February 02, 2021
India Budget 2021: Steadying the Ship
The Indian Finance Minister (FM), Nirmala Sitharaman, presented the Union Budget (Budget) of India for the financial year (FY) 2021-22 on February 1, 2021. This was a crucial Budget for the Government, especially against the backdrop the contraction of the GDP by 7.7 percent caused by the COVID-19 pandemic, which is expected to continue to make the road to recovery a difficult one. It appears, however, that the Budget has delivered the goods.
From a reforms perspective, this Budget carries forward the ongoing focus of this Government on increasing administrative ease, transparency, and simplification of legal provisions. In her speech, the FM mentioned the intention of the Government to introduce a new Securities Law code to consolidate laws under the Securities and Exchange Board of India Act, 1992, the Depositories Act, 1996, the Securities Contracts Regulation Act, 1956 and the Government Securities Act, 2007. She also a mentioned an Investors’ charter to assimilate the rights of all financial investors across all financial products. The turnover and paid-up capital thresholds for setting up of One Person Companies are proposed to be removed and the residence requirement for sole members is proposed to be diluted. If adopted, a sole member will be required to remain in India for a minimum of 120 days (as opposed to the current requirement of 182 days). NRIs will also be allowed to set up such companies. On the FDI front, the cap on the insurance sector is proposed to be liberalised from the extant 49 percent to 74 percent. This is a welcome move, which will go a long way in developing the insurance sector in the country.
With respect to direct taxes, tax rates largely remain unchanged although the Budget seeks to introduce a number of procedural changes.
Whilst last year saw the introduction of faceless assessments, this year’s Budget introduces a faceless Income Tax Appellate Tribunal to simplify the appellate procedure. All hearings before the tribunal are now proposed to take place over video conferencing. To limit prolonged uncertainty of proceedings, the statute of limitations for reopening of tax assessments has been reduced to three years from the relevant assessment year (AY) including for indirect transfers which currently can be reopened for a period of sixteen years from the relevant AY. In an attempt to foster compliance and reporting, the Budget has introduced provisions for application of higher tax rates for non-filers of income tax returns. Further, the Income Tax Settlement Commission has been disbanded, whilst the Authority for Advance Rulings framework has been overhauled.
Substantively, the Budget proposes a slew of amendments to the International Financial Services Centre (IFSC) to further ease operations in the IFSC and to incentivise setting up in the IFSC. These include introduction of a tax holiday for aircraft leasing companies, tax exemption for relocating offshore funds in the IFSC, tax exemption to investment divisions of foreign banks located in IFSC.
To further bolster the start-up ecosystem, the Budget proposes to extend the eligibility for claiming tax holiday and extend the capital gains exemption for investment in start-ups by one more year – March 31 2022.
The Finance Act, 2020 had abolished Dividend Distribution Tax (DDT) to introduce a dividend withholding regime. In furtherance of this move, the Budget proposed to provide that the advance tax liability on dividend income shall arise only after the declaration / payment of dividend and not on accrual. Further, dividend payments to REIT (Real Estate Investment Trust) / InvIT (Infrastructure Investment Trust) have also been proposed to be exempted from withholding tax and lower withholding tax rates under the relevant treaty has now been proposed to be introduced for Foreign Portfolio Investors (FPIs).
The Finance Act, 2020 had also introduced tax exemptions for Sovereign Wealth Funds (SWFs) and Pension Funds (PFs) for income in the nature of dividend, interest or long-term capital gains arising from investments made by them in India in infrastructure facilities. The Budget has rationalised these provisions thereby giving an impetus to SWFs & PFs to make further investment into India. Some of the measures include relaxation for Alternative Investment Funds (AIFs) investing into infrastructure facilities, extension of exemption to SWFs & PFs investing through Non-Banking Finance Company-Infrastructure Debt Fund / Infrastructure Finance Company (NBFC – IDC / IFC), allowing SWFs & PF to borrow & undertake activities for the purpose of monitoring its investment in India. The intent behind this move is to encourage long term stable capital participation from sovereign wealth funds, to replace Government spending in the creation of infrastructure assets and also foster economic relations with such countries.
In a surprise move in last year’s Finance Act, 2020, the Government had expanded the scope of the Equalisation Levy (EL) to cover non-resident e-commerce operators making supplies in India. The provisions as they were introduced were ambiguous and created a lot of confusion among stakeholders. Recognising this, this Budget has sought to provide some clarifications such as defining ‘online sale of goods’ and ‘online provision of services’, and removing income that is already taxed as royalty or fees from technical services from the purview of the EL. However, these clarifications have largely missed the mark as the definitions make the ambit of the EL wider and vaguer, and do not clarify whether financial services transactions, B2B transactions, non-profit businesses such as education, healthcare etc. and inter-company transactions fall within the scope of the EL.
On the infrastructure side, the FM recognizing the need for long term debt financing has proposed to introduce a bill to set up a professionally managed Development Financial Institution which will act as a provider, enabler and catalyst for infrastructure financing with the ambition of having a lending portfolio of at least INR 5 trillion in three years’ time. The Budget also proposes to make suitable amendment in the relevant legislation to allow debt Financing of InvITs and REITs by FPIs. This will further ease access of finance to InvITs and REITs thus augmenting funds for infrastructure and real estate sectors.
A long-standing demand of the industry has been that of allowing Indian companies to list abroad. While it was expected that the Budget would provide some clarity thereof, no such announcement has been made.
In some interesting developments for the education sector, the Budget reiterated that higher education in India will soon come under a single regulator, which will have a separate department / body each for standard-setting, accreditation, regulation and funding. This is a reiteration of the vision of the National Education Policy, 2020 and the Government is therefore, more determined than ever to streamline higher education in India. On the health care side, the FM announced an overall increase in the healthcare budget by 137 percent to INR 2.23 trillion (inclusive of a dedicated INR 350 Billion for COVID-19 vaccines and more, if required). The Budget promises to be the shot in the arm that the healthcare industry has been looking for. Notably, the Atma Nirbhar Swasth Bharat Yojana - a centrally funded healthcare infrastructure development scheme – aims to tackle two key aspects – firstly, to drastically improve access to primary, secondary and tertiary healthcare (along with increased connectivity through the National Digital Health Mission) for a larger population, and secondly, an increased state of preparedness to deal with public health emergencies.
