Direct Tax

1. India-USA sign historic, reciprocal Foreign Account Tax Compliance Act, ("FATCA") agreement to fight black money menace

Recently, India–USA has signed FATCA Agreement containing the ten Articles which will help to detect and discourage offshore tax evasion and to fight the menace of black money. This Inter Governmental Agreement ("IGA") shall enter into force on the date of India's written notification to the US that India has completed its necessary internal procedures for entry into force of the Agreement. The following are key points of FATCA Agreement:

  • Article 2 provides for obligations to obtain and exchange information with respect to Reportable Accounts. In India's case, information with respect to each US Reportable Account (accounts of US Citizen and residents) of each Reporting Indian Financial Institution may be obtained and exchanged. Similarly, in case of US, information with respect to each Indian Reportable Account (Indian residents) of each Reporting US Financial Institution may be obtained and exchanged;
  • Information with respect to 2014 and all subsequent years may be obtained and exchanged under IGA;
  • Article 6 provides for mutual commitment to enhance the effectiveness of information exchange and transparency;
  • This automatic exchange of information to begin from September 30, 2015.

2. Central Board of Direct Taxes ("CBDT") says no capital gains on roll-over of Fixed Maturity Plan ("FMP") Mutual Fund units
CBDT Circular has clarified that capital gains will not be applicable to investor at the time of exercising option to roll-over units of Mutual Fund under FMP in accordance with SEBI guidelines.

It was mentioned that roll-over does not result in 'transfer' since scheme remains the same and the gains will arise at the time of redemption or opting out of the scheme. Further, a clarification is issued in view of amendment made by Finance Act, 2014, increasing holding period for classifying asset as 'long term' from 12 to 36 months. CBDT notes that FMPs are closed ended funds with fixed maturity date and option allowed by mutual funds to roll-over beyond 36 months to allow qualification of FMPs as a long term capital asset, in accordance with SEBI regulations.

3. Government notifies September 30 deadline for one–time compliance window under Black Money law
Recently, the Government has enacted Black Money (Undisclosed Foreign Income and Assets) and Imposition of Tax Act, 2015 (hereinafter referred to as "Black Money Law") which has shall come into force from April 01, 2016 and provides for a one-time compliance opportunity for a limited period to residents who have any undisclosed foreign assets which have hitherto not been disclosed for the purposes of Income-tax. In this regard, the Government has also notified Rules for Black Money Law and issued a circular explaining substance of provisions of compliance window under the new law. The key provisions relating to one-time compliance opportunity are prescribed as under:

  • Declaration in respect of an Undisclosed Asset outside India, to be made on or before September 30, 2015;
  • Tax at the rate of 30 percent and an equal amount by way of penalty in respect of the undisclosed assets declared, to be paid by December 31, 2015;
  • Such persons making disclosure in respect of an Undisclosed Asset outside India will not be prosecuted under the stringent provisions of the Black Money Law;
  • After the compliance window is over, any undisclosed income or asset discovered by the Tax officer would be subjected to tax @ 30%, penalty @ 300% of the tax payable and the resident may also be liable to prosecution proceedings.

4. India signs Multilateral Convention on Automatic Information Exchange
India has signed Multilateral Competent Authority Agreement on Automatic Exchange of Financial Account Information ("AEOI"). This Agreement has also been signed by other countries including Australia, Canada, Costa Rica, Indonesia and New Zealand, taking total number of countries on board to 60. Upon full implementation of the Agreement, AEOI will enable India to receive information from almost all signatory countries including offshore financial centres and information about assets of Indians held outside India.

5. India-Denmark Tax Treaty amended; banking secrecy can't restrict information exchange
India-Denmark Double Taxation Avoidance Agreement has been amended to expand the scope of Exchange of Information ("EOI"). Newly inserted Clause 4 under Article 26 debars Contracting States from declining to supply information requested solely on the ground of 'no domestic interest' in such information. Also, the amendment makes it obligatory for the Contracting States to provide information requested by other States even when the other state may not need the information for its own tax purpose.

