Budget 2017: Key Tax Proposals
The Union Budget 2017, touted as the budget of many firsts, aims at long term growth and a fiscally prudent outlook. Rationalization of tax rates and reduction of tax controversies are the key focus points.
The Budget 2017 focuses on reviving long term growth with a fiscally prudent outlook. The tax proposals seek to broaden the tax base and improve tax administration. A concerted effort has been made to remove ambiguities in tax laws with an aim to revive foreign investments. Tax incentives have been proposed to give a push towards a digital economy, while changes have been made to correct the inverted duty structure in indirect taxes. The Foreign Investment Promotion Board (FIPB) is proposed to be abolished as the government continues its efforts to reform the foreign direct investment (FDI) policy, with a promise of further liberalisation. Most of the proposed tax changes are aimed at rationalization of tax and reduction of tax controversies.
Some of the salient tax features of the Budget 2017 are discussed below.
PART 1 - INCOME TAX
(a) Corporate tax rates for domestic companies
The corporate income tax rates for medium and small enterprises have been reduced. The applicable tax rates for companies for the Financial Year (FY) 2018-19 are:
(b) Key proposals which impact investments in India
(i) Tax neutral conversion of preference shares to equity shares
The position with regard to conversion of preference shares into equity shares has historically been marred with ambiguity as there were no specific provisions dealing with the capital gains tax implication on such conversion.
The Budget clarifies that conversion of preference shares to equity shares will be exempt from capital gains tax. Further, for the computation of capital gains at the time of transferring the converted equity shares, the cost of acquisition and period of holding prior to such conversion will be considered.
(ii) Fair market value to be full value of consideration
In case the consideration received for transfer of shares of an unlisted company is less than the Fair Market Value (FMV) of such shares, the FMV will be deemed to be the sale consideration for the purposes of computing capital gains in that transaction.
The FMV on such transfer will be determined in accordance with rules to be prescribed in due course.
(iii) Introduction of thin capitalization rules
Generally, a debt investment is considered a preferred method of financing a subsidiary, in comparison to equity investment. This is because the interest expense paid by a company is eligible as a deduction while computing taxable profits of the investee company. This mode of financing substantially via debt investment is termed as thin capitalization. The Indian subsidiaries are generally thinly capitalized in order to take advantage of expense deductions in respect of the interest paid on debt.
The budget proposes to restrict the interest expense that can be claimed as a deduction, to a maximum of 30% of the company's EBIDTA, in case the loan is provided by an associated enterprise. This restriction would also apply (a) where the loan is provided by a third party but an associated enterprise acts as an implicit or explicit guarantor; and (b) the quantum of interest expense is greater than INR 10 million.
It is also proposed that such interest which is disallowed can be carried forward and set off for 8 assessment years.
(iv) Concessional tax rate on interest earned by non-residents
Currently, the interest payable to a non-resident on its lending in foreign currency, is eligible for a concessional withholding tax rate of 5%. Further, interest earned by Foreign Portfolio Investors (FPIs) from rupee denominated bonds (RDBs) or masala bonds are also subject to a concessional withholding rate of 5%. However, the sunset date for such concessional rate was only till 30 June 2017.
It has now been proposed that this concessional tax regime will be extended till 30 June 2020 including for RDBs or masala bonds issued outside India before 1 July 2020.
(v) Clarification regarding applicability of indirect transfer provisions on FPIs
Shares of a foreign company are deemed to be situated in India if such shares derive its value substantially from assets located in India. Accordingly, gains derived from transfer of such shares is subject to capital gains tax in India.
The Budget clarifies that the aforementioned provision relating to indirect transfer of Indian assets will not apply to investments held by Category I and Category II registered FPIs.
(vi) Modification of regime governing off shore funds
The Income Tax Act sets out circumstances in which income of non-residents is deemed to accrue or arise in India, and is taxable in India. One such circumstance is the existence of a business connection in India. Consequently, to facilitate the location of fund managers of off shore funds in India, the Income Tax Act provides for a special regime.
Under this special regime a fund manager located in India will not constitute a 'business connection' in India if certain prescribed conditions are met. One such condition is that the minimum monthly fund size cannot be less than INR 1 billion at the end of a previous financial year, except where the fund has been established in the previous year. The Budget now proposes a further carve-out to this minimum fund size requirement by providing that this condition need not be met if the off shore fund is wound up in that financial year.
(vii) Restriction on claiming exemption on long term capital gains
The gains arising out of sale of listed equity shares are currently exempted from long term capital gains tax. This tax exemption is now proposed to be restricted to gains from transfer of listed shares which have been acquired after 1st October, 2004 and on which security transaction tax has been paid at the time of their acquisition.
