In simple terms, buyback of shares is when a company repurchases the shares issued by it from the existing shareholders. The company buys back its shares usually at market value or higher. Companies use buy back as a means to return cash to shareholders and regain ownership. Section 115QA of the Income Tax Act, 1961 comprises of the provisions for tax on buyback of shares in India,
As per recent trends, one can observe an increasing use of buy back as means of capital restructuring by Indian companies. The following are certain objectives a company aims to achieve when it undertakes buyback:
Earlier, the amount distributed as buy-back of shares was chargeable to capital gains in the hands of the shareholders and not charged to the company. As a result, income tax was payable at lower rates on buyback of shares. In order to avoid the tax, companies started resorting to buyback of shares as an attractive way to distribute surplus income amongst stakeholders. As an anti-tax avoidance measure, the government introduced Section 115QA under the Income Tax Act vide the Finance Act, 2013.
Initially, section 115QA was applicable only to unlisted companies. However, the Union Budget 2019 announced the said section to be applicable to the listed companies as well. The amendment is effective for all buybacks post July 5, 2019, vide Finance Act (No.2) 2019.
The provision of Section 115QA is not applicable under all of the situations below:
A company repurchased 100 shares in January 2019 at the market price of INR 50. The issue price for the same is INR 10.
|Tax Liability||Prior to Amendment||Post Amendment|
|Company||No tax liability||The company is now liable for a buyback tax of 20% on the distributed income that is Rs. 40, the difference between market price and issue price (50-10).|
|Individual shareholder||Individual shareholders must pay capital gains tax (long term or short term) depending on holding period of shares on the difference amount between market price and issue Price which is INR 50 – INR 10 = INR 40||No tax liability|
Generally, a company that has a distributable surplus has two options to return cash to its shareholders:
Earlier, the declared dividend was chargeable as Dividend Distribution Tax (DDT) to the company and not the shareholder. Whereas the amount distributed as buy-back of shares was chargeable to the shareholder and not the company. The rationale for the introduction of Section 115QA was that companies would resort to buyback of shares in order to avoid dividend distribution tax. However, under Budget 2020, the finance minister abolished DDT i.e. Dividend Distribution Tax and the company is no longer liable to pay tax on dividends. Instead, the shareholder needs to pay tax on dividend at applicable slab rates. From the shareholder’s perspective, this means that income from buybacks is now more tax efficient than income from dividend.
No, when it comes to buyback of shares, the provisions under sections 10(34A) and 115QA of the Income Tax Act shall intervene. As per section 10(34A), any income arising to a shareholder (including ESOP-shares) on account of buyback of shares by the company shall be exempt in the hands of such shareholders. Further, as per section 115QA, the tax @ 20% shall be paid by the unlisted company on the buyback of its shares.
The tax on distributed income paid/ payable by the company shall be treated as final payment of tax. No further credit shall be claimed either by the company or any other person in respect of the amount of tax so paid. Further, income charged under section 115QA shall not be allowed any deduction under any other provisions of the Act either to the company or shareholders.