The Government of India has shown its sincerest efforts to establish that it is pro-business and has made several amendments to the Income-tax Act, 1961 (the Act) which are very beneficial to investors into India. It has also balanced by introducing several schemes for the poor especially, the continuation of MNREGA as just confirmed by Prime Minister Modi in Parliament yesterday. The Government has been lucky in various aspects one of which is the tumbling oil prices in the last few months and it seems to be even lucky that the oil prices are not likely to go up in the near future. Ten and billions of dollars have been saved by the Government only due to this. This has helped in not only achieving an ambitious fiscal deficit but has also encouraged the Government to further aspire to reduce the fiscal deficit to as low as 3% in the next few years. Even the opposition parties will have to accept now that this is achievable target. The inflation too has come down and the sprouts of industrial growth and foreign investments into India have started to show signs. No one seems to be pessimistic about the Indian economy and with catching phrase like 'Make in India' by the Government has only drawn more attention by the global investors.
The new Government is still young which is just nine months old but the efforts shown by it with regard to development is well heard in all corners or at least well debated. The Government is very keen in bringing back the black money into the country which will help it to further narrow down the fiscal deficit rift and may give space to it to not to be in a hurry on disinvestments of profitable public sector undertakings. Stringent provisions are being made in the Act and even new laws are to be enacted to handle black money issue. While the message to the global investors is loud and clear to invest in India but not at the cost of tax evasion.
On direct tax front, various positive changes have been made such as; GAAR has been deferred by another two years admitting that it is not the best time to introduce it when the tax department (revenue) is yet to be fully equipped. To attract fund managers to operate from India it is being clarified that they will not be treated as business connection (BC) or permanent establishment (PE) and that the offshore fund which is managed from India will also not be treated as an Indian fund though controlled from India to avoid Indian taxes. Further benefits to the sponsors of REITs and InVITS through concessional capital gains treatment have been provided. Rollback to 10% withholding tax (WHT) for royalty and fees for technical services (FTS) payments abroad to attract transfer of technology into India and to encourage small entrepreneurs. As a major breakthrough, the word 'substantially' in Explanation 5 to section 9(1)(i) has been defined in an acceptable manner including a de minimis exemption to small investors directly/ indirectly in Indian assets. Steps to make Rules to provide Foreign Tax Credit (FTC) benefits which is almost a dead letter law under the Act especially in a situation when Indian companies have global operations having significant foreign source income/ loss and payment of taxes and excess credits lying with them is a welcome move. Relief to FIIs from implication of MAT on the tax exempt capital gains earned by them (LTCG on listed securities) from being included in the book profits while computing MAT. Other forms of venture capital entities like LLPs have been included for pass through tax benefit for investors and investments in LLPs and trusts have also been acknowledged. Clarity on the interest payments made by Indian PE to its Head Office or other PEs outside country that taxes have to be withheld to enjoy tax deduction in India on the PE's income. Reduction on corporate income tax to 25% from 30% with certainty of its operation (i.e. from FY 2016-17 to FY 2019-20) is a push for operations from India by global investors.
The above seems to be very welcome moves by the Government to show that it is no more a Shylock when it comes to tax collection and is even capable of forgoing its invaluable direct tax collections. Indeed, the Fin Min admitted that due to these appeasing changes the Government's coffer will lose around INR 80 billion in the next financial year, which, though will be balanced through indirect tax collections.
But the Government has not yet bitten the bullet with regard to the retrospective tax to section 9(1)(i). Though the retrospectively amended section has not yet earned even a dime for the Government, the Government is neither able to spit it nor swallow it. It wants to both have the cake and also eat it. The Fin Min conveniently pushed the ball to CBDT's court saying that it will look into it. An early settlement on the principal tax alone on the half a dozen indirect transfers and making the law prospective will look more satisfactory and laudable in the minds of the foreign investors.
The Direct Tax Code seems gradually being buried as the Fin Min stated that much of its provisions are slowly being roped into the current Act or that a better direct tax regime is required.
Overall, we cannot deny in giving credit to the Fin Min and the Government to have shown as much positivity to foreign investors to invest in India and that direct taxes will no more be a spike for them.