Newly inserted Clause 5 further prohibits Contracting States from denying information solely "because the information is held by a bank, other financial institution, nominee or person acting in an agency or a fiduciary capacity or because it relates to ownership interests in a person."

This amendment has been brought into effect from February, 2015.

International Trade and WTO

1. Key takeaways from Foreign Trade Policy ("FTP") 2015-2020 - issued by Ministry of Commerce & Industry on April 01, 2015

FTP 2015-2020 focuses on promotion of manufacture and service exports and employment generation, in line with Central Government's "Make in India", "Digital India" and "Skills India" initiatives / campaigns. The key takeaways of FTP 2015-2020 are as follows:

  • Merges 5 schemes, viz. Focus Product Scheme, Market Linked Focus Product Scheme, Focus Market Scheme, Agri. Infrastructure Incentive Scrip, Vishesh Krishi Gram Udyog Yojana into a single, transferable, 'Merchandise Export from India Scheme' ("MEIS");
  • Rewards for export of notified goods to notified markets (categories A, B & C countries) under MEIS payable at 2% to 5% of realised Free on Board value (in free foreign exchange);
  • 'Service Exports from India Scheme' ("SEIS") replaces 'Served From India Scheme' ("SFIS"), applies to all "service providers in India" instead of "Indian service providers" of notified services, regardless of constitution / profile of service provider;
  • Duty credit scrip under said scheme no longer with actual user condition or restricted to usage for specified types of goods but be freely transferable and usable for all types of goods and service tax debits on procurement of services / goods;
  • Grants reward rates of 3% and 5% based on net foreign exchange earned and debits would be eligible for CENVAT credit or drawback;
  • Both MEIS & SEIS incentives under Chapter 3 shall be available to Special Economic Zones ("SEZ") units;
  • Business leaders who have excelled in international trade and have successfully contributed to country's foreign trade to be recognized as "Status Holders" and be given special treatment and privileges to facilitate their trade transactions, in order to reduce their transaction costs and time;
  • Criteria of export performance for recognition as "Status Holder" changed from Rupees to US dollar earnings;
  • Where capital goods are sourced indigenously under Export Promotional Capital Goods ("EPCG") Scheme, Export Obligation could be reduced by 25% than normal obligation (6 times the duty saved amount) in order to promote domestic capital goods manufacturing industry;
  • Export items with high domestic content and value addition to be given higher level of rewards vis-à-vis products with high import content and less value addition;
  • Inter-ministerial consultations for approval of export of Special Chemicals, Organisms, Materials, Equipment and Technologies ("SCOMET") items, Norms fixation, Import Authorisations, Export Authorisation, to be made online in a phased manner, with the objective to reduce time for approval, hence exporters are no longer required to submit hard copies;
  • Simplifies procedures / processes, focussing on digitisation and e-governance, inter alia introduces online filing of application for Terminal excise duty refund under new Aayat Niryat Form;
  • Provides various initiatives for Export Oriented Units ("EOU"), Software Technology Parks ("STP"), Electronic Hardware Technology Parks ("EHTP"), such as (i) allows sharing of infrastructural facilities among themselves, (ii) allows inter-unit transfer of goods and services, (iii) units can set up warehouses near port of export, (iv) they can use duty free equipment / goods for training purposes, (v) EOUs can supply spares / components up to 2% of value of manufactured articles to buyer in domestic market towards after sales services, (vi) 5 years period to achieve positive Net Foreign Exchange extendable by 1 year in case of adverse market condition / genuine hardship, (vii) Letter of Permission ("LoP") to have initial validity of 2 years (extendable by 1 year) to enable construction of plant and installation of machinery;
  • To encourage domestic manufacturing of capital goods, import under EPCG / Authorisation Schemes shall not be eligible for exemption from payment of anti-dumping duty, safeguard duty and transitional product specific safeguard duty;
  • Commerce exports of handloom products, books/periodicals, leather footwear, toys and customized fashion garments through courier or foreign post office would also be able to get benefit of MEIS (for values up to INR 25,000);
  • Incorporates new Chapter on Quality complaints and Trade Disputes in an endeavour to resolve quality complaints and trade disputes between exporters and importers.

