India: The Finance Act, 2017 - Implications & Constitutionality?

1. INTRODUCTION

India's finance bill for the financial year 2016-2017 (the "Bill") was presented by the Finance Minister on February 1, 2017 and approved by the Lok Sabha with certain modifications on March 22, 2017. The Lok Sabha voted the Bill to be a money bill

Finance bills are legislative proposals presented in the Lok Sabha (India's lower house) before the beginning of every financial year and after the budget announcement for the next financial year. Finance bills essentially propose all the amendments to be made to various acts (such as the Income Tax Act 1961) to implement the budget in the coming financial year.

Generally, bills that exclusively contain provisions for the imposition and abolition of taxes and the appropriation of moneys out of the Consolidated Fund are certified as money bills.1 The significance of a money bill is that it only needs to be put to vote in the Lok Sabha and the Rajya Sabha (India's upper house) can only suggest certain amendments to a money bill. The amendments are then presented before the Lok Sabha, which can either accept or reject them.

On March 30, 2017, the Lok Sabha rejected all the amendments proposed by the Rajya Sabha to the Bill and the same was sent to the President of India for his assent. The Finance Act, 2017 (the "Act") came into effect from April 1, 2017 after the President granted assent to the Bill on March 31, 2017.

In this article, we highlight the key changes introduced under the Act and its implications and analyze the legality of such changes.

2. KEY AMENDMENTS UNDER THE ACT

Broadly, the Act brings into force the mandatory requirement for unique identification Aadhaar registration, prohibits cash payments above a certain payment, merges quasi judicial tribunals, restructures the appointment of members to certain judicial tribunals and amends the rules on the funding of political parties.

2.1 Mandatory requirement for Aadhaar

With effect from July 1, 2017, every person must provide a unique identification Aadhaar number ("Aadhaar Number") at the time of:

  1. applying for a Permanent Account Number ("PAN"); or
  2. filing of income tax returns.

In case a person has not obtained an Aadhaar Number, that person will be required to indicate that an application has been filed for procuring an Aadhaar Number and that person shall quote the Aadhaar enrolment number procured at the filing of the application for a PAN and filing of the income tax return.

The significance of this amendment is considerable. It will essentially mean that every tax paying resident in India (including foreign nationals) will have to register for an Aadhaar Number, submitting biometric data to the authorities in the process.

The key rationale for this mandatory requirement is to link the Aadhaar Number to individual PANs, preventing people from having multiple PANs and essentially rooting out tax evasion. The Government argues that this will create a watertight system for regulating the entire taxation system, making it easier to identify tax leakages or undocumented cash in India.

2.2 Mandatory declaration of Aadhaar Number

With effect from July 1, 2017, every person holding a PAN and who is eligible to hold an Aadhaar Number is mandatorily required to provide the authorities with his or her Aadhaar Number, by a date and in a manner as may be prescribed by the Government, who may in its sole discretion exempt classes of persons from this requirement through a notification. Additionally, in case a person fails to provide his or her Aadhaar Number, the PAN of such a person will be deemed invalid.

In furtherance of the Government's objective to address tax leakages and tax evasion in India, it is intended that every person shall hold an Aadhaar Number. This will theoretically bring all persons eligible to pay tax under the scanner of the Government or its agencies. Critics point out that biometric data collected by the Government, mandatorily required when applying for an Aadhaar Number runs the risk of being potentially misused or disclosed to unauthorized recipients.

2.3 Restructuring of certain tribunals

Pursuant to the Act, certain existing tribunals are to be restructured and merged. In particular:

  • the Competition Appellate Tribunal will be merged with the National Company Law Appellate Tribunal;
  • the Airports Economic Regulatory Authority Appellate Tribunal and the Cyber Appellate Tribunal will be merged with the Telecom Dispute Settlement and Appellate Tribunal;
  • the National Highways Tribunal will be merged with the Airport Appellate Tribunal;
  • the Employees Provident Fund Appellate Tribunal will be merged with the Industrial Tribunal;
  • the Copyright Board will be merged with the Intellectual Property Appellate Board;
  • the Railways Rates Tribunal will be merged with the Railways Claims Tribunal; and
  • the Appellate Tribunal for Foreign Exchange will be merged with Appellate Tribunal (constituted under relevant foreign exchange manipulation legislation).

