Comprehensive Analysis of the Income Tax Proposals of the Finance Act, 2017

When the NDA Government took power in 2014, it immediately raised hopes of a more business friendly government. Hopes of tax cuts, less governance, simplification of tax structures, unleashing the animal spirits in business. Mr. Jaitley always spoke of putting more money in the hands of the people. However, somehow in all the finance bills presented so far, there have been no out of the box ideas. There is a sense of missed opportunities.

In fact, some of the provisions have been sinister efforts of the bureaucracy to strike back and they have succeeded quite a few times so far. The thrust of direct tax proposals is to give to the tax payers but not with open hand, with half-hearted attempts. The only commendable tax rate cut is the 25% cut for Companies with annual turnover up to Rs. 50 Crores but as we say, it is somewhat half-hearted even then.

The Government has followed left of the centre economic policies which invariably see businessmen and anyone having wealth as someone who should be exploited and squeezed for more and more taxes by introducing surcharges. The serious dearth of talent in the economic and finance sphere in the Government is showing – be it lack of aggressive disinvestment and privatisation, genuine ease of doing business or tax structures.

For the convenience of readers, we have divided the article in the following – General reading, Sections for Businessmen/ Corporates, Sections for Capital Gains, Sections for Charitable Trusts/ NGOs, Sections for For Non-resident Investors and Foreign Companies/ Investors , Sections for Tax Professionals, Miscellaneous Sections

General reading -Tax rates

1. Tax slabs have been revised to as follows:

Where the total income does not exceed Rs. 2.5 lakhs	Nil
Where the total income exceeds Rs. 2,50,000 but does not exceed Rs. 5,00,000	5 per cent. of the amount by which the total income exceeds Rs. 2,50,000;
Where the total income exceeds Rs. 5,00,000 but does not exceed Rs. 10,00,000	Rs. 12,500 plus 20 per cent. of the amount by which the total income exceeds Rs. 5,00,000;
Where the total income exceeds Rs. 10,00,000	Rs. 1,12,500 plus 30 per cent. of the amount by which the total income exceeds Rs. 10,00,000.

2. The above is a substantial relief for the neo middle class. It also makes sense to retain basic exemption limit to widen the tax base. However, the reduction in tax rates is a welcome step.

3. If you are a senior citizen of the age of 60 years or more but less than 80 years of age at any time during the financial year, then the tax exemption is increased to Rs. 3 lakhs. The tax rates shall be as follows:

Where the total income does not exceed Rs. 3,00,000	Nil
Where the total income exceeds Rs. 3,00,000 but does not exceed Rs. 5,00,000	5 per cent. of the amount by which the total income exceeds Rs. 2,00,000;
Where the total income exceeds Rs. 5,00,000 but does not exceed Rs. 10,00,000	Rs. 12,500 plus 20 per cent. of the amount by which the total income exceeds Rs. 5,00,000;
Where the total income exceeds Rs. 10,00,000	Rs. 1,12,500 plus 30 per cent. of the amount by which the total income exceeds Rs. 10,00,000.

4. Further, if you are of the age of eighty years or more or attain the same during the financial year, the exemption limit goes up to Rs. 5 lakhs.

Where the total income does not exceed Rs. 5,00,000	Nil
Where the total income exceeds Rs. 5,00,000 but does not exceed Rs. 10,00,000	20 per cent. of the amount by which the total income exceeds Rs. 5,00,000;
Where the total income exceeds Rs. 10,00,000	Rs. 1,00,000 plus 30 per cent. of the amount by which the total income exceeds Rs. 10,00,000.

5. The rebate us/s 87A has now being downsized from Rs. 5000 to Rs. 2500. But that will not make a difference as the tax rate has also been halved. What will make a difference is that the Rebate u/s 87A was earlier allowed up to Rs. 5,00,000 but now it will be restricted only to those earning taxable income up to Rs. 3,50,000/-. This is a typical instance of the half-hearted approach mentioned earlier where the Government does not want to go the whole way. It is actually difficult to understand this narrow-minded approach when you are giving an entire 5% tax reduction for Companies. It only negates goodwill earned by reduction of initial tax rate from 10% to 5%.

