The Union Budget 2023 is being presented in the midst of an uncertain and slowing global economy with India emerging as the fastest growing large economy and the “bright spot”. The geo-political developments and dynamic leadership in India has made India the most preferred global investment destination. The corporate tax collections have increased dramatically despite lowering of corporate tax rates. In this backdrop, it is expected that the Union Budget will fully leverage this unprecedented opportunity for India by measures which would boost growth, employment and new investment.
Section 115BAB of the IT Act has offered concessional rate of tax to domestic manufacturing companies so as to boost the economic and manufacturing activities in India. However, the present tax laws do not offer any concessional tax regime for the services sector despite high employment propensity. Also, the prevailing tax holiday u/s 10AA has also expired for units in Special Economic Zones
Hence, it is expected that newconcessionaltax regime @ 20% (plus surcharge and cess) should be provided to the service sector.
Under section 80JJAA of the IT Act, assessees can claim a deduction of 30% of employee cost incurred on hiring new employees for 3 assessment years, provided the conditions mentioned therein are satisfied. One of the prescribed conditions is that the total emoluments paid to new employees are upto Rs. 25,000 per month. Such limit has not been revised since its introduction in Finance Act 2016.
Given our large workforce and need for massive employment generation, it is necessary to incentivize businesses that generate employment for the lower and mid-level wage and salary levels. It is also widely known that increased employment has a multiplier effect on the economic growth.
Considering the above and the inflation in the last 7 years, it would be a great initiative to increase threshold limit of emoluments from the present Rs.25,000 per month to Rs. 50,000 per month for the purpose of deduction under section 80JJAA.
Under the existing provisions of the Income Tax Act, 1961 (‘IT’ Act’), Explanation 2 to section 37(1) explicitly disallows expenditures incurred by an companies on activities relating to corporate social responsibility (CSR) as referred to in section 135 of the Companies Act 2013.The company law regulations impose statutory obligation on certain companies (such as companies having average annual profits of Rs. 5 crores) to spend at least2% of the average net profits of company made during the 3 immediately preceding financial years in India on CSR activities.This provision has gone a long way in improving the socio-economic situation and upliftment of the lower strata of the society and is a statutory obligation.
In view of the above, there is an expectation that CSR expenses should be allowed as tax deduction and for this purpose, omit Explanation 2 to section 37(1) of the IT Act.
In the existing Indian tax laws, there are several provisions which charge tax on the notional income which result in undue hardship and are against the concept of taxation of “real income”. Some of them are detailed below:
As per the said section, if a person receivesany movable property without consideration or for inadequate consideration, and the difference between the fair market value (FMV) and actual consideration exceeds Rs. 50,000, such difference would be taxable as gift in the hands of the recipient.This includes the receipt of shares at a price below the adjusted book value of the shares of a company. It is well known that the market value of the shares can be below book value particularly in case the industry or company outlook is not encouraging. The objective of this provision was to avoid tax avoidance but this has hampered many genuine business transactions.
Section 23(5) of the IT Act:
Section 23(5) of the IT Act charges Notional Rent in the hands of the assessee holding Immovable property as stock-in-trade after the expiry of 2 years from the end of the financial year in which the construction was completed. Such unsold inventory could be due to certain inevitable reasons such as market conditions or the stamp duty valuation being higher than the prevailing market price.
Although such provisions are meant to be anti-abuse,several genuine business transactions are impacted adversely.Hence, in such cases, the provisions should be invoked only where the assessee is unable to establish the genuineness of the transactions.
Currently, the provisions of the IT Act do not provide any clarity regarding carry forward of Minimum Alternate Tax (MAT) credit of a predecessor company by a successor company on account of amalgamation, demerger or any other form of reorganization. Many judicial authoritieshave ruled that such carry forward of MAT is permitted, but the samestill remainscontroversial in the absence of any specific clarification.
Therefore, it is expected that the amendments to the provisions of the IT Act shall be made so as to enable the successors to carry forward MAT Credit of the predecessor company in case of eligible mergers, demergers and eligible forms of re-organizations.
As per the provisions of section 194LC of the IT Act, a specified company or a business trust while making payment for any specified interest income payable to a non-resident assessee deduct the TDS thereon at the rate of 5%.Such Concessional rate of tax of 5% is available for borrowings made in foreign currency under ECB route only and does not extend to Rupee denominated ECBs.
Considering the liberalized ECB framework for INR denominated ECBsand the volatile foreign exchange rates, it is recommended that the Central Government must take a step forward to make Rupee Denominated ECBs more lucrative by extending the benefit of concessional tax rate of 5% on interest under section 194LC to them.
The Finance Act 2022 amended Explanations 3C, 3CA and 3D of section 43B of the IT Act wherein it disallowed interest which is payable on loan or borrowing from specified financial institution/ NBFC/ scheduled bank or a cooperative bank even in cases where such interest is converted to a debenture or any other instrument by which the liability to pay is deferred to a future date.
The said amendment inadvertently affects the debt-ridden companies that enter into arrangement with financial institutions for recasting their loan or outstanding interest into convertible, non-convertible debentures or at time equity instruments, etc. This covers genuine and bona fide transactions and may result in a situation where the deduction for interest on original loan converted into debenture may never get allowed in perpetuity.
Hence, in order to provide relief to the assessees from this genuine hardship, it is sought that the aforementioned amendments must be reconsidered along with providing for a suitable exception for conversion effected under the Corporate Insolvency Resolution Process [‘CIRP’] under the Insolvency and Bankruptcy Code (IBC), 2016.
In accordance with Rule 37BB of the IT Rules, every person before making any payment to a Non-Resident is required to furnish information in Form 15CA as well as obtain a CA certificate in Form 15CB to its Authorized Dealer Bank (AD Bank). Such forms must be uploaded on the e-filling portal for each of the Non-resident.
In case of remittance of dividends, this can practically be very tedious and at times impossible for large entities with thousands of foreign shareholders considering the quantum of time available. Form 15CA is merely a declaration of appropriate collection of TDS and is used as an information collecting tool.Thus, as long as the company deducts and deposits TDS at the time of payment of dividend to non-resident shareholders, again collecting the said information through Form 15CA which is already obtained by Income Tax authorities through TDS returns, merely adds compliance burden for the Indian remitter.
Hence, in our view, the Income Tax Authorities must set a threshold limit (say Rs. 50,000) in case of remittance of dividend and mandate furnishing of Form 15CA /Form 15CB only if the said payment exceeds the prescribed threshold limit to reduce the compliance burden.
Dr. Suresh Surana
Founder – RSM India
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