With respect to the energy sector, the FM recognised the issue with Discoms which have been monopolies and mostly government owned entities. It has been proposed to put a framework in place that will enable competition and increase their efficiency. This should create opportunities in energy sector and remove bottleneck in the power generation supply chain.
In summary, the Budget does provide clarity regarding some long-standing issues which should promote certainty and boost foreign investor confidence. The Budget has been focussed on overhauling the tax administrative framework to encourage a trust based system and ease of compliance. However, a number of questions remain unanswered, and time will tell whether and how the promises made will be kept. We have provided below a more comprehensive analysis and further insights on the 2021 Budget proposals. Hope you enjoy reading it.
Equalization Levy Expansion: Overbroad, RETROACTIVE, Ambiguous and Payable on a 3rd Party Seller’s Income
InvITs and REITs permitted to borrow
In yet another case of multiple regulators taking contrary positions, InvITs and REITs were facing procedural hurdles when looking to borrow funds. While the securities exchange regulator, SEBI permitted REITs and InvITs to borrow monies from various sources, banks were extremely reluctant to lend to them. Banks were weary since (i) the Indian Trusts Act, 1882 (“Trusts Act”) did not specifically permit trusts to borrow funds, and the borrowing was generally undertaken via general powers given to trustees; and (ii) the regulators left the decision making with respect to enforceability of the rights of the banks to InvITs and REITs to the lending institutions. It was in this background, that InvITs and REITs have sought clarity on this by way of appropriate amendments to the regulatory framework.
The Trusts Act is not proposed to be amended, probably since this may have far reaching implications covering within its ambit not just REITs and InvITs, but even other trusts. However, the Finance Bill has proposed to make amendments in other legislations to cover for the above. These are:
The above should provide the adequate comfort to banks, and should encourage lending to the REIT and InvIT regime.
Hike in FDI for insurance: A long awaited step
The foreign direct investment ("FDI”) limits for insurance sector in 2014-15 was extended to 49 percent (from the erstwhile 26 percent). The industry sought for further liberalisation of the FDI limits in the sector considering the stringent regulatory framework in place for insurance companies, and the regulatory oversight of the insurance regulator, the Insurance Regulatory and Development Authority of India.
In the budget speech for the budget 2019-20, the Finance Minister had proposed expanding FDI in insurance sector, and permitting 100 percent FDI in insurance intermediaries. Based on this, in February 2020, the FDI regime was liberalized, and 100 percent FDI was permitted into insurance intermediaries. However, insurance companies still were permitted to have only 49 percent FDI, in addition to control being with Indian residents at all times.
The Finance Minister in her Budget Speech has proposed expanding the FDI limit for insurance companies to 74 percent, and permit foreign ownership and controls. The Budget Speech states that the majority of the board of directors and the key managerial personnel shall be Indian residents, with at least 50 percent directors being independent. When the regime was liberalized for insurance intermediaries, conditions were imposed which were ambiguous and broad, and raised significant concerns, especially from a structuring perspective. The fine print for this expansion of FDI from 49 percent to 74 percent is expected in due course. It may be interesting to see the exact checks and balances which are introduced in this regard.”
The current Government has been taking various measures to operationalize the International Financial Service Centre (“IFSC”) and has been providing various benefits to units set up in the IFSC – both on the regulatory and tax front. The IFSC seeks to bring to the Indian shores, those financial services transactions that are currently carried on outside India by overseas financial institutions and overseas branches / subsidiaries of Indian financial institutions. The IFSC Authority has been provided statutory recognition under the IFSC Authority Act to act as a unified regulatory authority to develop and regulate the financial products, financial services and financial institutions located / performed in the IFSC. The establishment of IFSC Authority to act as a single-window for regulating activities in an IFSC should also help build investor confidence through consistency, transparency and clarity in policy measures. The Income-tax Act, 1961 (“ITA”) provides several incentives to units located in IFSC, inter-alia including 100 percent tax holiday under Section 80LA, reduced minimum alternate tax, concessional withholding tax on interest income, exemption from capital gains tax on transfer of specified securities etc. In September 2020, the Taxation and Other Laws (Relaxation and Amendment of Certain Provisions) Act, 2020 provided certain tax incentives for Category-III Alternative Investment Funds (“AIFs”) located in the IFSC to encourage relocation of foreign funds to the IFSC.
The Finance Bill, 2021 (“Finance Bill”) yet again reflecting the seriousness of the Government in promoting the IFSC seeks to provide several benefits for units established in IFSC:
The Finance Bill has proposed the following provisions to provide for tax neutrality:
While these changes are welcome, it may be helpful to clarify certain other industry asks for AIFs in IFSC. A clarification on non-classification of an AIF in IFSC as a member of an association of person (“AOP”) will provide certainty to fund managers and investors in situation of AIFs in IFSC which co-invest alongwith domestic AIFs. Further, incentives for capital gains tax on exits by AIFs in IFSC for investments made in initial period of three years may provide certain additional benefits to establish AIFs in IFSC. Lastly, while a robust taxation regime has been introduced for Category III AIFs in IFSC, given that a Category III AIFs in IFSC would be required to obtain a foreign portfolio investor (“FPI”) license as well, it is unclear how tax provisions as applicable to Category III AIFs and FPIs will work in parallel with each other.
In order to promote investment by certain Sovereign Wealth Funds & Pension Funds (“SWFs & PFs”), which are in the form of long term stable capital, the Finance Act, 2020 (“FA, 2020”) exempted income of an SWF & PF that is in the nature of dividend, interest or long-term capital gains arising from an investment made by it in India in infrastructure facilities as defined under the under Section 80-IA (4) of the ITA. The aforesaid income is exempt if it is made in a company or enterprise carrying on the business of developing, or operating and maintaining, or developing, operating and maintaining any infrastructure facility. The benefit of the provision is also allowed if the SWFs & PFs made investment through Infrastructure Investment Trusts / Real Estate Investment Trust (“InvITs / REITs”) and AIFs. In case of AIFs, the exemption is allowed to SWFs & PFs if their investment has been made through Category I / II AIFs which have 100 percent investment into entities engaged in ‘infrastructure facility’ as defined under the ITA. While the exemptions were a welcome move and positive for the industry, numerous concerns were raised on the practicality of some of the conditions that were laid out for SWFs & PFs to avail of the exemptions.