6. Further apart from the 15% surcharge already existing for individual incomes above Rs. 1 Crore, the Budget creates an additional surcharge of 10% on tax for those earning above Rs. 50 Lakhs but up to than Rs. 1 Crore. This tendency of squeezing the already highly taxed is deplorable as it leads to resentment among tax payers.

7. The only bright spot for businessmen/ Corporates is the reduction in Corporate Tax rates from 30% to 25% for Companies with annual turnover upto Rs. 50 Crores. However this brings a peculiar situation where the tax rate for 96% of the Corporates is higher than comparable earning individuals. Mid sized companies actual consider reducing salaries paid to Promoters.

8. For Firms and LLP, rate remains same as 30%.surcharge of 10% if income exceeds Rs. 1 Crore. Plus a Surcharge of 7% if income exceeds 1 Crores and 12% if income exceeds 10 Crores. One thing to note that LLPs have not being given benefit of lower rate of taxation which is itself a peculiarity. If Govt wants to increase corporatization, then even LLP is suitable structure as it is also corporate entity. In fact, it is the most suitable corporate entity for MSMEs.

9. Section 71 – Limit on interest paid on house let out.

Big set back to investors taking huge loans to give on rent. Such loss can be now be set off only upto Rs. 2 lakhs instead of the unlimited set off they presently enjoy. This will have effect on big ticket loans. The jury is out on this. Some may argue that it was unnecessary and will affect realty. But many others will say that this reduces completely the tax incentives for unnecessary real estate purchases and may make housing affordable by reducing demand.

10. Section 80CCD. Non-salaried employees can contribute 20% of total income to New Pension System instead of 10%. Another measure to promote a pensioned society.

11. 194IB. Again a strike on high ticket housing– The Government seems to have gone after high end housing with a vengeance. Earlier TDS on rent was to be deducted only by individuals or HUF if they were in business or profession and that too if the turnover was above a certain threshold. Now TDS has been made applicable @5% on Rent payable even by those individuals who are not in business or those in business but not covered under tax audits if monthly rent is Rs. 50000 or more. This will primarily affect high salaried individuals paying rent. It is further proposed that tax shall be deducted on such income at the time of credit of rent, for the last month of the previous year or the last month of tenancy if the property is vacated during the year, as the case may be, to the account of the payee or at the time of payment thereof in cash or by issue of a cheque or draft or by any other mode, whichever is earlier. Further the normal TDS provisions of obtaining TAN is not applicable. Further provisions of 206AA (PAN not available) wherever applicable would be limited to the amount of rent paid in last month.

12. 194D. Welcome provisions for insurance agents – On self declaration by insurance agents, TDS shall be zero if the amount of such insurance commission is below Rs. 2 .5 lakhs.

13. New sections 269ST, 271D – Purported strike on black money and cash transactions. No person can receive Rs. 3 lakhs or more from any person in day or single transaction or in respect to transactions relating to one event. Adequate safeguards have been built in for exceptional situations. 100% Penalty will be on the person receiving the amount. But same can be levied only by Joint Commissioner.

For Businessmen / Corporates

1. 10AA- Units operating in SEZ

For units operating in SEZ, exemption will no longer be restriced to total income from undertaking in SEZ but total income of assessee. Beneficial Provision.

2. Section 23 – For Real Estate Developers/ Builders

Recent court decisions have held that unsold property lying with real estate developers can be taxed as House Property. This amendment seeks to bring relief to that extent if property is lying in inventory and not rented out. It’s a rational amendment.

3. Sections 35AD and 43 -Less Cash even for Capital Transactions.

Any asset for more than Rs. 10000 purchased with cash; no depreciation will be allowed as it will not be included in cost. Earlier sections like 40A dealt with revenue expenditure but there was no restriction on fixed assets being purchased with cash as depreciation or deduction under 35AD were allowances and not expenditure. This amendment along with amendment in 35AD plugs that loophole. Welcome provision. However the practicality is a bit limited as Capital assets were seldom bought in cash except for scrapped second hand machinery.

4. 40A(3) and 40A(3A) – Less Cash measure

Now the revenue expenditure has also been targeted which is much of the cash transactions occur. The threshold limit for cash expenditure has been reduced from Rs. 20000 to Rs. 10000. This is per day limit.