While several of these mergers appear to have merit on grounds of functional similarity, there are a few mergers, which might raise eyebrows. It's not immediately apparent, for example, why the Airports Economic Regulatory Authority Appellate Tribunal is to be merged with the Cyber Appellate Tribunal and the Telecom Dispute Settlement and Appellate Tribunal? Questions have also been raised on the constitutionality of merging these tribunals through a money bill.

2.4 Terms of service on various tribunals

Generally, service conditions of chairperson and members of various quasi-judicial tribunals were prescribed under relevant legislation establishing such tribunals. The Act however, controversially amends such legislation, granting the power to the Government to make rules with respect to: (i) qualifications; (ii) appointments; (iii) term of office; (iv) salaries and allowances; (v) resignation; (vi) removal; and (vii) other conditions of service for members of such tribunals.

These rules will be applicable to members of such tribunals, including chairpersons, vice-chairpersons and members, among others, of specified tribunals, appellate tribunals, and other authorities.

Pursuant to these amendments the term of office for these persons shall not exceed 5 (five) years and such members shall be eligible for reappointment. The age of retirement has also been amended to: (i) 70 (seventy) years for chairpersons, chairmen or presidents; and (ii) 67 (sixty-seven) years for vice-chairpersons, vice-chairman, vice-presidents and presiding officers.

Critics of these changes suggest that it gives unchecked power to the Government, entitling them to essentially install political appointees to govern such tribunals, arguably eroding the principle of the separation of powers between the executive, legislative and judiciary. This amendment could therefore, potentially compromise the independence of such quasi-judicial tribunals.

In this context, it should be noted that the Supreme Court of India ruled in 2014 that appellate tribunals have similar powers and functions to the High Courts in India, which include the power to appoint judges and determine the terms and conditions for such appointments, confirming the general principle of non-intervention by the executive.2

2.5 Donations made by companies to political parties

Earlier, the Companies Act, 2013 provided for a cap on the contributions made by companies to various political parties to the extent of 7.5% (seven point five percent) of the net profit of the last 3 (three) financial years.3 Further, a company making such contribution was required to disclose the contribution made along with the details of the political party to whom such contribution has been made.4

The Act, controversially, amends the Companies Act, 2013 to remove this cap of 7.5% (seven point five percent) and the requirement of disclosing such contributions made to political parties.

The amendment is motivated by the Government's objective to carry out political finance reform, but the implications are significant: firstly, it entitles a company to make uncapped contributions to political parties (potentially leading to multiple political pressures to donate); and secondly, since companies making contributions are no longer required to disclose such contributions, the amendment, if anything, makes political financing less transparent. The amendment could lead to the creation of shell companies to channel undocumented money into the political and electoral process in India.

2.6 Cap on cash transactions

The Act introduces a cap on cash transactions above INR 2,00,000 (Indian Rupees two lakhs) (just over USD 3,000):

  1. in aggregate from a person in a day; or
  2. in respect of a single transaction; or
  3. in respect of transactions relating to one event or occasion from a person,

Transactions exceeding these thresholds will only be permitted through an account payee cheque or an account payee bank draft or an electronic clearing system through a bank account.

After the Government's demonetization drive in November 2016, this amendment is intended to curb large cash transactions from seeping back into the system and specifically curb large unaccounted cash transactions injected into real estate and gold bullion. Further, this amendment should theoretically reduce cash flow in the market, thereby, bringing more transactions within the banking system and traceable by the tax authorities in India.

We would query how successful the new restriction might be in preventing cash from seeping back into the black economy? How will it be monitored or policed, if the recipient of the cash does not necessarily have to deposit the proceeds into a bank account? Perhaps a more effective way of preventing cash from seeping back into the black economy post demonetization, would have been to limit cash withdrawals from the banking system, forcing the uptake of internet-banking and other electronic methods of payment, leaving electronic signatures to the movement of large sums of cash.

2.7 Power to carry out search and seizures

The Act also controversially introduces sweeping powers to the authorities to conduct tax investigations. Earlier, the Income Tax Act, 1961 empowered the relevant authorities to enter and search any building, search any person or seize any documents if they had reason to believe that any person failed to produce certain documents or if any person was in possession of any money, bullion, jewelry or other valuable article and had failed to disclose such possession, or for any other reason provided under the Income Tax Act, 1961.

