Retro tax to stay!

It appears to be true that though parties fight out tooth and nail in the elections, when it comes to policy decisions at least at the Federal Government level, policies introduced by the previous Government is not reversed by the successive Government. The reason being, it could be any party ruling the country but they are all called as 'Indian Government'. The testimony is the preservation of the infamous retrospective amendment to section 9 and other corresponding sections.

The BJP led Government has preferred fiscal consolidation to foreign investors' sentiment on the retrospective amendments introduced in Finance Act, 2012. Now that the disputes due to these amendments are before various fora including international arbitration, the Government seems to have felt that let the proceedings take their own course!

But for the minor negative reaction in the stock indices during the day when the Finance Minister expressed that retro amendment will be monitored by a High Level Committee, the Union Budget 2014 seems to be well received across various spectrum including foreign investors.

With sea of fund allocations varying from few hundred crores to few lakh crores, it all counts only if they are promptly implemented. Given that this new government had just six to seven weeks to present this Budget which was watched world over, it seems that it has done its job well, pretty well.

Increasing the FDI cap in two major sectors like insurance and defense up to 49% especially sensing that foreign pensions funds, sovereign wealth funds, etc. have trillions of dollars ready to be invested and foreign governments queuing up to collaborate with Indian defense sector, should be comfortably enough to bridge the expanding fiscal deficit.

The Direct Tax amendments seem to have certain very good moves to boost investor confidence by having many welcome changes to international tax aspects like REITs and INVITs Trusts, rollback in APA, extension of concessional tax rate under section 115BBD, capital gains benefit FIIs, trading in listed Government debt securities abroad, etc..

While there is no mention about GAAR, we need to wait for the next Budget in 2015 for a deferment failing which it will be in force from April 1, 2015.

The Indirect taxes amendments seem to be more of reduction of duty rates and extension of exemptions. However, the base rates of customs duty, central excise and service tax remain as such.

A strong emphasize has been made by the Finance Minister for early implementation of Goods and Service Tax (GST) Act and Direct Tax Code (DTC). Implementation of these major fiscal laws in a timely fashion will be more than enough for this Government to feel proud and the Government's report card in 2019 will surely be an A+!

All provisions amended are applicable from Assessment Year (AY) 2015-16 onwards unless otherwise mentioned. The Act means the Income-tax Act, 1961.

Personal Income Taxation

Basic exemption limits for Individuals

The basic exemption limit in case of individuals (other than senior citizens) has been increased from existing INR 200,000 to INR 250,000. The remaining income slabs and tax rates remain same.

In case of senior citizens (above the age of 60 years but less than 80 years) the basic exemption limit has been increased from existing INR 250,000 to INR 300,000. And for persons above the age of 80 years, the basic exemption limit is INR 500,000.

Investment related deductions under section 80C

The investment related deduction under section 80C has been increased from existing INR 100,000 to INR 150,000.

Home loan interest deduction limit

Under section 24 of the Act, the deduction on interest paid on home loans borrowed is up to INR 150,000 for the first residential property. This deduction limit of INR 150,000 has been increased to INR 200,000.

However, a view could be taken that this current and proposed limit of INR 150,000 and INR 200,000 respectively is applicable only in case of the first house property loan. The interest paid for the second and subsequent home loans do not have any monetary limits to claim as deduction.

International Taxation

Real Estate Investment Trusts (REIT) & Infrastructure Investment Trusts (INVIT)

The SEBI had come up with the draft Real Estate Investment Trusts Regulations, 2013 during October last year. Due to uncertainty in the tax aspects especially on the distribution of income by the REIT to the unit holders, it did not attract many investors in this sector. The ambiguity whether the distribution would be treated as dividend income i.e. income from other sources or as capital gains discouraged foreign investment as the former is liable to tax at higher rate of 30% and the latter being 20%.

As mentioned by the Finance Minister in his Budget Speech, there is now clarity on the taxation of the incomes at the level of the REITs, distribution of incomes by REIT to unit holders and on the sponsor i.e. promoter of the Special Purpose Vehicle (SPV) for the purpose of this trust. The taxability is as follows:

  • Units of REIT and INVIT to enjoy capital gains benefits
    The units of the Business Trust (which includes REIT and INVIT) when traded on a recognized stock exchange which is subject to Securities Transaction Tax (STT) will enjoy the same capital gains benefits i.e. in case of LTCG no capital gains tax and in case of STCG then 15% tax.
  • Tax free transfer, etc. for the sponsor
     The sponsor i.e. the promoter of the SPV when he exchanges his shares in the SPV for the units of the Business Trust then such exchange is not immediately taxable rather is deferred until such time the sponsor sells those units of the Business Trusts. Section 471 has been amended to this effect. Further, if the units are listed, even if STT is paid the sponsor will not enjoy the benefit of tax exemption for LTCG2 and reduced tax rate for STCG3. In the sense, he is required to pay capital gains tax as applicable on the sale of the units. Since no tax is being paid at the time of exchange of shares for units, no stepped up cost of acquisition will be available to the units. However, the holding period (i.e. tacking) will be from the date acquiring the shares in the SPV.
  • ECB by the trust
    If the trust borrows any external commercial borrowing then on the interest payment by the trust to the non-resident lenders will be taxed at reduced rate of 5% as applicable under section 194LC (i.e. money borrowed in foreign currency).
  • Interest income
    The Business Trust is given Pass Thru status i.e. not a separate entity status. Therefore, if any interest income is paid by the SPV to the trust then such interest income is not taxable in the hands of the trust and there will be no withholding tax (WHT) by the SPV while making such interest payments. However, when the trust distributes such interest income to the unit holders then WHT at the rate of 5% in case of non-resident payee and 10% in case of resident payee will be applicable.
  • Dividend income
    In case of any dividends paid by the SPV to the trust will be subject to DDT being an Indian company and correspondingly, exempt in the hands of the trust4. Besides, the further distribution of such dividends by the trust to the unit holders will also be tax exempt.
  • Capital gains
    Any sale of assets subject to capital gains in the hands of the trust will be taxable as per applicable rates. The predominant asset of the trust will be shares held in the SPV. However, the distribution of such capital gains by the trust to the unit holders will be exempt in the hands of the unit holders. This is a welcome move as initially these distributions were treated as ordinary income of the unit holders thereby liable to tax at 30%. An exemption to such income will attract more investors into such Business Trusts.
  • Any other income
    Any other income of the trust will be liable to maximum marginal rate of tax (MMR)5. This is in line with section 164 of the Act which taxes business trusts at MMR.

Further from compliance perspective, these Business Trusts are required to file return of income and will have other compliance requirements as may be prescribed.

A new Chapter XII-FA has been introduced in the Act to deal with Business Trusts.

The above provisions will come into force from October 1, 2014.

Extended benefit under section 194LC

194LC provides for concessional WHT rate of 5% on loans borrowed in foreign currency or loans borrowed by issuance of long term infrastructure bonds. This reduced rate of 5% is lesser than the rates mentioned in any Indian tax treaties on interest payments. In order to facilitate low cost borrowing by Indian companies from overseas, the reduced rate of 5% is extended to any long term bond issued by an Indian company. The current rate of WHT on such long term bonds is 20%.

Further, the penal provision of section 206AA which levies higher rate of WHT at 20% in case of non-submission of PAN by the foreign payee will not be applicable in case of any long term bonds referred to in this section.

This provision will be applicable from October 1, 2014 and has been extended up to July 1, 2017.

Reduced tax on dividends received by Indian companies from its specified foreign company

In order to facilitate Indian companies which hold at least 26% of nominal value of equity share capital of a foreign company to bring back the profits lying in such foreign companies, the lapsed provision section 115BBD6 has been revived where such dividends received by Indian companies from the specified foreign companies will be liable to reduced tax rate of 15%.

Further, this provision has been introduced permanently i.e. without any sunset period as mentioned in previous Budgets.

Further, this provision will be retrospectively applicable from AY 2015-16 onwards.

Foreign Institutional Investors

In order to allay fears in the minds of FIIs who trade in the Indian listed securities through offshore funds, it has been clarified that the sale of securities by the FIIs will be treated as capital gains and not as business income even though their holding period of such securities may be for a short duration i.e. even if they frequently buy-sell such securities.

Given the various judgments and circulars of the CBDT that when a taxpayer frequently buys-sells securities then income generated would be treated as business income, this change in law would bring relief to FIIs to frequently trade on listed securities and avail the prevalent capital gains benefit, if applicable.

For the purpose of this amendment, the definition of 'capital asset' in section 2(14) has been amended to include securities held by FIIs as per SEBI regulations.

While there was mention in the Budget Speech about the adverse tax consequence for the Fund Managers who are situated outside India i.e. such Fund Managers may become permanent establishment (PE) in India of such offshore funds if they reside in India, no change in law seems to have happened.

Transfer of Government securities outside India between two non-residents

Any transfer of Government bonds/ debentures which are listed on a foreign stock exchange by one non-resident to another non-resident will be a tax free transaction under section 47(viib). This will facilitate the Indian Government to list its bonds and debentures in offshore stock exchanges which will be freely traded by non-residents.

Mutual Funds, Securitization Trusts, VCC and VCF are required to file their return of income

MFs, Securitization trusts, VCC and VCF were required only to file a statement of income instead of filing a return of income as the incomes of these persons were fully exempt from tax under relevant clauses of section 10 of the Act.