Following representations received by the stakeholders on this subject, the Finance Bill has proposed rationalisation of the existing provisions. Proposed amendments in this regard are as follows:
The Finance Bill also proposes to provide an additional exemption to PFs. Under the current provisions, a PF can take benefit of the exemption, inter-alia, if it not liable to tax in its home jurisdiction. The Finance Bill clarifies this position and proposes that if the PF is liable to tax but exemption from taxation for all its income has been provided by the foreign country under whose laws it is created or established, then such PF shall also be eligible for exemption under these provisions. You can read more about this proposed amendment in the ‘Liable to tax’ section.
The interpretation of the term “liable to tax”, which is the lynchpin of the definition of a “resident” in tax treaties based on the OECD Model Tax Convention on Income and Capital (“OECD Model”), has been the source of some litigation in India in the past. The issues examined by the courts include: Is a tax-exempt person such as a pension fund or a charitable institution “liable to tax” under the laws of the state which exempts it?1 Whether a person who earns only income which is tax-exempt in a state could be regarded as being “liable to tax”?2 Whether a person established in a state with no income tax law could be regarded being “liable to tax” therein?3 Whether a person who is liable to tax, but not on income, but another tax [listed in Article 2 (Taxes Covered) of the tax treaty] is considered to be a treaty resident?4
The Budget has attempted to provide what appears to be an exhaustive definition of the term “liable to tax” in Section 2(29A). Under this definition, a person is liable to tax if “there is a liability of tax on such a person under any law for the time being in force in any country, and shall include a case where subsequent to imposition of tax liability, an exemption has been provided” (emphasis supplied).
The reference to “a liability of tax… under any law” appears to not only codify, but also expand upon, the decision of the Bombay High Court in Chiron Behring.5 In this case, a fiscal transparency established in Germany was liable to trade tax, but not income taxation. The High Court noticed that Article 2 of the Germany-India tax treaty listed the trade tax as one of the taxes covered, and therefore, considered liable to tax. The decision has been criticised,6 since the trade tax applied to all trading operations carried on in Germany. However, it was not levied on a person “by reason of domicile, residence, place of management or any other criterion of a similar nature”, which was the threshold under Article 4 of the tax treaty. The new threshold introduced by the Budget for a person to be considered to be liable to tax in a country appears to be much lower than the OECD meaning of the term employed by tax treaties. The phrasing “a liability to tax on a person” appears to expand the interpretation in Chiron Behring (supra) insofar as it would not require a tax to so much as be listed as a covered tax under the equivalent of Article 2 of the OECD Model. Literally, that wording also appears to lower the threshold below the requirements of Article 4 of the OECD Model to an extent that an impersonal liability to tax may render a taxpayer to be a resident of contracting state. It is unlikely that such a result may have been intended, lest the literal interpretation lead to a seemingly absurd result that a taxpayer should qualify as a treaty resident of every state in which it pays any tax whatsoever.
Whilst the term belongs to the realm of tax treaties essentially, “liable to tax” has also been adopted – in a similar context – in Section 6 and Section 10(23FE) of the ITA. However, the Memorandum to the Finance Bill appears to suggest that the definition has been inserted also for the purposes of tax treaties concluded under Sections 90 or 90A of the ITA. Therefore, India appears to be lowering the threshold for non-residents to claim tax treaty entitlement through the ITA, even if it may not be intended by the treaty itself.
The term “liable to tax” and has a long history in the context of tax treaties since its adoption in the 1963 OECD Draft Convention, and has acquired the meaning of “comprehensive taxation” in a state within the “international tax language”, although it is less than certain as to how comprehensive is comprehensive enough. The phrase “a liability of tax” may also be interpreted as meaning any liability to tax, thus lowering the international threshold.
However, not all aspects of the definition may be viewed as lowering thresholds for taxpayers. The term “a liability of tax on a person” may be interpreted as being different from a person being “liable to tax”. It may be interpreted to imply a primary obligation to actually pay tax. Although the latter part of the definition, which states that the term includes “a case where subsequent to imposition of tax liability, an exemption has been provided”. Consequently, the definition may be interpreted to require an initial imposition of tax so as to exclude persons (like pension funds, charities and other exempt organisations) which are never required to pay any tax in the first place. This would be an additional threshold than what is intended in tax treaties.
Such an interpretation would be a departure from the international consensus on the meaning of the term “liable to tax” for tax treaty purposes. It would also raise the question about how far domestic law changes to “undefined terms” in tax treaties may influence their interpretation for tax treaty purposes under provisions similar to Article 3(2) of the OECD Model. For instance, Explanation 4 to Section 90 of the ITA states that any treaty terms that are not defined under the treaty but are defined under domestic law would derive their meaning from the domestic law definition.
It appears that there might be significant gaps between the intention and text of the law, which may not augur the Finance Ministry’s motto of reducing litigation and inducing certainty. Perhaps, all concerned might profit from a reconsideration of the definition to bridge the gaps between policy and law.
Equalization Levy Expansion: Overbroad, RETROACTIVE, Ambiguous and Payable on a 3rd Party Seller’s Income
The Finance Act, 2016 introduced the equalization levy (“EL”) at rate of 6 percent on consideration for provision of “specified services” received or receivable by non-residents from Indian residents or non-residents having a permanent establishment (“PE”) in India (“2016 EL”). The FA, 2020 expanded the scope of the EL to cover non-resident e-commerce operators making supplies in India or having a nexus with India by imposing a 2 percent EL on the amount of consideration received or receivable by an “e-commerce operator” from “e-commerce supply or services” made or provided or facilitated by or through it to specified persons (“Expanded EL”). The 2016 EL and the Expanded EL are hereinafter collectively referred to as “EL”. The manner of introduction of the Expanded EL (without any prior debate or consultation) was widely criticized by the industry and the expansive language of the provisions created several interpretational issues.