5. Sections 2 (42A) and 47 – Tax neutral conversion of preference shares to Equity shares

Holding period for equity shares alloted, in exchange of preference shares or units held earlier under . Also conversion of preference shares into equity shares will not be taxable. Such exemption was available earlier too for Bonds but not for preference shares. Cost of preference shares will be deemed to be now the cost of equity shares.

6. 43B and 43D: Strengthening Co-operative banks:

Step towards strengthening banks – Interest expenses payable to Co operative banks will now be allowed as deduction only on actual payment; not on mere accrual. Earlier this provision covered only scheduled banks

7. 44AA- Maintenance of books of accounts

Long awaited rise in threshold but still highly insufficient. Books of accounts shall be maintained by Individuals and HUF if the turnover is above Rs.25 Lakhs and net profit is Rs. 2.5 lakhs. Ideally this should be synchronized with Sections 44AB and 44AD.

8. Section 44AB- Limit for Tax Audit raised to Rs. 2 Crore. This should have been done previous year itself after the presumptive taxation was raised but has been done for FY 17-18.

9. Section 44AD- Presumptive taxation – For Turnover based on cheque and digital transactions – Gross Income shall be calculated @6% of the turnover. Cash transactions will still be taxed @8%. This beneficial provision is with retrospective effect from FY 16-17.

10. 80IBA- Further incentives for affordable Housing – Tax exemptions extended considerably for affordable housing projects. Size of houses changed from built up area to carpet area. This will enable more houses to come in the picture as also large houses to come under the scheme. Also the time period to construct has been extended from 3 years to 5 years. However still the question remains will this still lead to lower prices? A better strategy would have been to reward developers if housing prices would have been in a particular range or value. Something similar had been attempted in respect of cement prices or biscuit prices few years by Government.

11. Section 58- Disallowances for not deducting TDS and Equalization Ley now extended from business to income from other sources also. So if you are claiming income as other sources but not deducted TDS while making related expenses, the same can be added back to income.

12. Section 79 – Loss of set off if change in shareholding not applicable to eligible start ups if the Losses are in the first 7 years of incorporation and all the shareholders in the year of loss continue to hold at least one share even in year of change of shareholding.

13. Section 80IAC. Tax exemption for start up extended for 7 years instead from 5 years.

14. Section 115BBG- Income from transfer of Carbon Credits is taxable at lower rate of 10%. This is because of India’s massive recent push in renewable energy.

15. 194J- TDS @2% instead of 10% for operations of call centres. Question is if the business of call centres can be classified under 194J in the first place.

16. Sections 211, 234C – Professionals like advocates, doctors, CA, CS, Management Consultants etc. who declare income under presumptive scheme under 44ADA can also pay advance taxes in one outgo by March 15. Also dividends made taxable under section 115BBDA, the same shall be liable for advance tax when it actually arises.

17. Section 244A- Interest on TDS refund. Introduction of interest @1.5% on refund of TDS . Welcome measure. Will also ensure timely refunds as delay in refunds by officer will lead to loss to Revenue and hence will be questioned.

18. Section 92BA – Specified Domestic Transaction to be severely limited now only where one of the parties enjoy tax incentives. This will be big relief to all corporates and businessmen from the rigors of transfer pricing. Much welcome provision.

19. 115JAA and 115JD. – Provisions relating to Minimum Alternate Taxes (MAT)

There have been demands to abolish MAT . MAT credit now allowed to be carried forward for 15 years instead of 10. There is also another amendment which says that the excess of Foreign tax Credit over MAT, which is in excess of Foreign Tax Credit over normal income tax shall not be allowed to be carried over. However this shall lead to lot of confusion because if a person has both domestic and foreign tax credit, how to quantify if the excess is caused by Foreign Tax Credit or domestic TDS. The amendment is confusion oriented and was not necessary at all. Similar provisions have been made for Alternate Minimum Taxes paid by LLP.