Now the law has been amended making it mandatory for these entities to file their return of income even if their incomes are exempt under relevant clauses of section 10. However, the MFs and securitization trusts are not required to file statement of income with the income-tax authorities.

Transfer Pricing

Roll back of Advance Pricing Agreements

Given the success story of the APA by the CBDT7, it has been proposed in this Budget that the APAs entered by Indian parties which determine the Arm's Length Price (ALP) or the Most Appropriate Method (MAM) of international transactions for the next five years from the year of entering into the APA will be applied backward for four years in the case of same Indian parties.

This means that what ALP or MAM that has been arrived for future international transactions will also hold good for immediate four previous years of international transactions. This will reduce significant amount of pending litigations.

Given that Tribunals and Courts are holding that ALP arrived at for subsequent AYs will be applicable to current year also, this is a significant move to reduce litigation especially during a period when transfer pricing disputes are proliferating.

The above benefit is, however, subject to such conditions and procedures as will be prescribed.

This amendment will take into effect from October 1, 2014.

Amendment to the definition of International Transaction

International transaction for the purpose of transfer pricing is only between two associated enterprises (AE). Section 92B(2) in order extend the meaning of AE has mentioned that even if an unrelated third party in interposed between two AEs, then any transaction even with such interposed third party will be treated as an international transaction provided that there exists an agreement between such third party and the foreign AE.

A question arises whether such third party should also be non-resident for the purpose of section 92B(2). The Finance Bill, 2014 states that whether or not such third party is a non-resident any transaction with him will be treated as an international transaction.

Interesting to note that if such third party is an Indian resident then even when there would be no cross border transaction between (the Indian AE and such third party), it will still be deemed to be an international transaction. This emphasizes the fact that an international transaction need not always be cross border transaction and vice versa which is against the line of the recent tax tribunal judgment8.

Corporate Taxation

Dividend Distribution Tax and Income Distribution Tax

The Dividend Distribution Tax (DDT) which is leviable under section 115-O of the Act, is an additional corporate tax in the hands of the company which is declaring the dividends. DDT was implemented in Finance Act, 2003. Until then, India had followed classical taxation system where the income earned by a company and distributed to shareholders suffered two levels of taxation viz., the corporate income tax at the entity level and the dividend received was taxed in the hands of the shareholders as income from other source. To avoid this, DDT was introduced where in addition to the corporate income tax the company was required to pay DDT at the rate of 15% (plus surcharge and cess) and the dividends received were tax exempt in the hands of the shareholder9. While on the face of it appears to be an integrated system i.e. the shareholders are exempt from tax, it is they who economically suffer the DDT as the company will have to back work before declaring dividends factoring the DDT to be paid by it.

The DDT was payable on the amount declared as dividend. However, the Finance Bill, 2014 has now grossed up the dividends for paying DDT i.e. DDT should not be paid merely on the dividend actually declared but has to be paid as per the formula herein:

The amount of dividend actually declared X 0.15 + The amount of dividend actually declared

In other words, whatever the number that results by applying the formula without the addition of the amount of dividend actually declared, will be the tax liability of the company as DDT.

Same is the case for income distribution by a Mutual Fund to its unit holders under section 115R.

The above change in law is applicable from October 1, 2014 i.e. any dividend distributed by a company or income distributed by a Mutual Fund on or after October 1, 2014 will have to be grossed up as mentioned above for paying DDT or IDT as the case may be.

Change in definition of Short Term Capital Asset vis-a-vis Unlisted Securities and Unit of Debt Oriented Mutual Fund

As a major setback for unlisted securities (which could be any security of an unlisted public company or a private limited company) and units of a debt oriented mutual fund, the securities or the units respectively will be treated as long term capital asset only if the same have been held for more than 36 months. In the sense, any sale of these securities at a gain within 36 months will be treated as short term capital gain and thereby liable to tax at 30% in case of resident shareholders and FIIs and at 40% in case of non-residents which includes FDIs.

This is due to the fact that listed securities are frequently traded (bought and sold) compared to securities held in a private limited company or unlisted public limited company. It appears to target the FDIs (who usually invest in private limited companies) are required to hold the shares at least for three years to enjoy lesser tax rate as long term capital gains. This, in a way, acts as a lock-in period for the FDIs to avail long term capital gains tax benefit.

Disallowance under section 40(a)

Taxes withheld under the TDS provisions have to be deposited with the Government within specified time limit i.e. on a quarterly basis. Failure to withhold or deposit after withholding such tax will result in disallowance of the entire expenditure for which tax has to be withheld. In case of domestic payments, due to various judgments, even if the taxes withheld but not deposited within the prescribed time limit but are deposited before the filing of return of income of the payer, the expenditure was allowed as an expense.