The Memorandum to the Finance Bill notes that the Government felt the need to provide certain clarifications to correctly reflect the intention of certain provisions of the Expanded EL. In this regard, Finance Bill has made the following three changes to the Expanded EL retroactively, with effect from April 1, 2020:
Non-resident companies cannot be expected to be prepared for these retroactive changes and it is unfair to companies that have conducted a year of operations to be subject to retrospective taxation in this manner. The detailed analysis is set out below along with legacy issues which remain unclarified.
Non-applicability of EL on considerations which are taxable as royalty or fee for technical services:
Definition for “online sale of goods” and “online provision of services”:
Scope of “consideration received or receivable from e-commerce supply or services” defined:
Clarification on income-tax exemption:
While the Expanded EL provisions were made applicable from April 1, 2020, the ITA provides that any income arising from any e-commerce supply or services made or provided or facilitated on or after April 1, 2021 and chargeable to EL is exempt from income-tax. The Finance Bill proposes to correct this mismatch to provide for income-tax exemption on any income arising from any e-commerce supply or services made or provided or facilitated on or after April 1, 2020.
Missed Opportunities and open issues:
The proposed amendments to the provisions of EL are unlikely to provide any significant certainty or clarity to taxpayers. Further, the Government has also failed to clarify several other open issues in relation to taxation of digital transaction:
Impact on USTR proceedings
The Office of the United States Trade Representative (“USTR”) has found that the Expanded EL to be actionable under the Trade Act of 1974 on account of inter-alia obligating US companies to pay additional taxes, forcing US companies to undertake costly compliance measures and subjecting US companies to double taxation and being inconsistent with international tax principles. While the report does not mention any measures in response to the EL; any retaliatory tax could possibly be aimed against Indian tech companies and software service exporters. Additionally, there is an India-USA trade deal stuck in the pipeline, the negotiation of which could be impacted by the findings of the report.
The amendments proposed by the Finance Bill do little to help India’s case before the USTR as they create more uncertainty and potentially increase the tax impact on non-resident e-commerce operators.
The Finance Bill proposes introduction of a new section, Section 194Q, providing for a Tax Deducted at Source (“TDS”) on purchase of goods with effect from July 1, 2021. The applicability of the Section has been explained below:
Section 196D of the ITA provides that where any sum is payable to a FPI in the nature of income received in respect of securities (other than units referred to in Section 115AB) or capital gains arising from the transfer of such securities, then TDS shall be applicable at the rate of 20 percent. As the rate of TDS is specifically set out under the section, a more beneficial tax rate provided under the relevant tax treaty cannot be applied. In light of representations from stakeholders requesting that more beneficial treaty rates be applicable for payment made to FPIs, the Budget proposes to add a proviso to Section 196 which provides that tax treaty rate of deduction will be applicable if the FPI furnishes the tax residency certificate required under Section 90(4) or 90A(4) of the ITA. This much awaited amendment is intended to take effect from April 1, 2021, and would help avoid situations where the FPI would have to request for tax refunds in case tax at higher rates would have been withheld.
In a mergers and acquisitions (“M&A”) context, the availability of depreciation on acquired goodwill has often been a key question. It is not unusual for the acquirer to pay a consideration in excess of net asset value for a business, and this excess has typically been regarded as a payment for the acquisition of the ‘goodwill’ attendant to the business acquired – an intangible asset generated by virtue of the good business practices and a strong reputation.
The answer to this question, until now, has been the subject of some debate. In 2012, the Supreme Court ruled13 simpliciter that goodwill is a depreciable asset and subsequently, taxpayers have generally been able to claim depreciation on goodwill in the context of business acquisitions and slump sales. However, the wording of several sections of the ITA14, which the Supreme Court did not consider in its decision, left in doubt the exact quantum of depreciation that a taxpayer would be able to claim on acquired goodwill in a merger context.
For example, Explanations 7 and 7A to Section 43(1) provided that where, pursuant to a merger, a capital asset is transferred by the merging company to the merged company, the actual cost of the transferred capital asset to the merged company will be the same as it would have been if the merging company had continued to hold the capital asset for purposes of its own business.
This and similar provisions have been interpreted by the Indian tax authorities to imply that, pursuant to a merger, the surviving company would only be eligible to claim depreciation on assets in respect of which the merging company was entitled to claim depreciation. Since goodwill is a self-generated asset and did not exist as an asset on the books of the merging company, the merging company would not have been entitled to claim depreciation on goodwill. Taxpayers on the other hand argued that the consideration paid in excess of the net asset value of a business could be recognized as the cost of acquisition of goodwill, be serve as a base for depreciation, especially where such recognition was permitted by applicable accounting principles.
Tribunals however, have been divided on the matter.15 While there have been some judgments in favour of the taxpayer, the Indian tax authorities have appealed these rulings.
Changes proposed by the Budget, set to come into effect from April 1, 2021, lay the debate to rest by simply excluding goodwill from the ambit of depreciable assets. The changes will be applicable to M&A transactions across the board.
Further, the proposed changes provide for depreciation already claimed on acquired goodwill will be reduced from the cost of acquisition of such goodwill, which will result in a reduction of the cost base, and a consequent increase or decrease in future capital gains or losses respectively.
The proposed changes also seek to exclude goodwill from the definition of “block of assets” with effect from April 1, 2022, and in the interim i.e., with effect from April 1, 2021, make provision for the issuance, by the CBDT, of specific rules for the computation of capital gains arising from the transfer of a block of assets that includes goodwill.
The Memorandum to the Budget argues that since, depending on a how a business runs, goodwill may see appreciation or no depreciation in its value. Therefore, the Memorandum concludes, there is no justification for goodwill to be treated on par with other intangible assets and plant and machinery when it comes to depreciation. This is despite the fact that an applicable accounting standard may nonetheless require recognition of goodwill, and its subsequent impairment.
While the Government has effectively overruled a taxpayer friendly ruling of the Supreme Court, the proposed changes do serve to bring closure to the issue of the availability depreciation on goodwill. However, since the proposed changes are prospective in their applicability, the fate of the appeals filed by the Indian tax authorities remains to be seen.