DIRECT TAX AMENDMENTS
All provisions amended are applicable from Assessment Year (AY) 2016-17 onwards unless otherwise mentioned. The Act means the Income-tax Act, 1961.
Place of Effective Management (POEM) of Foreign Companies in India
To start with (a) POEM, amendment has been made to section 6(3) of the Act by replacing the words 'wholly' situated in India to POEM. A company will be treated to be an Indian company for income tax purposes and its worldwide income will be liable to tax in India if it is an Indian company (i.e.) either incorporated in India or if it has its POEM in India. POEM has been defined vide an Explanation as 'a place where key management and commercial decisions that are necessary for the conduct of the business of an entity as a whole are, in substance made'. Previously, a higher threshold was prevalent to treat a foreign company as Indian only when it was 'wholly' controlled from India has now been diluted and even if key decisions are taken from India, it will be treated to be an Indian company for tax purposes. This is in line with Direct Tax Code (DTC) proposals. Now the directors of foreign companies have to be doubly cautious before taking any decisions from India to avoid double taxation in India and in the country where such foreign company is situated.
The term 'Substantially' has been defined in Section 9
After a huge hue and cry by investors, recommendation made by the Dr. Shome committee and a recent Delhi High Court judgment reading down the term 'substantially' found in Explanation 5 to section 9(1)(i) of the Act, the Government has finally defined the term in the Act itself. The definition is a welcome one and does not seem to be adversarial to the foreign investors investing indirectly into Indian assets (shares). The key aspects of the definition of the term 'substantially' for the purpose of treating shares or interest in a foreign company to be situated in India inter alia are as follows:
- The value of the Indian assets through which such foreign shares or interests should exceed INR 100 million and such assets represent at least 50% of the value of all the assets owned by such foreign company or entity. Value of the assets means the fair market value (FMV) of such assets.
- Rules will be prescribed to determine the FMV of the Indian assets and global assets
- In any case, Indian taxes would be on proportional basis and not the entire gain will be taxed in India. That is, only to the extent the Indian assets contribute to the value of the shares or interest will be liable to tax in India.
- De minimis exemption to small shareholders along with its associated enterprises (AE) who do not have any right of control or management of the foreign company or their total voting power or share capital or interest does not exceed 5% of the total voting power, etc. of the foreign company directly holding assets in India
- The same is the case in case of indirect holding of assets in India i.e. through an intermediary holding company
- In case of group reorganizations like amalgamation or demerger among foreign companies, these indirect transfer provisions will not apply
- The Indian company through which the foreign shares and interests derive their value shall have reporting compliances of any change in shareholding pattern. Failing which, 2% of value of such transactions will be imposed as penalty on the Indian company or INR 500,000 in any other case.
These changes will come into effect from Assessment Year (AY) 2016-17 i.e. Financial Year (FY) 2015-16. Since Explanation 5 continues to be retrospective, these changes could have also been retrospective.
Reduced WHT for Royalty and FTS
In order to encourage transfer of technology and knowhow into India from foreign companies, the Government has brought back the reduced WHT rate of royalty and FTS on payments to non-residents to 10%. Finance Act, 2013 increased the rate to 25% citing that many double tax treaties (DTAAs) itself do not have such reduced rates. By this foreign companies were compelled to treaty shop to transfer technology into India via a jurisdiction which imposes less tax rates. By bringing it back to 10% not only will there be free flow of transfer of technology but also treaty shopping vis-a-vis reduced WHT for royalty and FTS will be reduced. For example, the tax rate on royalty as per India-Mauritius treaty is 15% and that of Singapore is 10%. Now the need to set up a company in low tax jurisdiction for the purpose of lesser WHT on royalty and FTS does not arise as the Act itself has reduced the rate to 10% whether or not India has a treaty with the jurisdiction from where the transfer of technology happens.
Interest payments made to Head Office (HO) by PEs are liable to WHT and consequent deduction
While PEs are treated as extension of the foreign entities, few case laws at the Income Tax Appellate Tribunal (ITAT) level were holding whether interest payments made by such PEs on borrowed capital to their HOs situated in foreign jurisdictions should be subject WHT by treating such PEs as a separate entity for this purpose. This is more relevant to foreign banking companies as they have restrictions in setting up their subsidiaries in India as per RBI regulations. The views were divergent among ITATs where some holding that no WHT is required as it is a self payment within the same company as PE is only a branch and at the same time since DTAAs treat PEs as separate entities they are entitled for tax deduction on such interest payments against Indian tax liabilities. Others case laws held that such PEs are subject to WHT as deductions are enjoyed by them and this view was buttressed by a 1996 CBDT circular.