This benefit was not available to payments made to non-residents. Finance Bill, 2014 seems to address this issue where if such taxes withheld or to be withheld are deposited before filing of the return of income of the Indian payer, then such expense will not be disallowed.

As a further leeway, only in case of domestic payments i.e. the payee being an Indian resident, if there is failure to withhold tax or to deposit tax within the time limit, only 30% of such expenditure will be disallowed and not the entire expenditure.

Further, section 40(a)(ia) (in case of domestic payments) disallowance does not include salary payments, director's fees, etc. even though these payments can be claimed as a deduction by the Indian taxpayer when paid to an Indian resident. Now amendment has been made that even taxes withheld on salary payments, etc. should also be deposited within prescribed time limit to avoid disallowance under this provision.

It may be noted that in case of non-resident payee it uses the phrase 'other sum chargeable under this Act'. So, even on salary payments, director's fees, etc. taxes are required to be withheld and deposited within time to avoid disallowance under section 40(a)(i).

Corporate Social Responsibility

There was much debate whether the CSR expenditure which is mandatory in certain cases for certain companies will be allowed as a deduction against the income tax liability of such companies.

In order to nail the issue, the Finance Bill, 2014 has categorically stated that such expenses are not allowed as a deduction as it will amount to one-third amount of subsidy by the Government (given that companies are required to pay corporate tax at 33.99%). Further, this expense is below-the-line expense i.e. an expense incurred post payment of tax and which does not affect arriving at the profit of a company and therefore, cannot be treated as a business expense as mentioned in section 37 of the Act. However, if such CSR falls within any other provisions between sections 30 and 36 it may be allowed as a deduction.

Other Relevant Amendments

New type of Income from other source

Any advance received for transfer of a capital asset and forfeited due to failure to complete the transaction will be treated as income from other source10. But for this provision, the advance money could be treated as a capital receipt. However, if the transaction goes through, the advance received will be treated as capital gains and liable to tax in the year of transfer of such capital asset.

The definition of income11 has been amended to include this type of income. Also, section 51 which reduces such advance received from the cost of acquisition or written down value of the concerned capital asset (which is a recapture provision at the time of sale of such capital asset) has been amended to avoid double taxation. If any advance is received and forfeited which will be liable to tax under this new provision, the same amount cannot be reduced from the cost of acquisition, etc. of such asset under section 51.

Speculative transactions not to include commodity derivatives which suffer CTT

The Finance Bill, 2014 clarifies vide amending clause (e) to section 43(5) to state that those transactions which deal with trading in commodity derivatives that suffer Commodities Transaction Tax will not be treated as speculative transaction.

This is more relevant for the purpose of setoff and carry forward of losses incurred under these transactions with other business income as loss under speculative business cannot be offset against any business income.

This amendment is to be applied retrospectively from AY 2014-15 onwards.

'A' residential house is 'One' residential house

Two of the Karnataka High Court judgments have been nullified by this amendment. In case of sale of residential property or any other long term capital asset (other than a residential property) which results in capital gains, then such gains will be tax exempt if it is reinvested within specified time in another residential property.

Much dispute arose whether such capital gains have to be reinvested in one residential property or could be invested in more than one residential property. Two relatively recent Karnataka High Court judgments12 held that there is no restriction to reinvest in just one residential house and it could be invested in more than one as the article 'a' used in sections 54 and 54F does not denote a numerical value. Further, the SLP filed by the tax department was also dismissed by the Supreme Court thereby making the Karnataka High Court judgments law of the land.

Now this benefit has been taken away clarifying that the reinvestment has to be in just one residential property and not more than one. The capital gains tax exemption will be limited to only one residential property. If two or more house properties are procured or constructed then the one with maximum value should be claimed as tax exemption.

Power sector

The profit linked benefit under section 80-IA for companies involved in generation, distribution and transmission of power has been extended up to March 31, 2017.

Footnotes

1 Tax free transfers – Section 47(xvii)

2 Section 10(38) of the Act

3 Section 111A of the Act

4 Section 10(34) of the Act

5 MMR is the tax rate which is the highest in the relevant assessment year. Usually it is 30%.

6 Lapsed on March 31, 2014

7 More than 200 APAs have been inked within two years time

8 DCIT, Hyderabad vs. M/s IJM (India) Infrastructure Ltd, Hyderabad (2014-TII-114-ITAT-HYD-TP)

9 Section 10(34) of the Act

10 Clause (ix) to section 56(2) of the Act

11 Section 2(24) of the Act

12 CIT vs. Ananda Basappa (2009) and CIT vs. KG Rukminiamma (2011)

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.