2. Finance Ministry facilitates export of notified e-commerce goods under MEIS through air couriers

The Finance Ministry amends Courier Imports and Exports (Clearance) Regulations, 1998 to extend the applicability to goods sought to be exported through e-commerce platform under MEIS from Chennai, Delhi and Mumbai airports, in consignments up to INR 25,000 involving transaction in foreign exchange.

For such exports, authorised courier shall make entry in the form prescribed in Shipping Bill and Bill of Export (Form) Regulations, 1991.

Goods for export as per this Shipping Bill include only bonafide commercial samples and prototypes of goods of a value not exceeding INR 50,000 per consignment and bonafide gifts of articles for personal use of a value not exceeding INR 25,000 per consignment and which are for the time being not subject to any prohibition or restriction on their export from India and on export of which no transfer of foreign exchange is involved.

3. Extension of Anti-Dumping Duty ("ADD") on Nylon Tyre Cord

ADD has been imposed on imports of Nylon Tyre Cord Fabric ("NTCF") originating in or exported from the People's Republic of China and imported into India. The ADD has been extended for a period of five years.

4. Zero Duty on Anti-Retroviral Drugs ("ARV Drugs") and Diagnostic Equipment

There will be zero duty on ARV Drugs and Diagnostic Equipment when imported into India subject to the condition that the importer produces the said goods. The duty will remain in force up to April 01, 2016.

5. Extension of ADD on Poly Vinyl Chloride ("PVC") Paste Resin

ADD has been imposed on PVC Paste Resin originating in, or exported from, the European Union and imported into India. The ADD has been extended to remain in force up to June 24, 2016.

ADD has been imposed on PVC Paste Resin, originating in, or exported from, Korea RP, Taiwan, and People's Republic of China, Malaysia, Thailand and Russia and imported into India. The ADD has been extended for a further period of one year and shall remain in force up to July 25, 2016.

6. Extension of ADD on Acrylic Fibre

ADD has been imposed on imports of Acrylic Fibre, originating in or exported from Korea RP and Thailand and imported into India. The ADD has been extended for a period of five years.

TAX CASES

Income Tax
DDIT vs. Serum Institute of India Limited (Pune Tribunal)
Section 206AA is not a charging section and can't override beneficial DTAA rates

Serum Institute of India Limited ("the assessee") is engaged in the business of manufacture and sale of vaccines. The assessee made some payments to the non - residents on account of business, royalty, and fee for technical services. The payments so made were subject to tax under section 195 Income Tax Act, 1961 ("IT Act"). The assessee thus deducted tax deducted at source ("TDS") on such payments applying the rates provided under Double Taxation Avoidance Agreement ("DTAA") with respective countries. The tax rate provided in the DTAA was lower than the rate prescribed under the IT Act and therefore in terms of provisions of section 90(2), TDS was deducted by assessee applying the lower (beneficial) rate prescribed under the DTAA.

The Revenue noted that the recipients of royalty and technical services payments had not obtained Permanent Account Number (PAN). The Revenue therefore invoked provisions of section 206AA and held that TDS @ 20% should have been applied on such payments. The Revenue treated such payments as cases of "short deduction" (being difference between 20% and the actual tax rate on which the tax was deducted) in terms of section 206AA of the IT Act.

Aggrieved the assessee carried appeal before Commissioner of Income Tax (Appeals) ("CIT (A)"). CIT (A) ruled in favour of the assessee and held that where the DTAAs provide for a tax rate lower than that prescribed in 206AA of the IT Act, the provisions of the DTAAs shall prevail and the provisions of section 206AA of the IT Act would not be applicable. Thus, CIT (A) deleted the tax demand raised by the Revenue relatable to the difference between 20% and the actual tax rate provided by the DTAA.