Shares acquired pursuant to an IPO, FPO, bonus issue, rights issue or under the FDI Policy continue to be exempt.
(viii) Extension of capital gains exemption to RDBs
In order to facilitate greater investment by way of RDBs, it is proposed that transfers of RDBs between a non- resident to another non- resident will be exempt from capital gains tax.
Further, gains arising on account of appreciation of the rupee against a foreign currency will be ignored for the purposes of computation of full value consideration, in all cases.
Also, a proposal has been made to lower the rate of TDS on such RDBs to 5% applicable retrospectively from 1 April, 2016.
(c) Key proposals impacting corporates
(i) Deemed income provisions under the head 'income from other sources'
Receipt of gifts by a company were not chargeable to tax (other than receipt of shares). Further, certain categories of persons such as trusts or institutions were not liable to tax on such gifts.
The amendment proposes to widen the ambit to tax all persons who receive a sum of money or property (movable and immovable) without consideration or for inadequate consideration in excess of INR 50,000, subject to certain exceptions.
(ii) Transfer pricing & secondary adjustments
Expenditure incurred in respect of which payments have been made by a taxpayer to a related entity in India, are subject to transfer pricing provisions in India. Such regulations also apply to medium and small scale Indian enterprises. In order to reduce this compliance burden, the proposal seeks to exempt majority of such domestic transactions from the purview of transfer pricing.
Separately, the concept of secondary adjustment under transfer pricing provisions has been introduced. Where an Indian company is not adequately compensated for a transaction with its foreign affiliate, or if the Indian company has paid more than an arm's length price, it signifies that certain sum of money which should have been with the Indian entity, remains with its foreign affiliate. In case such money is not repatriated to India within the time prescribed, it is deemed to be an advance made by the Indian entity to its foreign affiliate. The interest on such advance, is computed as the taxable income of the Indian entity and is taxed accordingly.
(iii) Penalty on professionals in case of incorrect information is furnished
In order to ensure that accountants, merchant bankers or registered valuers undertake due diligence before furnishing a report or certificate under any income tax law, a penal provision has been introduced for furnishing any incorrect information.
The Assessing Officer or the Commissioner (Appeals) may direct the professional to pay a sum of INR 10,000 for each such incorrect report or certificate, by way of penalty.
(iv) Minimum Alternate Tax (MAT) and Alternate Minimum Tax (AMT)
The time period to carry forward MAT/ AMT credit is proposed to be increased to 15 years instead of 10 years at present.
It is also proposed to amend the provisions relating to computation of book profit for the purpose of levy of MAT. The framework for computation of book profits for Indian Accounting Standard (Ind AS) compliant companies has been proposed to ensure horizontal equity across companies following Ind AS and Indian GAAP.
(v) Restrictions on use of cash in transactions
- Deduction under section 80G (Donations to certain funds and charitable institutions) will not be available as deduction, if the donation is in excess of 2,000 in the form of cash.
- Depreciation benefit will not be available in respect of capital expenditure in the form of cash payments made to a person in excess of INR 10,000 in one day.
- No deduction under section 35AD (expenditure on specified businesses) will be available if the expenditure is in the form of cash and in excess of INR 10,000.
- No deduction will be available under business expenditure under section 40A, if payments made in cash are in excess of INR 10,000 in a day.
- Taxpayers whose total turnover does not exceed INR 20 million can apply for presumptive taxation (subject to eligibility) under section 44AD wherein the deemed income is 8% of such turnover. It has been proposed that gross receipts received through digital payments will be eligible for a concessional regime, wherein the income will be deemed to be 6% of the turnover.
- It is proposed that any transaction involving any person receiving cash in excess of INR 3 million in aggregate from a person in a day, in respect of a single transaction or a transaction relating to one event, will be prohibited. Contravention of this provision will result in a penalty equivalent to the amount received unless good and sufficient reason for such payments is proven.
(d) Other proposals
(i) Charitable trust
Currently, donations given by exempt entities to other exempt entities, are considered as 'application of income for charitable purposes' in the hands of donor trust but are not considered as income of the recipient trust.
In order to avoid trusts giving donations without actual applications, it is proposed that contributions to other tax exempt trusts will not be treated as 'application of income for charitable purposes'.
(ii) Changes to capital gains provisions
- In case of immovable property, the period of holding to qualify as a 'long term capital asset' is proposed to be reduced to 24 months from existing 36 months.