Parties to transactions negotiated or consummated on the basis of certain assumptions or positions with respect to the availability of depreciation on goodwill may also consider the need for appropriate purchase price adjustments.
A transfer of a business undertaking as a result of a “sale” for a lumpsum consideration is referred to as a ‘slump sale’ in the ITA. A simplified computation method, and potentially lower tax rate make slump sales attractive. For example, a seller can avail a concessional tax rate for capital gains where the business undertaking being sold has been held for more than 3 years (even if the assets of that undertaking have been held for a shorter period). Additionally, the taxable ‘gains’ in case of a slump sale are computed as the difference between the sale consideration and the net worth of the business undertaking, as opposed to the underlying cost of acquisition of each asset. Further, exemption from Goods and Services Tax makes a slump sale a popular mechanism of business transfers.
The contours of a slump sale and taxpayers’ eligibility for its benefits have been litigious. One of the issues concerning slump sales was whether they included only a ‘sale’ for monetary consideration or also other forms of ‘transfer’ – such as an exchange of the business undertaking for other assets such as shares of the purchaser entity. Case law from different High Courts on this issue had been inconsistent.16
The definition of a slump sale has been amended in the Budget to put this controversy to rest. It replaces the word ‘sale’, and instead defines the term to include the transfer of an undertaking "by any means”. The term ‘transfer’ has been defined broadly under the ITA to include specifically an ‘exchange’, ‘relinquishment’ and ‘extinguishment’.
The latitude of this definition can be appreciated in light of a Supreme Court decision in which it held that the rights of shareholders of a merging entity are “transferred” because of the “extinguishment” of their shares in the process of a merger.17 This clarification brings certainty with respect to the scope of the term ‘slump sale’, and allows for tax efficient transactions without the risk of litigation.
According to the Memorandum to the Finance Bill the unintended ambiguity with respect to the interpretation of a slump sale had caused taxpayers to disguise other forms of transfer as cash transactions. Noting the original intention, however, it also notes that the original definition of a slump sale also applied to transactions that are sales ‘in effect and substance’. The amendment is intended merely to clarify this.
Taxpayers were taking a view that a slump exchange is not a taxable transaction given that specific provisions applicable in slump sale did not apply to an “exchange”, and the cost of the undertaking could hence not be determined. The proposed change rests the controversy by providing all slump sale transactions as taxable. However, ambiguities on other aspects pertaining to slump sales remain – such as the applicability of Section 56 of the ITA to the recipient of the undertaking, qualification of “lumpsum’ criteria in case of multiple payments based on milestones, etc - on which certainty would be welcome to make this mode of alienation more attractive.
The Authority for Advance Rulings (“AAR”) is a quasi-judicial tribunal set up in 1993 with the specific aim to provide certainty to non-resident investors on their Indian tax incidence. However, over the last decade or so, the AAR has accumulated a large backlog of pending cases. While the statutory requirement is for the AAR to pronounce a ruling within six months, it practically takes at least 5-6 years from the date of application for a final ruling to be delivered. The Finance Memorandum has recognized that the positions of Chairman and Vice-Chairman have remained vacant due to non-availability of eligible persons (being retired Supreme Court and High Court judges). Owing to these vacancies, the AAR has not been functioning in an efficient manner and the Budget proposes to re-look at the system in line with its objective of promoting efficiency in tax administration. Finance Bill proposes to do away with operation of the AAR and replace it with the Board for Advance Rulings (“BAR”).
The proposals in this regard have been set out below:
In effect, the Finance Bill proposes to change the unique nature of the AAR where rulings were binding on the parties and delivered by a retired Judge into a one where rulings are non-binding and delivered by the Revenue. The latter system of private letter rulings is prevalent in most jurisdictions such as USA, UK and Ireland. In line with the global system of private rulings, the advance ruling pronounced by the BAR will not be binding on the taxpayer or the revenue. It is yet to be seen how far the adversarial nature of the process is retained; the fine print of the notifications issued by the Central Government will provide more clarity on this. Every notification issued shall be laid before the parliament.
It is also unclear to what extent the BAR will function as a quasi-judicial tribunal. The Finance Bill proposes to include provisions that state that every proceeding before the BAR shall be deemed to be a judicial proceeding for the purposes of certain provisions of the Indian Penal Code. It is unclear on whether BAR could qualify as a tribunal carrying out judicial proceedings in the absence of the appointment of judicial members20. It is also worthwhile to consider whether a different approach could have been taken to retain the current framework of the AAR by relaxing the eligibility criteria of the members, especially since the Supreme Court has directed the setting up of National Tribunal Commission for appointment of members in various tribunals.
This proposal is a major blow for existing taxpayers who have approached the AAR to obtain tax certainty on complex international tax questions with an expectation of a binding ruling by a tribunal. The relegation of the AAR to BAR makes the system a lot less attractive to foreign taxpayers since the rulings are not binding and the process is no longer one which will be examined from the viewpoint of a fair and unbiased retired High Court / Supreme Court judge. This is especially concerning since the entire case load of the AAR is proposed to be transferred to the BAR.
Importantly, it is proposed that there shall be no statutory provision stating that the ruling pronounced by the BAR shall be binding on the parties. While this proposed omission may have been made to introduce an appeal mechanism, it may result in confusion. For e.g. if a taxpayer gets a favourable advance ruling, can the tax department initiate regular tax proceedings against the applicant? Logically, the tax department should respect the ruling of the BAR but in the absence of clear provisions, ambiguity remains. It is also not clear how the appeal process will tie in with the existing tax assessment process adopted by the Revenue. or the circumstances and timelines under which such appeal right can be exercised.
Having said that, the advance ruling mechanism may still be a chosen mode of dispute resolution to resolve large tax disputes if it can enable them to directly approach the High Court after an unfavourable ruling from the BAR, without having to go through the long and arduous regular tax assessment process which typically takes 10-15 years. Given that the time limit of six months for pronouncement of ruling is proposed to be applicable to the BAR, it is hoped that the objective of administrative efficiency is met and the timeline is strictly followed going forward.
