105. Avoidance of tax through transfer of assets.-
(1) Any income whichbecomes payable to a non-resident by virtue, or in consequence, of any transfer of assets, whether alone or in conjunction with associated operations, shall be deemed to be the income of the person who-
(a) has acquired, by means of such transfer or associated operations, any right by virtue, or in consequence, of which he has power to enjoy, whether forthwith or in future, the income which becomes so payable to the non-resident, or
(b) has received or is entitled to receive at any time, for reasons attributable to such transactions or associated operations, any sum paid or payable by way of loan or repayment of loan or any other sum, not being a sum paid or payable as income or for full consideration of money or money's worth.
(2) The income which becomes payable to a non-resident and is deemed under sub-section (1), to be the income of the person referred to therein shall be so deemed for all purposes of this Ordinance, whether such income would or would not have been chargeable to tax apart from the provisions of this section.
(3) The provisions of this section shall not operate if it is shown to the satisfaction of the Deputy Commissioner of Taxes-
(a) that neither the transfer nor any associated operation had for its purpose, or for one of its purposes, the avoidance of liability to taxation; or
(b) that the transfer and all associated operations were bona fide commercial transaction and were not designed for the purpose of avoiding liability to taxation.
(4) Where any person has been charged to tax on any income which is deemed under sub-section (1) to be his income, that income shall not again be deemed to form part of his income for the purpose of this Ordinance if it is subsequently received by him whether as income or in any other form.
(5) A person shall, for the purposes of this section, be deemed to have power to enjoy the income payable to a non-resident if-
(a) such income is in fact so dealt with as to be calculated to ensure at any time for the benefit of such person in any form; or
(b) the receipt or accrual of such income operates to increase the value of any assets held by such person or for his benefit; or
(c) such person receives or is entitled to receive at any time any benefit provided or to be provided-
(i) out of such income; or
(ii) out of money which is, or will be, available for the purpose by reason of the effect or successive effects of associated operations on such income and on any assets representing the income ; or
(d) such person has, by means of the exercise of any power of appointment, revocation or otherwise, power to obtain for himself, with or without the consent of any other person, the beneficial enjoyment of such income; or
(e) such person is able to control, directly or indirectly, the application of such income, in any manner whatsoever.
(6) In determining whether a person has power to enjoy income, regard shall be had to the substantial result and effect of the transfer and any associated operations, and to all benefits which may at any time accrue to such person as a result of the transfer and associated operations irrespective of the nature or form of the benefit.
Explanation.- For the purposes of this section-(a) "assets" includes property or rights of any kind and "transfer", in relation to assets being rights, includes creation of those rights;
(b) "associated operation", in relation to any transfer, means an operation of any kind effected by any person in relation to -
(i) any of the assets transferred; or
(ii) any income arising from such assets; or
(iii) any assets representing, directly or indirectly, any of the assets transferred, or the accumulation of the income arising from such assets;
(c) "benefit" includes a payment of any kind;
(d) references to assets representing any assets transferred, or any income or accumulation of income arising there from, includes references to shares in or obligation of any company to which, or the obligation of any other person to whom, any such assets or that income or accumulation of income is or has been transferred; and
(e) any body corporate incorporated outside Bangladesh shall be treated as if it were a non-resident.
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