the purpose of section 194LC as any rate of
     interest which is within the All-in-cost ceilings specified by the
                             Page 2 of 3
      RBI under ECB regulations as is applicable to the borrowing
      by loan agreement or through a bond issue, as the case may
      be, having regard to the tenure thereof.

6.     In view of the above, any loan agreement or bond issue, which
satisfies the above conditions, would be treated as approved by the
Central Government for the purposes of section 194LC.

7.     In the case of other long-term Infrastructure Bonds where the
Indian company receives subscription of such Bonds in foreign
currency and such bond issue is not covered under ECB regulations,
the approval, for purpose of section 194LC shall be on case to case
basis.




8.     The Indian company, for the purpose of obtaining the
necessary approval u/s 194LC in respect of such long-term bond
issue, may, therefore, apply in writing to Member (IT), Central Board
of Direct Taxes with the relevant details of the purpose, period and
rate of interest.

                                                     (Ashish Kumar)
                                  Director (Tax Policy & Legislation)

Copy to:-

1.    PS to FM/OSD to FM/OSD to MoS(R).
2.    PS to Secretary (Revenue)/OSD to Advisor to FM.
3.    The Chairman, Members and all other officers in CBDT of the
      rank of Under Secretary and above.
4.    All Chief Commissioners/Director General of Income-tax ­ with a
      request to circulate amongst all officers in their regions/charges.
5.    DGIT (Systems)/ DGIT (Vigilance)/ DGIT (Admn.)/ DG (NADT)/
      DGIT (L&R).
6.    Media Co-ordinator and Official spokesperson of CBDT.
7.    DIT(IT)/DIT(RSP&PR)/DIT(Audit)/DIT(Vig.)/DIT(Systems)/
      DIT(O&MS)/ DIT(Spl. Inv.).
8.    The Comptroller and Auditor General of India (30 copies).
9.    Joint Secretary and Legal Advisor, Ministry of Law and Justice, New
      Delhi.
10.   The Institute of Chartered Accountants of India, IP Estate, New
      Delhi.
11.   All Chambers of Commerce as per usual mailing list.

                                                        (Ashish Kumar)
                                     Director (Tax Policy & Legislation)




                              Page 3 of 3
 
 
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