The Act now empowers relevant authorities under the Income Tax Act, 1961 to carry out a search or seizure without having to declare reason to believe to such person or any authority or appellate tribunal, previously required under Section 132 of the Income Tax Act, 1961.

Critics point out that this is a draconian amendment, raising fears that the relevant authorities may exercise unchecked and arbitrary power to conduct investigations, leading to the risk of harassment and potential tax terrorism.

2.8 Power to impose penalty

The Act also clarifies the power to impose a penalty. Earlier, the Securities Contracts (Regulation) Act, 1956 and the Depositories Act, 1996 were amended in 2004 to empower the adjudicating officer to impose penalties on offenders for various offences, including their failure to furnish information, documents or returns. The Act reinforces this power, clarifying that the adjudicating officer will always be deemed to have this power.

3. CONCLUSIONS

The amendments under the Act have received a mixed response by the business, political and academic communities.

On the one hand, critics point out that privacy is being further eroded by mandatorily requiring individuals to register for an Aadhaar Number. Many have questioned the integrity of the mechanism designed to keep individual data private, and to what extent the authorities should be able to monitor cash transactions by individuals.

On the other hand, development demands the expansion of the tax net. Currently just 3 (three) per cent of India's population is estimated to file a tax return, which is woefully inadequate for the fiscal needs of a rapidly developing economy.

From a public policy perspective, Aadhaar has a much greater penetrability amongst the masses when compared to PAN and making Aadhaar a mandatory requirement for tax filings should help track tax defaulters. 

In this context, it should be noted that two petitions have been filed with the Supreme Court of India for the determination of the legality of the mandatory requirement of Aadhaar Number for tax filings, under Section 139 AA of the Income Tax Act, 1961. This amendment has been questioned in light of a previous order given by the Supreme Court that the requirement of an Aadhaar Number shall be optional.5 The matter is currently pending with the Supreme Court of India.

Of critical importance, however, are the implications of the changes on the appointment of tribunals and the potential politicization of such future appointments. Increasing the role of the Government in such matters runs the risk of eroding the boundaries between the executive and the judiciary in particular.

Unencumbered and wide ranging powers given to tax officers and authorities under the Act could lead to the misuse of power, political witch hunts and the charges of tax terrorism, severely eroding confidence in institutional process.

Finally, introducing amendments merging and appointing tribunal members in the form of a money bill has raised eyebrows as to whether it was constitutional? Money bills are normally confined to the imposition and abolition of taxes and the use of moneys in the Consolidated Fund and Article 110 of the Constitution of India states that a money bill is a bill, which introduces the following:

  1. the imposition, abolition, remission, alteration or regulation of any tax;
  2. the regulation of the borrowing of money or the giving of any guarantee by the Government of India, or the amendment of the law with respect to any financial obligations undertaken or to be undertaken by the Government of India;
  3. the custody of the Consolidated Fund or the Contingency Fund of India, the payment of moneys into or the withdrawal of moneys from any such fund;
  4. the appropriation of moneys out of the Consolidated Fund of India;
  5. the declaring of any expenditure to be expenditure charged on the Consolidated Fund of India or the increasing of the amount of any such expenditure;
  6. the receipt of money on account of the Consolidated Fund of India or the public account of India or the custody or issue of such money or the audit of the accounts of the Union or of a State; or
  7. any matter incidental to any of the matters specified in sub-clauses (a) to (f).

While the term "incidental" in Article 110(1)(g) of the Constitution can be interpreted widely, can the merging of tribunals and changing the appointment of tribunal members be legitimately included in the foregoing provisions?

It could equally be argued that since government expenditure comes out of the Consolidated Fund, the merging of tribunals and the terms and conditions of appointments might therefore be legitimately amended through a money bill.

Either way, it is somewhat surprising that the Bill was not challenged on this point, and given that the Act is now in force, it remains to be seen whether any future constitutional challenge will arise.

Footnotes

1.http://www.parliamentofindia.nic.in/ls/intro/p24.htm

2.Madras Bar Association vs. Union of India (Transfer Case No. 150 of 2006). Supreme Court of India, September 25, 2014 (paragraph 89)

3. Section 182(2) of the Companies Act, 2013

4. Section 182(6) of the Companies Act, 2013

5. K.S. Puttaswamy (Retd.) and Ors. vs Union of India (UOI) and Ors. AIR2015SC3081

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