In order to put this issue at rest, an Explanation to section 9(1)(v) has been introduced stating that Indian PEs of foreign banks will be treated as separate entities and any payments to HO or other PEs of the group will be liable to WHT. Such PEs will also be liable to tax on their income in India as per the DTAAs and the Act albeit giving deductions on such interest payments.
Fund Managers (FM) of Offshore Funds (OSF) investing into India will not be treated as Business Connection (BC) or PEs in India nor will such Offshore Funds be treated as an Indian Fund
In order to attract offshore fund managers who are dispersed across the globe to India and to conduct their businesses from India, a new section 9A has been introduced in the Act to state that such FM will not be treated as BCs/ PEs of such OSF and the income earned by such OSF will not be liable to tax in India through such FMs on proportionate basis as per the DTAAs or the Act. Similarly, the OSF will not be treated as an Indian Fund merely because the FM is located in India which otherwise will make it an Indian Fund as per section 6(4) of the Act.
However, only eligible funds and eligible fund managers are entitled for the above benefits. The conditions to be fulfilled by them to enjoy the above benefits are:
The OSF has to fulfil:
- The OSF is not an Indian resident and it is located in a jurisdiction with which India has comprehensive or limited DTAA
- Participation in such OSF by Indian residents is not more than 5% and that such fund has at least 25 unrelated members
- No member of the fund along with other members should have controlling interest more than 10%
- Not more than 50% participation interest should devolve upon 10 or less members of the fund
- The fund shall not invest more than 20% of its corpus in an entity and the fund should have a monthly average of INR 10 million including at the time of its creation
- The fund shall not carry on any business in India and should not have a BC in India other than the FM who acts on behalf of the OSF
- The remuneration paid to the FM by the OSF for his services should be at arm's length
The FM has to fulfil:
- The FM is not an employee of the fund or its connected person
- The FM is a registered with concerned regulators or is a registered investment advisor
- The FM is acting in the ordinary course of his/ her business as FM
- The FM along with his connected persons shall not be entitled more than 20% of the OSF profits as remuneration
The OSF shall have certain reporting requirements every year within 90 days from end of FY by way of filing certain statements to the revenue containing such details as may be prescribed failing which it will attract a penalty of INR 500,000.
Changes in relation to investment by Venture Capital (VC) Funds and Companies in VC Undertakings
In order to expand the scope of investments by VC, amendment has been made to the Act that investment could be made not only into VC Undertaking which is a company but could also be trusts, LLPs. etc and at the same time the investment need not be made only by VC Company and VC Fund which is a trust it could also be made by LLPs, etc.
Beneficial tax treatment to Alternative Investment Funds (AIFs/ Investment Funds)
AIF Category-I Funds are usually angel brokers or venture capital funds which invest in early stage ventures. AIF Cat-II Funds more like Private Equities which invest in slightly grown up ventures and AIF Cat-III Funds are more complex investment strategies. In order to rationalize the tax treatment of such AIFs, a New Chapter XII-FB has been introduced in the Act among other amendments to various other sections in the Act. The AIFs/ Investment Funds can be trusts, companies or LLPs.
The taxation of the investment funds and the investors into them (Unit Holders) are as follows:
- The investment made by the fund into the underlying entities and the income earned by such UHs will be treated as if directly made by them in the underlying investee companies
- Only business income will be liable to tax in the hands of the fund and other incomes will be exempt. In the sense, any income other than business income, such as capital gains and income from other sources will be liable to tax directly in the hands of the UHs and the fund is required to pay tax only on the business income
- Business income which suffers tax in the hands of the fund when repatriated to the UHs will be exempt in their hands thereby, avoiding double tax.