20. Thin Capitalization norms:

This is a Global mechanism in transfer pricing for tax avoidance. Many a times, Firms/Companies have practices where they introduce significantly high levels of debt and extremely low levels of capital in order to claim interest deduction which helps to reduce taxable profits. This is sought to be targeted by this amendment. So it provides that where the interest outgo to Non resident Associated Enterprises is more than Rs. 1 Crore, then the same will not be allowed if the same is more than 30% of EBITDA. However this disallowed interest shall be allowed to be carried forward and used for the next 8 years. Further, the debt shall be deemed to be treated as issued by an associated enterprise where it provides an implicit or explicit guarantee to the lender or deposits a corresponding and matching amount of funds with the lender. This is considerable widening of the scope of this amendment. Bank and insurance companies have been kept out of this amendment for obvious reasons.

Capital Gains

1. Section 2 and 55. Capital Gains for immovable property,

Now Long Term Capital Gains will kick in after 2 years instead of 3 years. Will give small boost to real estate industry as benefits of indexation plus the lower tax rates plus the option of availing tax exemptions shall be available. Even Base date of indexation changed from 1981 to 2001. It will be welcome for those who purchased properties before 2001.

2. Section 54EC– Option for Capital Gain Tax Saving bonds shall be widened by Govt by introducing other bonds. Basically this transfers powers from Legislative and gives Government Executive Freedom to decide which bonds to offer

3. Section 50CA – Fair Value determination for shares of unlisted Companies: New section which shall prescribe fair value calculation for shares of unlisted Companies and if the transfer price is lesser than that, then such computed fair value shall prevail.

However, unlike similar provisions for immovable property, there does not seem to be any safeguards like appeal in case of disagreement. Such lack of safeguard leaves more powers in the hands of taxman. It may be necessary to check abuse but such automatic and compulsory application may not be desirable. The Honourable Supreme Court had said in the Balco Disinvestment case that that the value of any thing is value offered by the highest bidder. Undue intervention by Government officers in each case may only impede ease of doing business.

4. Section 10(38) -Anti abuse measure.

There has been large scale reports of misuse of penny stocks by people who wanted to convert black money to white. Such penny stocks would be purchased from brokers and sold after 1 year when the entire gains would be tax exempt under LTCG after the brokers would have manipulated the prices to record highs. This practice has been sought to be curbed by making tax exemption only if the purchase would also be from the open market. However Government will make safeguards for IPO, Bonus, Rights issue etc. which are genuine but where the acquisition of shares also do not attract STT.

5. 10 (37A) Exemption for land pooling and transfer done for transfer of land under Land Pooling Scheme made under the Andhra Pradesh Capital City Land Pooling Scheme Rules, 2015.

Land held as on 2-6-2014 transferred to Government is considered exempt. Also, sale of Ownership certificates received or reconstituted land or plot received in lieu of original plot transferred to Govt , if transferred within 2 years of end of FY in which plot or land was recd. Transfer within 2 years is a bit peculiar. one would have hoped that the govt would have restrained them to hold for more than 2 years. This actually means that the people receiving the reconstituted plot or land would have to compulsorily sell within 2 years to get the benefit of an exemption. I hope this is not error in drafting. When the asset is transferred after 2 years, the stamp duty value as on the last day of second financial year after the end of financial year in which possession was received.

6. 45, 49 and 194 IC – Joint Development or Redevelopment agreements

With redevelopment being commonly executed now, the position on taxation is still uncertain- year of taxation, quantum of taxation, taxation in hands of society or members etc.? The position on taxation is now sought to be settled via this amendment. It now proposes that the capital gains will be taxable in the year of completion of the project. And the consideration will be the stamp duty value of the redeveloped land or building. However, if he receives some other consideration before the completion of the project, that consideration will be taxable in the year of receipt. Further the stamp duty value will be adopted as the purchase price for the redeveloped property. Any monetary gains received under the agreement shall suffer TDS @ 10%. However certain issues arise. Suppose if under agreement, the builder gives the owner of flat an option of buyout, will that be covered under Section 194- IC. If yes, then its harsh since otherwise the TDS rate for immovable properties is just 1 %. Plus, what about corpus part paid to societies by developers? Will that be taxed @ 10%?

