

Tiger Global ruling may complicate tax insurance for M&As, caution advisers
Subscribe to enjoy similar stories. Insurers may not readily offer tax liability insurance for merger and acquisition (M&A) deals and will subject them to stricter scrutiny given the risks of retrospective taxes, consulting and law firms cautioned, days after the Supreme Court ruled that Tiger Global must pay capital gains tax on its Flipkart share sale years ago.
Even if insurers provide cover for such deals, they are likely to charge higher premiums and tighten terms to account for potential tax and legal risks, they added. “The entire availability of insurance to protect a seller’s tax liability in such situations may undergo a fundamental change.
We will now have to wait and watch how willing insurance companies are to underwrite treaty-related tax risks in future transactions," said Ankur Nishar, partner-tax at KPMG India at a webinar. On 15 January, the Supreme Court (SC) ruled that US-based private equity firm Tiger Global must pay India capital gains tax on its $1.6 billion Flipkart stake sale to American retail giant Walmart in 2018.
Tiger Global's request for a tax exemption citing the Mauritius tax treaty was rejected by the tax department, but upheld by the Delhi High Court. However, the SC’s ruling overturned the HC verdict, making Tiger liable to pay tax in India, in what became a precedent-setting verdict for investors from countries with which India has tax treaties.
"In our view, once it is factually found that the unlisted equity shares, on the sale of which the assessees derived capital gains, were transferred pursuant to an arrangement impermissible under law, the assessees are not entitled to claim exemption under Article 13(4) of the DTAA. The Revenue has proved that the transactions in the instant
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