- While making income from other sources like interest, dividends, etc payments to the UHs by the fund which does not suffer tax at the fund level there will be WHT at the rate of 10% by the fund
- The nature of the income in the hands of the UH will be same as received by the fund
- If the fund incurs any loss on any income, such loss cannot be passed on to the UHs. Rather the fund should carry forward the same to next year and offset against its tax liability
- Dividend Distribution Tax (DDT) and Buy Back Distribution Tax (BBDT) shall not apply to income distributed by the fund to the UHs
- Any income received by the fund will not be subject to WHT by the payers
- The fund should file its return of income and shall furnish such information to the revenue as prescribed.
Beneficial tax treatment to sponsors of REITs and pass thru benefit for REITs
Vide Finance Act (No. 2), 2014 i.e. last July Budget by the same Fin Min, REITs taxation regime was introduced. In this, a sponsor who holds shares in an unlisted company (SPV) can exchange his shares in the SPV for the units of the REITs. He is not required to pay tax at the time of this exchange but is required to pay tax when the units are sold. Preferential tax treatment is not allowed at the time of transfer of such units by the sponsor i.e. he is not entitled for the 15% tax in case of short term capital gain (STCG) and exemption in case of LTCG. Whereas, if he would have held the shares in the SPV itself, at the time of exit he would have enjoyed preferential tax treatment if such SPV is listed. This denies the pass thru benefit to the sponsor which is the key factor in REITs tax regime. Therefore, an amendment is being made to give such preferential tax treatment to the sponsors while offloading (selling) the units of the REITs which were obtained by way of exchange.
The rental incomes received by the SPVs (predominant income in case of REITs) and then distributing them to the REITs as dividends or interest are exempt from tax due to DDT or specific exemption under the REIT tax regime. But if such incomes are directly earned by the REITs without the SPVs, they are subject to tax at REIT level. In order to provide similar benefits to REITs on the rental income directly received by it by holding the real estates in India, it has been amended that any rental or lease income received by REITs will be tax exempt in its hands. If such rental incomes are distributed to the unit holders (UHs) then it will be income of such UHs and will be liable to tax. The REITs shall withhold tax at the rate of 10% in case of resident UHs and at rates in force for non-resident UHs. No WHT under section 194-I shall be made by the rental income payer if it is for REITs holding assets directly.
Relief from Minimum Alternate Tax (MAT) for FIIs on exempt capital gains
The FIIs invest in securities which are listed in stock exchanges and may decide to transfer those securities on the floor of the stock exchange. This will be either liable to 15% tax in case of STCG or Nil tax in case of LTCG due to preferential tax treatments. However, the revenue was subjecting such FIIs to MAT as the gains made by them will be added to their book profits and therefore, were asked to pay MAT. The cornerstone benefit of tax exemption to FIIs was denied due to MAT levy. Therefore, in order to alleviate this problem as amendment has been made to section 115JB which deals with MAT that the capital gains earned by FIIs under preferential treatment like exempt LTCG shall not be included in the book profits and corresponding expenses in relation to such income shall not be debited from the profit and loss account. By this the FIIs will not be required to pay MAT on the exempt capital gains.
Foreign Tax Credit (FTC) Rules soon
Section 91 of the Act deals with relief from double taxation while dealing with countries with which India does not have DTAAs. Indian multinational companies (MNCs) have operations in foreign jurisdictions. They sometimes operate through branches or other types of PEs. They generate income and also pay income tax in such countries. The branches may also incur losses. Also, there may be several branches in different countries with different tax rates. There are no clear rules as to how the FTCs can be offset against Indian tax liabilities as Indian companies are liable to worldwide income taxation. Whether taxes paid in high tax jurisdiction should be offset first or vice versa or whether there can be carry forward of FTCs or whether there can be refund of excess FTCs lying in the books as is possible in the US are all issues unresolved.
In order to streamline this key outbound investment tax issue, the Government has stated that the Central Board of Direct Taxes (CBDT) will come up with clear rules to avoid these confusions. These rules are furthermore important if at all the Government introduces Controlled Foreign Corporation (CFC) Rules which is one of the regimes anticipated in the DTC.
Deferment of GAAR
As expected the Government has deferred GAAR by another two years i.e. up to FY 2017-18 which should have come into force from this April unless deferred. Unless the revenue is adequately equipped or educated, GAAR could kill many businesses in India and would allay the foreign investors which the Government is appeasing by all means. This is a welcome and indispensable move. It is also expected that GAAR may have its natural death in the years to come as this is the third time it is being deferred.