Trust – NGOs

1. Section 10(23C) – Attempt to plug loophole. Corpus donations made by educational trusts or funds or institutions to Entities registered under Section 12AA shall not be considered as application of income and will be taxable. The issue is that this may affect genuine corpus donations also and will affect asset building capacity of the Charitable trusts registered under 12AA.

2. 12AA (ab) -If change in objects of institution already registered under 12AA, THEN application to Directorate Exemption within 30 days of change is required otherwise the income shall be taxable. Further, the income shall be tax exempt only if the return has been filed on time. This is a major change and will require most 12AA organisations to be tax exempt.

3. Section 133A – Power to search and seizure extended to not only places of business but also charitable institutions.

4. Section 80G (5D) – Cash Donation to any eligible charitable trust or institution not more than Rs. 2000.

For Non Resident Investors – Foreign Investors

1. Section 9- Explanation 5 in Section 9(1) which was mainly for deterring Vodafone type transactions to avoid taxes by transferring shares outside India but with assets underlying in India will not apply to investments made in FII. Welcome provision.

2. Section 9A – Section 9A was mainly to allay concerns of fund managers who had fears of being considered resident because of the establishment of business connections. One of the conditions was that the monthly average corpus should not be less than Rs. 100 crores. This condition is not made applicable in year in which fund is wound up. It is a rational clause. Amendment retrospective from FY 15-16.

3. Section 10(48A) -Basically relating to Strategic Oil Reserves. Generally, income of foreign company from operation of such storage Oil Reserve , sale of fuel from such strategic oil reserve is exempt if covered under an agreement. Now exemption also given to leftover fuel sale after an agreement is complete.

4. Section 194LC, 194 LD – Lower rate of TDS @ 5% for loans or long term infra bonds for moneys taken from Non-Residents by Indian Companies or Business Trusts extended from 2017 to 2020. Further the same has been extended wef 1-4-2016 to rupee denominated bonds also. The same facility has also been extended to moneys invested by FII/ QFI in rupee bonds or government securities.

5. Section 47. Transfer of Rupee denominated bonds issued by Indian Company but issued outside India from one Non-Resident to another Non-Resident is made tax free.

6. Section 92CE – Secondary adjustment- This will cause much heartburn to Indian Corporates. Secondary adjustment in Transfer Pricing has been initiated where the cases have attained finality and the quantum of adjustment is Rs. 1 crore or more. The books of accounts will have to reflect the quantum of adjustment made in Transfer Pricing and in case, the profits of the Indian concern has increased or the losses have reduced, then money to that extent shall be brought by the Non-Resident Associated Person to the Indian Concern. In case, such money is not brought in, the same shall be treated as advance and deemed interest and taxes on such deemed interest shall follow.

Tax Professionals

1. Provisional attachment- Section 132 (9B)

Provisional attachment of property- pending investigations, property may be attached during search or seizure or within 60 days of previous raid, with written approval of Principal Director General or Director General or Principal Director or Director. This provisional attachment shall be valid for 6 months. Officer may also order Fair Valuation of the attached property.

2. Section 153 (1), 153B: Time period of assessment

Time period of assessment reduced from 21 months to 18 months from FY 17-18 and 12 months from FY 18-19. However, the time period of assessment for re-assessment is increased from 9 months to 12 months for any notice issued after April 1, 2019. Further, the time limit for completing assessments or reassessments in the case of search or seizure has been reduced from 21 months to 18 months from end of financial year in which last of raids was carried out where such last raid was carried out in FY 18-19. and For FY 19-20, the limit has been further reduced to 12 months.

3. 197 (c ), 153A and 153C – Years for which assessment can be taken up/ reopened

At the time of Income Disclosure Scheme (IDS), section 197 (c ) was introduced which indirectly empowered the income tax officer to bring to task income of any year going back to 1961 whereas the earlier time limit was for 6 years. The dangers of this section have now being recognised and hence it is being repealed. However, the time limit of 6 years is now being raised to 10 years on the fulfilment of certain conditions like possession of evidence by the officer, total tax evasion of Rs. 50 lakhs etc.

4. 241A- Office can withhold Refund if scrutiny notice has been given and approval of CIT has been taken. Measure to protect Revenue.

