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    ARTICLE - India

    Angel Tax Valuation Rules – recent changes

    05 Nov

    Angel Tax Valuation Rules - Introduction

      The Central Board of Direct Taxes (CBDT) announced changes to the so-called Angel Tax provisions.   It did this through a notification dated 25 September 2023.   The notice has made amendments to Rule 11UA of the Income-tax Rules, 1962, which outline the methodology for calculating the fair market value (FMV) of unlisted equity shares and compulsorily convertible preference shares (CCPS) under Section 56(2)(viib) of the Income-tax Act, 1961.    Section 56(2)(viib) is commonly known as the "Angel Tax" provision.  

    What are the Angel tax provisions?

      The Angel Tax provisions apply when a company not substantially owned by the public (private or unlisted public company) issues shares at a premium that exceeding the FMV of the shares.   The excess amount received is treated as income from other sources.   

    Changes from 1 April 2023

     

    General

      Prior to April 1, 2023, Angel Tax applied only to shares issued to Indian tax residents but now extends to shares issued to non-residents.   The amendments introduce flexibility in valuation methods and incentivize venture capital investments, with the following notable provisions:  

    Types of Valuation Methods

      The issuer company can choose from various valuation methods, including new methods for non-resident investors and venture capital investments  

    Methods for Non-Resident Investors

      Five new valuation methods (e.g., Comparable Company Multiple Method) have been introduced for shares issued to non-resident investors.   These methods must be computed by a Category I merchant banker registered with the Securities and Exchange Board of India (SEBI).  

    Methods for Venture Capital Undertakings

      The FMV of equity shares issued to venture capital investors can be used as a benchmark for shares issued to other investors within a specific period.  

    Methods for Notified Investors

      The valuation method for unquoted equity shares issued to Notified Investors is used as a benchmark for shares issued to other investors within a set period. Notified Investors are specified in Notification No. 29/2023 dated May 24, 2023.  

    Valuation of CCPS

      The FMV of CCPS can be determined using the DCF method or new valuation methods based on the type of investor or FMV of unlisted equity shares.  

    Valuation date

      The valuation date allows the use of a valuation report issued up to 90 days before the date of share issuance.  

    Safe harbour

      A safe harbour  provision permits a tolerance limit of 10% between the issue price and FMV.   If the difference does not exceed 10%, the issue price is considered the FMV.  

    Start ups?

      The Angel Tax provisions also apply to startups receiving investments from non-residents, with exceptions based on specified conditions.  

    Conclusion

      While these measures are welcomed, Indian companies continue to face scrutiny regarding share premiums and valuation methods.    An observation is that Indian tax authorities often challenge valuation methodologies and assumptions, focusing on increasing the tax base by treating undervalued share issuances as income from other sources.    If you have any queries about the Angel Tax Rules, or any other Indian tax matters, then please get in touch.
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