Extension of lower WHT on interest income to FIIs and QFIs
Under section 194LD as introduced in the Finance Act, 2013 any Indian company or the Government borrows money against a rupee denominated bond, then the interest payments made to such lenders who should be FIIs and Qualified Foreign Investors (QFIs) will be liable to a lower WHT of 5%. This benefit was only for a period of two years which lapses this May 31, 2015. The Government has now extended this benefit up to June 31, 2017. This is similar to the benefits extended in July 2014 Union Budget for External Commercial Borrowings (ECB) under section 194LC.
CORPORATE TAXATION AND MERGERS AND ACQUISITIONS
Reduction of base corporate income tax (CIT) from 30% to 25%
Commencing from FY 2016-17, the CIT will be reduced from current 30% to 25% for a period up to 4 years i.e. FY 2019-20. This is in line with DTC which was meant for increasing in tax base and reducing the tax rates. As explained by the Fin Min in his speech that India is seen as a high tax jurisdiction with almost 34% tax including all surcharge and cesses. But still after all the deductions and exemptions, the effective taxes paid by the companies are around 23%. Therefore, in order to reduce the CIT rate and also to reduce various deductions and exemptions, the Government has reduced CIT to 25% from next year onwards. While this is a good move, this rate along with other deductions and exemptions is very close by to trigger MAT which means that companies cannot reduce its taxes beyond a point with lesser CIT and also the tax deductions.
100% depreciation even for assets put to use for less than 180 days for manufacturing and power sectors
In order to incentivize power and manufacturing sectors from investing in new plants and machineries, the restriction under section proviso to section 32(1) of the Act that to avail 100% depreciation benefit for new plants and machineries procured that they should be put to use more than 180 days has been amended such that even if they are not put to use more than 180 days, still 100% depreciation will be available on such assets.
Increase in threshold of domestic transfer pricing limit
In order not to trouble small businesses on compliances costs, the threshold to trigger domestic transfer pricing has been increased from the current INR 50 million to INR 200 million.
Companies being members of Association of Persons (AOP) are exempt from MAT
As per section 86 of the Act, the distribution made by the AOP to its members is exempt from tax as the AOP is liable to tax on such income. This is similar to the share in profits by partners from a partnership firm which is exempt under section 10(2A). But in case if a company is a member of AOP then even though the income is exempt from tax under section 86, such companies were required to pay MAT on such income as such income is includible in the computation of book profits as per section 115JB. In order to avoid this double tax, amendment has been made that income received by companies under section 86 will not be includible within the meaning of book profits for the purpose of MAT under section 115JB.
Special corporate tax deductions for investors in the States of Andhra Pradesh (AP) and Telengana (TG)
Any new investors in India may consider the notified backward areas in the States of AP and TG as two CIT benefits have been proposed in this Budget such as additional investment deduction to the extent of 15% of cost of specified new asset acquired by the undertaking or the enterprise investing and additional depreciation of 35% will be available against investment in new plants and machineries. There is no sunset clause for these two benefits.
Taxation of Mergers & Acquisitions
Tax neutrality on merger of Mutual Fund schemes
In order to promote the idea of the SEBI which encourages consolidation of schemes of Mutual Funds (MF) and in order not to make such consolidation or merger a tax burden in the hands of the unit holders of MFs, amendment has been made to sections 47 (tax free transfers) and 49 (mode of computation of capital gains) that in case of merger of schemes by a MF there shall not be any tax in the hands of the unit holders on transfer of underlying schemes held by them and what consolidated scheme that they get in return. Also, the cost of acquisition and the holding period shall be the same as before the consolidation upon the new schemes granted by the MFs to the unit holders.
Cost of Acquisition (CoA) in the hands of the resulting company is the same as CoA of the demerged company
Section 49 deals with CoA which is the reduction against the computation of capital gains on transfer of capital asset. Section 49(1) includes various transfers where the CoA of the previous owner will be passed to the transferee. However, demerger has been left out in this subsection. In case of tax free transfers like demerger which is covered under section 47 of the Act, the CoA of the previous owner of the transferred assets i.e. the demerged company in this case shall be passed on to the transferee i.e. the resulting company. This is just a tax deferral and wider capital gains will be recaptured at the time of sale of such assets by the transferee in a subsequent taxable transfer. Amendment has been made to this effect to section 49(1)(iii) of the Act by including sub-clause (e).