5. 271J- In line with other laws like Companies Act, 2013 – accountability introduced for professionals signing or certifying forms. The Penalty of Rs. 10000 for CA or Valuer or Merchant Banker for furnishing inaccurate information or report or certificate. But the same is not automatic but will be levied after giving reasonable opportunity.

6. 234F – Late fee for filing of return introduced. If income does not exceed Rs. 5 lakhs, Fee of Rs. 1000 applies. Else Fee of Rs. 5000 if the return is filed on or before 31 December and Rs. 10000 if filed later. There should have been the limitation of fees payable not exceeding taxes payable else this will be highly counter-productive to the focus of asking people to file returns.

Miscelleneous

1. Section 10(4) – Section 10 (4). Wrong reference to FEMA Act now rectified

2. Section 10 (23C) – 10(23C). CM relief Fund and Lt Governor Relief Fund Act included

3. Section 13A – Major political reforms.

Instead of Rs. 20,000, basically cash limit has been reduced to Rs. 2000. However, wording leaves a bit to be desired. It mentions A/C Payee Cheques, drafts or use of ECS like NEFT. No mention of other digital payments like card payments or e-wallets. However the same should be accepted as it is in the same spirit. One more condition for political parties to get exemptions is to file income tax returns compulsorily on time.

4. Section 36 (1) (viia) -Banks allowed NPA Provision for 8.5% instead of existing 7.5%. To give relief to banks who are experiencing massive NPA but not getting deduction under income tax act.

5. Section 115BBDA – Scope of taxable dividend widened. Now dividends received in excess of Rs. 10 lakhs earlier taxed only in hands of individuals will now be taxed in hands of all assesses except where the recipient is Domestic Company, Specified Trusts or institutions under Section 10 (23C) and entities enjoying exemption under 12AA. Private Trusts holding large holdings in Companies will be affected.

6. Section 194LA – Normally 1% TDS for immovable properties. However, any property acquired the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 popularly known as the Land Bill Act will not suffer any TDS as per Section 96. This is basically for government agencies as Section 96 precludes private parties bargaining.

7. Sections 206C, 206CC – Tac Collection at Source provisions – Strengthening of PAN provisions: Tax Collection at source provisions- After the new law for Rs. 3 lakhs cash transaction came into the picture, the law brought last year for 1 % TCS on sale of jewellery has now being removed. Further certain provisions have been introduced for compulsory obtaining of PAN for TCS transactions. In absence of PAN, TCS rate shall be double of the specified rate for each item or 5% , whichever is higher.

8. 132 and 132A – This is a very disturbing amendment. Big blow to transparency in tax administration. It will lead to arbitrariness and also hence corruption. It provides that reasons why the search and seizure need not be communicated to anyone including the tax payer or even the Income Tax Tribunal. The only recourse left is to have a writ petition filed in the Honourable High Court. There are chances that if this amendment is challenged in the Courts, it may be held as unconstitutional and may be struck down.

9. Section 56: Simplification and expansion of provisions of gifts or properties received without consideration or inadequate consideration. Earlier issue of Companies issuing shares have also been attempted to be included in it. However, in this provision, all movable and immovable properties have been included.

10. Beneficial provision to Tax Payer- If foreign tax credit was denied as it was in dispute, then it will be allowed once the dispute is resolved if application made to officer within end of 6 months from the dispute is settled.

11. Section 204- Person responsible for depositing TDS to Government. Present definition mostly is relatable to a situation where TDS has been deducted. This has now been extended even to those cases where the payment made to non resident is claimed as non-taxable under 195 (6). This will caution the Indian remittors to be very careful while remitting money overseas as they may be held liable and money may be made recoverable from them.

12. Merger of Authority for Advance Rulings for income tax, service tax, customs and central excise to be considered for ease of business. Further appointment norms have been liberalised to fill up vacancies.

If you have any doubts or questions regarding the income tax proposals, do email us at [email protected]

Disclaimer: While all due care has been taken while preparing this note, errors which may have crept can be entirely attribute to human limitations. Readers are advised to consult their tax consultants and professionals before acting on any transaction and the Author cannot be held responsible for any consequence.