Currently, for transfer pricing and international tax matters, it is possible for the taxpayer to choose the Dispute Resolution Panel (DRP) mechanism, a time-bound process which enables the taxpayer to directly make an appeal to the Income-tax tribunal from the assessing officer’s (“AO”) order, once DRP issues directions to the AO. While in most cases, the DRP’s directions are not effective in providing taxpayers’ relief, taxpayers can use this mechanism as a fast track method for getting heard before the tribunal. It is hoped that such efficiency in meeting the prescribed timelines is also followed by the BAR.
Overall, with several questions still unanswered, it is unclear on how effective the new BAR framework will be vis-à-vis the current AAR framework, considering that administrative efficiency was the driving factor behind this move.
Re-haul of the provisions related to income escaping assessment / search assessments
Section 147 of the ITA provides that if the AO has reason to believe that any income chargeable to tax has escaped assessment for any AY, he may assess, re-assess or re-compute such income by issuing a notice under Section 148 of the ITA. Assessment / re-assessment in cases where search is initiated is governed by a separate set of provisions including Sections 153A, 153B, 153C and 153D. Owing to the time frames allowed under these provisions for the AO to complete assessments (generally 4 to 6 years), taxpayers face uncertainty regarding their tax positions for long periods of time.
Due tDue to the advancement in technology, income escaping assessments / search assessments to a large extent has become information driven. Recognizing the same, the Budget has proposed to completely reform the system of income escaping assessment / search assessments. Some of the salient features of the proposed reformed system are as below:
As can be inferred from the above, the crux of Section 147 of the ITA has been revamped. Earlier, for re-assessment proceedings to be initiated, the pre-requisite was for the AO to have a ‘reason to believe’. However, as per the revamped provisions, the pre-requisite now is for the AO to have ‘information which suggests that income chargeable to tax has escaped assessment’, which as discussed above, has been clearly defined. The earlier threshold of ‘reason to believe’ was vague and subjective which led to widespread litigation on the matter. Considering that the newly introduced threshold of ‘information which suggests that income chargeable to tax has escaped assessment’ has been defined, it is likely to reduce litigation in this regard.
In terms of the timelines, the amendments proposed are a welcome move. The general time limit of 6 years are reduced to 3 years. While a 10 year limit has also been introduced, it is only restricted to certain cases of search, seizure or requisition, which generally are done in cases where there is a likelihood of a mala-fide intent of evading taxes. This is also likely to favorably impact M&A deals where negotiation of tax indemnities has been a moot point lately.
One concern which arises is the limitation period for passing an order deeming a person to be an ‘assessee in default’ under Section 201 of the ITA. Earlier, in the absence of any limitation period under Section 201 of the ITA, the ITAT, Mumbai (Special Bench) in the case of Mahindra and Mahindra Ltd.21 had held that order under Section 201 is akin to assessment and assessment includes re-assessment, so the time limits under Section 201 have to be similar to the time limits under Section 147 of the ITA, i.e. an outer limit of 6 years from the relevant AY. Following this, Section 201 of the ITA was amended to set out the outer limit for passing an order under Section 201 of ITA to be 6 years from the relevant AY. Considering that the time limit under Section 147 of the ITA formed the basis of setting the time limit under Section 201 of the ITA, a similar change should have been brought about to the time limits under Section 201 of the ITA.
Another interesting and welcome move is the removal of a special time period of 16 years applicable in case of income in relation to any asset located outside India, escaping assessment in India. Thus, cases of indirect transfers would also get covered by the reduced period of 3 years as discussed above.
Reduction of time limit for completing assessments
Vide Finance Act, 2017, the time limit for completing assessments (reckoned from the end of the relevant AY in which the income was first assessable) under Sections 143 and 144 of the ITA were reduced from 21 months to 18 months for AY 2018-19 and 12 months for AY 2019-20 onwards. Owing to the efficiency in conducting assessments brought about by the Faceless Assessment Scheme introduced in 2019, the Budget has proposed to reduce the time limit for completion of assessments to 9 months from the end of the AY in which the income was first assessable for AY 2021-22 onwards.
This is a welcome move which will likely put pressure on the tax authorities in completing assessments in a timely manner.
With a view of maximizing the use of technology to improve dispute resolution, the Government has in the recent past introduced measures such as faceless assessment scheme, faceless appeal scheme and faceless penalty scheme. Until now, the faceless mechanisms have only been introduced for the administrative levels, i.e. the AO and the Commissioner of Income Tax (Appeals).
The Budget proposes to introduce a faceless scheme for the ITAT proceedings as well. The idea is for the Central Government to notify a scheme for faceless disposal of appeals by the ITAT to impart greater efficiency, transparency and accountability by way of eliminating interface between the ITAT and the parties to the extent technologically feasible, optimizing utilization of resources through economies of scale and functional specialisation and introducing an appellate system with dynamic jurisdiction.
For the purposes of operationalizing the idea of faceless ITAT, the Central Government may amend the applicability of certain provisions under the ITA. However, no such amendments shall be made after March 31, 2023. Every such amendment shall be passed only after due deliberation by both houses of the Parliament.
Globally, dispute resolution involves much more importance being given to written submissions. In India however, it is the oral arguments which are considered to be more important. Faceless ITAT will result in more emphasis on written submissions, in line with global standards. Having said that, question arises whether oral arguments would be discretionary, or mandatory if requested by either party. This question is important from the perspective of principles of natural justice where if either party is requesting to be heard orally, such a request should be honored.
Further, the faceless appeals scheme up to the administrative levels are still under a nascent stage, the success of which is yet to determined. Just as in case of virtual hearings introduced during the pandemic, not all tax professionals are technologically equipped yet to handle faceless appeals. The same issue is likely to crop up with faceless ITAT as well. For this reason, the Government should have shown some patience in introducing the faceless ITAT, and introduced the same only after carefully studying and analyzing the success of faceless appeals at the administrative levels.
Formation of the Dispute Resolution Committee for small and medium taxpayers
In the recent past the Government has been taking steps such as faceless assessment at the administrative levels, Vivad se Vishwas Scheme (a scheme to settle pending tax disputes) etc. to streamline dispute resolution insofar as tax cases are concerned. Following the spirit of the same and with a view to reduce future disputes from fresh assessments in case of small and medium taxpayers, the Budget proposes to introduce a scheme to settle cases at the initial stages.