Aggrieved by the CIT (A)'s Order, the Revenue filed an appeal before Income-Tax-Appellate-Tribunal ("ITAT") Pune.

Before ITAT, the Revenue contended that in absence of furnishing of PAN, assessee was under obligation to deduct tax @ 20% following the provisions of section 206AA of the IT Act and thus the beneficial provisions under DTAA won't be applicable. However, assessee on the contrary contended that Section 206AA of the IT Act would not override the provisions contained in section 90(2) of the IT Act.

ITAT after analyzing the facts of the case observed that in case of non – resident's tax liability in India was liable to be determined in accordance with the provisions of the IT Act or the DTAA whichever was more beneficial.

Further, ITAT held that provisions of Chapter XVII-B governing TDS were subordinate to section 90(2) of the IT Act and also section 90(2) of the IT Act override provisions of section 4 and 5 of the IT Act.

ITAT ruled in favour of the assessee and held that the provisions of section 206AA of the IT Act cannot be invoked by the Assessing Officer to insist on the tax deduction @ 20%, having regard to the overriding nature of the provisions of section 90(2) of the IT Act. Accordingly, ITAT held that the assessee rightly deducted tax at a lower rate than prescribed under section 206AA i.e. 20% on the strength of the beneficial provisions of DTAA and thereby upheld CIT (A)'s order.

DIT vs Lufthansa Cargo India (Delhi High Court)
Aircraft maintenance and repair related services are Fee for technical services ("FTS").
However, these payments were made to earn income from source outside India and therefore, not deemed to accrue or arise in India

Lufthansa Cargo India ("the assessee") is engaged in the business of wet leasing of aircrafts to foreign companies. The assessee wet leased four aircrafts to a foreign company, Lufthansa Cargo AG, Germany ("LCAG"). Wet leasing is defined as leasing an aircraft along with the crew in flying condition to a charterer for a specified period wherein the lessor has the responsibility of maintaining the crew and the aircraft in airworthy condition and the lessee is free to direct the flight operations by naming designations in advance. Accordingly, the assessee was obliged to maintain the aircraft in flying condition, in accordance with Directorate General of Civil Aviation ("DGCA") guidelines to possess a valid airworthiness certificate. Thus, it entered into overhaul agreement ("the Technick agreement") with a German Company i.e. Lufthansa Technik's ("Technik") workshops in Germany (as there was no overhaul repair facilities in India) to undergo periodic overhaul repairs and made payments for same. Such overhaul repairs were permissible only in workshops authorized for the purpose by the manufacturer as well as duly approved by DGCA Technik under agreement carried out the maintenance repairs without providing technical assistance by way of advisory or managerial services. The repairs by way of component overhaul in the Technik workshops in Germany and other foreign workshops were in the nature of the routine maintenance repairs and thus no Technik's personnel were ever deputed to India for rendering any technical or advisory services to the assessee.

During assessment proceedings before the Tax officer, the assessee submitted that the Technick carried out normal maintenance repairs, including supply of spares, and therefore had Technick been a domestic company the payments to it would not have been covered under section 194J which covers fees for technical services ("FTS"). The assessee thus argued that the technical repair work carried out be Technick was not in the nature of technical assistance or technical services. The assessee argued that the components were sent to authorized workshops for carrying out overhauling of components and not for seeking any technical or advisory services and thus the repairs did not constitute "managerial" or "technical " or consultancy services " as defined under section 9(1)(vii)(b) of the IT Act to attract TDS under section 194J of the IT Act. Further, the assessee also referred the exclusionary clause of section 9(1)(vii)(b) of the IT Act which provides that FTS would not be taxable in India where said services are utilized for earning income from any source outside India. The assessee argued that the payment for repairs were incurred for earning income from sources outside India and thus even if the payments were considered to be FTS, the same won't be taxable as the case would fall within the exclusionary clause of section 9(1)(vii)(b) of the IT Act.