- Base year for determining the cost of acquisition for the purpose of capital gains has been changed from 1981 to 2001. The finer aspects of this amendment will be provided in the rules.
- Currently, capital gains tax is exempt if the amount received on transfer of a certain long term capital asset is reinvested in certain specified bonds. The ambit of such reinvestment options has been expanded to include all bonds with a duration of more than three years, which are notified by the Central government.
- There was an uncertainty about the applicability of concessional rate of 10% to non-residents, on transfer of shares of a private company within the period of 1 April 2013 to 31 March 2017. In order to address this, the effective date of applicability of the concessional rate has been retrospectively considered as 1 April 2013.
- In case of a joint development agreement signed for development of a project, the liability in respect of transfer of rights to execute the project is proposed to arise in the year in which the certificate of completion for the project is issued.
(iii) Benefits for start-ups
- The condition of continuous holding of 51% of voting rights has been relaxed for the purpose of carry forward of losses in respect of start-ups, subject to the condition that the holding of the original promoter/ promoters continues.
- The profit linked deduction exemption available to start-ups for 3 years out of 5 years is changed to 3 years out of 7 years.
(iv) Clarification under sections 90 and 90A
Current provisions of section 90 and 90A of the Income Tax Act provide that any 'term' used but not defined in the Income Tax Act or in the double avoidance tax agreement (DTAA) will have the meaning assigned to it in a notification issued by the Central Government, provided the same is not inconsistent with the provisions of the Income Tax Act or the DTAA.
To avoid litigation, it has been proposed that where any 'term' used in the DTAA is defined under the DTAA, the said term will be assigned the meaning as provided in the said DTAA. Further, where any term is not defined in the DTAA, but is defined in the Income Act, its meaning will be assigned as defined in the Income Tax Act or any explanation issued by the Central Government.
(v) Rationalisation of time limit for completion of assessment/ reassessment
Time limit for completion of scrutiny assessments is proposed to be reduced from 21 months to 18 months in the FY 2017-18 and further reduced to 12 months in the FY 2018-19 and thereafter.
(vi) Reduction of compliance burden for small enterprises
- In case of individuals and HUF, the threshold limit for maintenance of books of accounts is proposed to be increased to an income of INR 2, 50,000 and to a turnover of INR 25, 00,000.
- Eligible persons opting for presumptive taxation under section 44AD of the Income Tax Act will not be required to undertake an audit of accounts if the total turnover or gross receipts, as the case may be, does not exceed INR 20 million.
(vii) Cost of acquisition in tax neutral demerger of a foreign company
For the purposes of calculating the capital gains tax liability of a foreign company, the cost of acquisition in the case of transfer of shares of an Indian company by a demerged foreign company to the resultant foreign company, will be the same as it was in the hands of the demerged foreign company
PART 2 - INDIRECT TAX
(a) Customs and Excise- amendments in tariff rates
(i) Digital India initiative
- To further the Digital India initiative, import of Micro ATMs as per standards version 1.5.1, fingerprint reader / scanner, and Iris Scanner are being exempted from Basic Customs Duty (BCD), Countervailing Duty (CVD) and Special Additional Duty (SAD). Further, excise duty on the above is being exempted for domestic manufacturers.
- Parts and components for manufacture of these devices will also be exempt from BCD, CVD and SAD for imports and excise duty for domestic manufacturers, subject to actual user condition by the importer. The excise / CVD exemption for the above shall be valid till 30 June 2017.
- Import of miniaturised POS card reader for mPOS (other than mobile phone or tablet computer) are being exempted from BCD, CVD and SAD. Further, parts and components for manufacture of miniaturised POS card reader for mPOS (other than mobile phone or tablet computer) are also being exempted from BCD, CVD and SAD for imports. Excise duty exemption for such parts has been prescribed for domestic manufacturers, subject to actual user condition by importer/manufacturer. The excise / CVD exemption for the above shall be valid till 30 June 2017.
- Excise duty exemption on Point of Sale (POS) devices and all goods used for manufacture of POS devices, subject to actual user condition, is being extended till 30 June 2017.
(ii) Renewable energy
- BCD on import of Catalyst (3815 90 00) and Resin (3909 40 90) used in the manufacture of cast components of Wind Operated Electricity Generator is being reduced from 7.5% to 5%. The exemption is subject to actual user condition. Levy of SAD has been exempted till 30 June 2017.
- Further, levy of excise duty on the above mentioned Catalyst and Resin is also being exempted till 30 June 2017.
- Nil rate of BCD has been prescribed from earlier rate of 5%, on import of solar tempered glass or solar tempered (anti-reflective coated) glass used in manufacture of solar cells/panels/modules, subject to actual user condition by the importer.