Under the new scheme, the Central Government shall constitute one or more Dispute Resolution Committee (s) (“DRC”), which shall resolve disputes of such persons or class or persons as may be specified by the CBDT. To have the disputes resolved by the DRC shall be at the discretion of the taxpayers. Given that the scheme is introduced only for small and medium taxpayers, it is proposed to only be applicable to those disputes where the returned income is INR 5 million (USD 68,500) or less and the aggregate amount of variation proposed in the assessment order INR 1 million (USD 13,695) or less. Further, search/ survey / reqjuisition cases would not be eligible to approach for DRC for settlement. The DRC shall have the power to reduce or waive any penalty imposable under the ITA or grant immunity from prosecution for any offence under the laws to be specified. The Central Government is empowered to bring about amendments for the operationalization of the DRC, pursuant to them being tabled before both houses of the Parliament.
The goal sought to be achieved through the DRC is commendable. One of the hallmarks of a good business environment is an effective dispute resolution mechanism. The concern however is the effective implementation of this idea. Take for example the Vivad se Vishwas scheme. While it is being branded by the Government as a success, taxpayers have faced several hurdles in availing it because of the inefficiency of the provisions, which required several rounds of amendments and FAQs to be released by the CBDT. In light of this, the expectation is that the Government takes robust measures for effective implementation of dispute resolution by the DRC, just so that the vision is not compromised in the process.
Discontinuation of the Income-tax Settlement Commission
In light of newly introduced mechanisms such as the Vivad se Vishwas Scheme and the DRC for settlement of tax cases, the Budget proposes to discontinue the age old Income-tax Settlement Commission (“ITSC”). It is proposed to constitute one or more interim boards for the settlement of pending cases.
It is also proposed to allow taxpayers to withdraw applications pending with the ITSC. In case of such withdrawal, the application shall stand abated and the AO before whom the proceeding was pending prior to the application to the ITSC shall dispose of the matter in accordance with the relevant provisions of the ITA.
The Central Government is empowered to bring about any such amendments as may be required to operationalize the discontinuation of the Settlement Commission, pursuant to them being tabled before both houses
Section 206AA and Section 206CC
Sections 206AA and 206CC of the ITA provide for higher rates of withholding tax (in the form of TDS or TCS, respectively), in instances where the person entitled to receive the sum of money fails to furnish a Permanent Account Number (“PAN”) to the person making the payment. Acknowledging how these provisions have helped to motivate tax payers to obtain a PAN, the Government now proposes to insert new Sections 206AB and 206CCA to similarly motivate tax payers to file income tax returns. Accordingly, these new provisions provide higher rates of withholding tax (in the form of TDS or TCS, respectively) in instances where the person entitled to receive the sum of money:
It is further clarified that these provisions shall not apply to
In the event that a tax payer qualifies as a Specified Person under Section 206AB, TDS is proposed to be withheld at the higher of the following rates:
Similarly, in the event that a tax payer qualifies as a Specified Person under Section 206CCA, TCS is proposed be collected at the higher of the following rates:
It is also clarified that if the provisions of both Section 206AA and 206AA or 206CC and 206CCA are applicable, then the higher rate of tax in the relevant section shall be applicable.
While the Government’s effort to incentivize filing income tax returns may be understandable, the proposed Sections 206AB and 206CCA actually place an additional burden on the person making the payment to determine whether the recipient qualifies as a Specified Person or not before determining the rate at which TDS or TCS should be applied. Moreover, the exemption for non-residents who do not have a permanent establishment in India could also result in disputes, with tax authorities arguing that the non-resident has a permanent establishment and should be subject to the higher rates of TDS / TCS. While such disputes are pending, the persons liable to withhold would be left with uncertainty with respect to the applicable rate of TDS / TCS.
Distribution of capital assets to partners on dissolution of a firm (being a general partnership or an LLP), or to members on dissolution of an AOP or a body of individuals (“BOI”), renders the firm, AOP or BOI taxable on capital gain under the present provisions in the ITA. For computing the capital gain, the FMV of the asset on the date of transfer is regarded as the ‘full value of consideration’.
The Memorandum to the Finance Bill recognises that the existing provision is ambiguous with regard to self-generated assets of the entity, and situations where assets are revalued, such that distributions to partners are in excess of their capital contributions.
The Budget proposes to replace the existing provision in its entirety, with a new code for taxation of dissolution and reconstitution of such entities. The new provisions envisage taxability in two scenarios where a partner or member receives a capital asset at the time of dissolution or reconstitution of the entity:
Where the capital asset represents the balance in the capital account of the person in the books of the entity (without considering increase due to revaluation of assets or self-generated assets):
Where the money or other asset is in excess of the balance in the capital account of the individual in the books of the entity:
Section 48 of the ITA is also proposed to be amended to provide for a step-up of amounts taxed on dissolution and reconstitution, in order to ensure there is no double taxation. However, there appears to be a discord in the text of the amendments, which can lead to potential litigation.
The very taxability of distributions by firms has been an issue subject to extensive legal debate under the existing provision as well. Courts in India have been questioning the very existence of a ‘transfer’ in case of distribution of assets on the dissolution of a firm, arguing that what occurs is at best a notional sale and not really a transfer even considering the wide definition of the term under the ITA.22 In fact, the Supreme Court specifically upheld a decision of the Gujarat High Court holding that a distribution of a share in the value of goodwill, a self-generated asset, to a retiring partner was not a ‘transfer’ within the meaning of Section 2(47) of the ITA, and hence was not subject to capital gains tax.23 The proposed amendments do not address this issue. In the same vein, while the existing Section 45(4) of the ITA applies to dissolution, the amendments seek to apply the new provisions to ‘reconstitution’ of the firms / AOP / BOI as well. This begs the same question as to what in the minds of the lawmakers is the ‘transfer’ involved in a reconstitution that amounts to a taxable event giving rise to capital gains tax incidence.