The Assessing officer rejected assessee's alternative arguments and thus passed the orders for non – deduction of TDS under section 194J of the IT Act and levied tax as well as interest under section 201 (1A) of the IT Act.

On appeal CIT (A) upheld the departments' order. Further, ITAT after careful analysis of various terms of the agreement between the assessee and Technik held that the amount received was a routine business receipt and not technical fee. Aggrieved, the Revenue then filed an appeal before Delhi High Court ("HC").

The Hon'ble Delhi HC ruled on the following two issues:

i) Whether the services offered by Technik falls under "Technical service" and thus TDS section 194J attracted?

  • The HC held that unlike normal machinery repair, aircraft maintenance and repairs inherently are such that at no given point of time can it be compared with contracts such as cleaning. Component overhaul and maintenance by its very nature cannot be undertaken by all and sundry entities.
  • The level of technical expertise and ability required in such cases is not only exacting but specific, in that, an aircraft supplied by a manufacturer has to be serviced and its components maintained, serviced or overhauled by designated centres. It is this specification which makes the aircraft safe and airworthy because international and national domestic regulatory authorities mandate that certification of such component safety is a condition precedent for their airworthiness.
  • The exclusive nature of these services lead to the inference that they are technical services within the meaning of section 9(1)(vii) of the IT Act.

  • ii) Whether the payments made by assessee towards "overhaul repair expenses "fall under exclusionary part of section 9(1)(vii)(b)?

  • Explanation to section 9(2) of the IT Act is deemed to be clarificatory and also retrospective in nature but it does not override the exclusion of payments made under section 9(1)(vii)(b) of the IT Act which was clarified by the Supreme Court in the case of G.V.K. Industries vs ITO [2015] 371 ITR 453 (SC).
  • The 'source rule', i.e. the purpose of the expenditure incurred for earning the income from a source in India, is applicable, as stated by the Supreme Court in the case of G.V.K. Industries (supra).
  • The Tribunal had held that the overwhelming or predominant nature of the taxpayer's activity was to wet-lease the aircraft to LCAG, a foreign company. The operations were abroad, and the expenses towards maintenance and repairs payments were for the purpose of earning an income abroad.
  • Accordingly, these payments are not taxable because they have been made earning income from sources outside India and therefore fall within the exclusionary clause of Section 9(1)(vii)(b) of the IT Act.

Accordingly Delhi HC, observed that aircraft maintenance and repairs require specific level of technical expertise which are exclusive services and these, technical services under the IT Act. The payments were made to earn income from sources outside India since aircraft were allowed to be used only on international routes. Such payments are expressly excluded from the scope of FTS under section 9(1)(vii)(b) of the IT Act and therefore, not deemed to accrue or arise in India i.e. not taxable in India.

Indirect Tax
Value Added Tax ("VAT")
Asian Oilfield Services & Others vs. The State of Tripura & Other (Tripura High Court)
Absent equipment transfer, seismic survey for Oil Co. pure 'service', not 'works-contract'

Asian Oilfield Services ("the assessee") had entered into a contract with Jubilant Oil and Gas Pvt. Ltd., which is engaged in oil exploration in the State of Tripura in joint venture with c, to provide 2D Seismic Data Acquisition & Basic Processing Services.

The issue arose as to whether services rendered by the assessee were in the nature of works contract or were pure and simple services. Also, whether equipment brought in by the assessee for own use to carry out the surveys had been transferred to Jubilant Oil and Gas Pvt. Ltd. resulting in 'sale' within the meaning of section 2(25)(d) of Tripura VAT Act read with Rule 7(2) of Tripura VAT Rules, and therefore eligible to tax under section 4(2).

The VAT Department alleged that since tax on sale or purchase of goods includes tax on transfer of right to use any goods for any purpose in terms of Article 366(29-A)(d) of the Constitution, the assessee was liable to pay VAT on such transfer.