Waiver of TAN requirement by tax deductors
Section 203A of the Act requires persons to obtain Tax Deduction and Collection Account Number (TAN) whenever they are required to withhold tax on any payments made to other persons. In case of one-time transactions like purchase of immovable properties, etc. the purchaser individual may not have a TAN. In such cases he could quote his Permanent Account Number (PAN). This facility was available only in case of resident transferor (resident owner of immovable property). Now this benefit has been extended even to non-resident transferors of immovable properties where the resident transferee can mention only his PAN and need not obtain a TAN only for this purpose. This reduces compliance burden to individuals.
Period of stay determination in case of ship crew members in a foreign bound ship
There has been confusion or adversarial tax treatment in case of residential status calculation for crew members who are in a foreign bound ship. As the ship though starts from an Indian port may go to another Indian port and then may ultimately leave the borders of India. The immigration law treats that once the ship leaves the first port the Indian citizen crew members have to fulfil immigration law requirements as they are treated as traveling abroad. But the revenue does not give this beneficial treatment and continues to treat them as staying in India even though immigration law treats them as persons leaving India. Now CBDT will look into this and may come with a favourable regime to such crew members.
Reassessment notice approval by Assessing Officer simplified
In order to simply the approval that is required to be obtained by the Assessing Officer (AO) before issuing reassessment notice from various authorities under various circumstances failing which or obtaining wrong approval could render the notice itself as invalid as per law, the approval has now be simplified that for reassessment upto four years the Joint Commissioner is to approve and for reassessments beyond four years the approval from Chief Commissioner or Commissioner or Principal Commissioner may be obtained.
Revisional powers under section 263
In order to widen the scope for Commissioners to invoke revision powers under section 263 in situations where the order passed by the AO is prejudicial and erroneous to the interest of the revenue, additional reasons to invoke revisionary powers have been mentioned such as orders passed without proper inquiry, allowing claim of taxpayer without inquiry, order passed without following of CBDT or jurisdictional High Court and Supreme Court.
Raising the pecuniary limit of single member of ITAT
Section 255(3) of the Act authorizes the President of the ITAT to constitute a single member Bench of an ITAT to dispose of cases of a taxpayer whose income is not more than INR 500,000 for any given FY. This is to avoid having a Bench of two members for matters involving insignificant total income. In order to raise this pecuniary limit, amendment has been made to this section to increase the monetary limit from INR 500,000 to INR 1.5 million. This will help quick disposal of small pending matters at various ITATs.
Penalty on tax sought to be evaded even under section 115JB and 115JC
Certain ITATs have held that penalty for concealment of income under section 271(1)(c) of the Act is applicable only in case of computation of income under regular provisions of the Act and not in a case where both regular provisions and the MAT provisions (sections 115JB and 115JC) are applicable. In order to eliminate this problem, amendment has been made to section 271(1)(c) that in case of any tax evaded which is computed under regular provisions and section 115JB will also be liable to concealment penalty.
PERSONAL INCOME TAXATION
Basic exemption limits for Individuals
There is no change in the basic exemption limit for individuals as the Fin Min admitted that he had already provided more than what he can in the July 2014 Budget last year. However, investment related benefits in case of health insurance and employee provident fund contributions have been made.
Abolition of Wealth Tax
The Fin Min admitted today that the average wealth tax collected in a year was around INR 8 billion which is less than the administrative costs to collect such taxes. This is similar in lines with the Estate Duty taxes and the Gift taxes where the admin costs were more than the tax collected and also involved significant compliance by the taxpayers leading to distortions. Therefore, Wealth Tax which was in existence since 1957 is being abolished. In order to achieve the goal of what wealth tax was doing, the high net-worth individuals whose income is more than INR 10 million a year will have to pay an additional surcharge of 2% over and above the current 10%. Currently, the total tax paid by such HNIs is 33.99% (30% of base tax + 10% on 30% (i.e. 3%) of surcharge + 3% of cess on 33%). Now they have pay 34.60% (30% of base rate + 12% on 30% (i.e. 3.6%) of surcharge + 3% of cess on 33.6%).
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.