The meaning of “book profits” for purposes of computing minimum alternate tax (“MAT”) is quite complicated owing to a long list of additions and removals required to be made under the ITA. The Budget proposes to amend the MAT provisions under the ITA in the following manner:
Amendment to treat dividend income of foreign company at par with royalty and FTS
New provision to consider enhancement in book profit due to past year income
The Finance Act 2021 has introduced an amendment to Section 16 of the Integrated Goods and Services (“IGST Act”), specifically within sub-section (3) which lays down the options for a registered person making zero rated supplies, to claim credit of input tax. Previously there were two options available under Section 16(3), namely:
“A registered person making zero rated supply shall be eligible to claim refund under either of the following options, namely:––
The Finance Bill 2021, through its amendment has done away the mechanism under sub-section (b), i.e., to charge IGST on the export invoice and utilize the underlying input credit in setting off the output liability. A new sub-section (3) to Section 16 of IGST has been substituted in place of the previous dual options. The text of the same is as provided below:
“(3) A registered person making zero rated supply shall be eligible to claim refund of unutilised input tax credit on supply of goods or services or both, without payment of integrated tax, under bond or Letter of Undertaking, in accordance with the provisions of section 54 of the Central Goods and Services Tax Act or the rules made thereunder, subject to such conditions, safeguards and procedure as maybe prescribed:
Provided that the registered person making zero rated supply of goods shall, in case of non-realisation of sale proceeds, be liable to deposit the refund so received under this sub-section along with the applicable interest under section 50 of the Central Goods and Services Tax Act within thirty days after the expiry of the time limit prescribed under the Foreign Exchange Management Act, 1999 for receipt of foreign exchange remittances, in such manner as may be prescribed.”
This sub-section retains the mechanism for claiming input tax credit under the previous subsection (a), while adding the refund mechanism under Section 54 of the Central Goods and Services Act (“CGST Act”) i.e., exporting goods or services without any payment of GST, using a bond or Letter of Undertaking; and then subsequently claiming the unutilised input credit as refund under Section 54.
The proviso further lays down that if the export receipt is not realized then the refund amount has to be deposited, along with interest under Section 50 of CGST Act, within 30 days of the expiry of the time period provided under FEMA Act, 1999, for realization of such receipt (generally 9 months).
Newly introduced sub-section (4) also leaves a window open for restricting the zero-rated supply on payment of IGST, only to such class of taxpayers, or such supplies of goods / services as is notified by the Government.
Promotion of exports has been a key policy objective for the Government; and the annual budget usually contains provisions specifically geared to address it. These changes are meant to streamline and plug certain issues that arose with respect to claiming of refund of credits in export transactions. Nevertheless, with regard to continuous supply of services, specifically inter-company transactions, it may be beneficial to restructure the invoicing mechanism on monthly to an annual basis, in order to streamline the payments and the refund process, particularly considering the limitation proposed above with respect to receiving remittances within a certain period of time to be eligible for the benefit.
Secondly, the amendment to options in claiming input credit as per newly introduced sub-section (3), links the foreign exchange remittance with refund, in cases of export of goods.
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1 General Electric Pension Trust v. DIT,  280 ITR 425.
2 Union of India v. Azadi Bachao Andolan,  263 ITR 597.
3 In Re: Mohsinally Alimohammed Rafik, In re  213 ITR 317; In Re: Cyrille Eugene Pereira,  239 ITR 650; In Re: Abdul Razak Meman,  276 ITR 306; DIT v. Green Emirates Shipping,  100 ITD 203.
4 Chiron Behring GmbH & Co. v. DIT,  351 ITR 115.
6 Dhruv Sanghavi, Structural Issues in the Income Tax Treaty Network: Towards a Coherent Framework, (Ipskamp Publishing, Nijmegen, 2018), pp. 110 and 121; see also: Joanna Wheeler, The Missing Keystone of Income Tax Treaties, Doctoral Series No. 23, (IBFD: Amsterdam, 2012), p. 253.
7 Vadilal Sarabhai v. Manekji Pestonji Bharucha, (1923) 25 BomLR 414, decided in the context Indian Contract Act, 1872, before the Sale of Goods Act, 1930 was introduced
8 Karnataka Power Transmission Corporation v. Ashok Iron Works Pvt. Ltd., (2009) 3 SCC 240, decided in the context of Consumer Protection Act, 1986
9 Vikas Sales Corporation v. Commissioner of Commercial Taxes, (1996) 4 SCC 433
10 Tata Consultancy Service Ltd. v. State of Andhra Pradesh, (2004) 137 STC 620 (SC)
11 R D Goyal v. Reliance Industries Ltd., (2003) 1 SCC 81, decided in the context of Monopolies and Restrictive Trade Practices Act, 1969
12 Circular no. 17 of 2020, CBDT
13 See: CIT v. Smifs Securities,  348 ITR 302 (SC)
14 See: the sixth proviso to section 32(1), explanation 7 to section 43(1), section 49(1)(iii)(e), and explanation 2 to section 43(6).
15 See: Mylan Laboratories Ltd. v. DCIT, (2020) 180 ITD 558 (Hyd) (Trib.), and Urmin Marketing P.Ltd. (now known as Unicorn Packaging LLP v. DCIT, ITA No. 1806/Ahd/2019, for the availability of depreciation on goodwill acquired through a merger, and United Breweries Ltd. v. ACIT ( 76 taxmann.com 103), against.
16 See SREI Infrastructure Finance Ltd. v. Income Tax Settlement Commission  207 Taxman 74 (Delhi HC), CIT v. Bharat Bijlee  365 ITR 258 (Bombay HC), Areva T&D India Ltd. v. CIT  428 ITR 1 (Madras HC)
17 CIT v. Grace Collis  248 ITR 323 (SC)
18 Sections 193, 196 and 228 of the Indian Penal Code
19 As set out in Section 131 of the ITA
20 Rojer Mathew v. South Indian Bank Ltd  111 taxmann.com 208 (SC)
21  30 SOT 374 (Mumbai) (SB)
22 See Malabar Fisheries Co. v. CIT  120 ITR 49 (SC)
23 See ACIT v. Mohanbhai Pamabhai  165 ITR 166 (SC)