The assessee on the other hand, urged that since it was paying service tax to the Centre, in case of any conflict between Central law and State Act, VAT Act must necessarily give way to the provisions of Finance Act for service tax imposition. Being aggrieved, the assessee filed a writ petition before the High Court ("HC").

The HC observed that as per the contract with Jubilant Oil and Gas Pvt. Ltd., there was no transfer of any property. In fact, none of assessee's machinery was to remain with Jubilant. The Revenue had also failed to point out any stipulation in the contract which indicated that there was any transfer of right to use property. Hence, it was obvious that it was not a 'works contract' in terms of section 2(36) of Tripura VAT Act because no works was to be done except carrying out a survey.

The HC held the assessee remained in exclusive possession and control of the equipment and all resources supplied by the contractor. Therefore, HC concluded that the assessee was only rendering services which were amenable to tax only by the Union of India.

Accordingly, HC allowed the assessee's writ petition and directed refund of tax deducted from its account along with statutory interest.

Commercial Taxes Officer, Ajmer VSC (Rajasthan High Court)
Allows Input Tax Credit ("ITC") where sale price lower than purchase price, due to turnover discount

Sharda Agencies ("the assessee") is a dealer in cement. The assessee claimed ITC on the basis of VAT invoice, whereas it sold goods at rate lower than price shown in VAT invoice considering discount/incentive received.

The VAT Department disallowed ITC and added discount / incentive as according to him, ITC could not have been allowed on the basis of VAT invoice which was claimed higher than the price shown in VAT invoice.

The Deputy Commissioner (Appeals) allowed appeals by holding that assessee was entitled to ITC. The Tax Board, on further appeals by Revenue, upheld the order of Deputy Commissioner (Appeals). Thus, present revision petitions were filed by Revenue before Rajasthan HC.

The Revenue contended that, the VAT Department was justified as discount and commission ought to have been part of trading account and assessee claimed excess ITC which was not legally permissible.

The HC observed that the assessee received discount/incentives from the wholesaler/manufacturer on account of turnover by way of credit notes etc. which was separately shown by assessee was not in conflict under VAT Act. The assessee managed its affairs in such a manner that it sold goods lower than the value as shown in VAT invoice obviously keeping in mind that discount/commission.

The HC stated that "Act does not prohibit selling of goods lower than purchase value as per VAT invoice but ITC is to be allowed on the basis of VAT invoice".

Service Tax
Coal Handlers (P.) Ltd. vs. Commissioner of Central Excise, Kolkata, Supreme Court
Liaisoning with Coal Collieries / Railways for timely delivery to principal, not 'clearing and Forwarding agent' service

Coal Handlers Limited ("the assessee") is providing certain services as 'Agent' to Gujarat Ambuja Cements Limited and Ambuja Cements Eastern Limited ("Industries"). These Industries are public sector undertakings that need coal as a raw material for production of cement, which is their main manufacturing activity.

These Industries approached the Ministry of Industries and Ministry of Coal for determining the quantity of coal that is required to be supplied to such public sector undertakings.

These Industries had appointed the assessee for maintaining constant liaison with the railways for the actual placing of coal rakes and other related activities.

The issue was whether the services provided by the assessee amounted to 'Clearing and Forwarding Agent's services' under section 65(25) of the Finance Act, 1994 and hence subject to service tax liability.

Section 65(25) provides that a 'Clearing and Forwarding Agent' is any individual who provides a service which is either directly or indirectly connected to clearing and forwarding operations in any way, to another individual or corporation and includes a consignment agent.

After much litigation on the issue, the matter travelled to the Supreme Court ("SC"). The apex court observed that the assessee has no role in getting the coal cleared from coal collieries/supplier, nor at any stage is the custody of the coal taken by the assessee or transportation of the coal is arranged by the assessee as forwarders.

Accordingly, the apex court held that the assessee providing the service of 'Agent' does not fall within the definition of "Clearing and Forwarding Agent" and hence was not subject to service tax liability.

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.