- Concessional rates of 6% excise duty and CVD in case of domestic manufactures and importers respectively, has been prescribed till 30 June 2017 for solar tempered glass (and its parts and components) which are used in (a) solar photovoltaic cells or modules, (b) solar power generating equipment or systems, (c) flat plate solar collectors, or (d) solar photovoltaic module and panel for water pumping and other applications, subject to actual user condition by the importer/manufacturer.
- Concessional rates of BCD at 5% and CVD at 6% have been prescribed for all items of machinery required for fuel cell based power generating systems to be set up in the country or for demonstration purposes, subject to certain specified conditions. The excise exemption shall be valid till 30 June 2017
- Concessional rates of BCD at 5% and CVD at 6% have been prescribed for all items of machinery required for balance of systems operating on biogas/ bio- methane/ by-product hydrogen, subject to certain specified conditions. The excise exemption shall be valid till 30 June 2017.
- BCD on import of Liquefied Natural Gas has been reduced from 5% to 2.5%.
- In order to promote the Make in India initiative, exemption from payment of SAD is being withdrawn for Populated PCBs of mobile phones under Sl. No. 1 of Notification No. 21/2012-Cus dated 17 March 2012. However, till 30 June 2017 30.06.2017, a concessional rate of 2% SAD is being extended on populated PCBs for use in manufacture of mobile phones, subject to actual user condition by the importer.
(b) Customs legislative amendments
(i) Beneficial owner
The scope of 'importer' and 'exporter' has been expanded to include a 'beneficial owner'. The term 'beneficial owner' has been defined under section 2 of the Customs Act, 1962 to mean, 'any person on whose behalf the goods are being imported or exported or who exercises effective control over the goods being imported or exported'.
(ii) Filing of bill of entry and payment of customs duty
- Presentation of a bill of entry before the end of the next day, following the day (excluding holidays) on which the conveyance carrying the imported goods arrives, has been made mandatory. On non-presentation of bill of entry within the prescribed period, customs authorities may impose charges for late presentation on the importer.
- The period for payment of customs duty on import of goods has been reduced. In cases where re-assessment / provisional assessment is not involved, customs duty is required to be paid on the date of presentation of bill of entry. In case of re-assessment and provisional assessment, customs duty is required to be paid within one day from the date of return of bill of entry by the customs authorities. On late payment, the importer will be liable for payment of interest.
(iii) Exception in test of unjust enrichment
For refund of excess duty paid at the time of import, the importer is required to satisfy the test that the excess duty paid has not been passed on to the buyer of goods (Test of Unjust enrichment).
Under the current Budget, it has been clarified, that the test of unjust enrichment is not to be applied to cases involving refund of excess customs duty paid by an importer before the 'out charge order' is passed under section 46 of the Customs Act by the customs authorities. An 'out charge order' is an order allowing clearance of goods for home consumption.
(c) Excise legislative amendments
(i) Statutory timelines for disposing applications
- Earlier, there was no time limit prescribed for deciding an application for remittance of duty under Rule 21 of the Central Excise Rules, 2002, on goods that have been lost or destroyed or are claimed by the manufacturer to be unfit for consumption or marketing. Under the current Budget, a time limit of three months, extendable to six months, has been prescribed for the concerned authorities to decide the remittance of duty payable.
- Under the earlier provision, no time limit was prescribed for deciding requests for transfer of credit under Rule 10 of the CENVAT Credit Rules. Rule 10 has now been amended to provide that an application made for transfer of credit before the Deputy /Assistant Commissioner of Central Excise must be allowed within a time period of three months from the date of the application, which is extendable to six months on sufficient cause being shown.
(d) Service tax
(i) Research & Development (R&D) Cess
R&D Cess is proposed to be repealed. Consequently, the exemption under service tax will not be available on taxable services involving import of technology on which R&D Cess is now not payable. Henceforth, full service tax along with Education and Secondary and Higher Education Cess would be applicable on such taxable services.
(ii) Renting of immovable property by State Government Industrial Development Corporations
With effect from 1 June 2007, renting of immovable property by State Government Industrial Development Corporations to industrial units against a one-time upfront amount (for a long term lease) has been exempted from levy of service tax.
(iii) Value of works contract involving transfer of land
Rule 2A of Service Tax (Determination of Value) Rules, 2006 is being amended with effect from 1 July 2010 to provide that value of service portion in execution of works contract involving transfer of goods and land or undivided share of land (as the case may be), will not include the value of property in such land or undivided share of land for the purposes of computing taxable value.