Advocate Shashi Ashok Bekal has conducted a systematic analysis of the numerous important amendments ushered in by the Finance Act 2020. He has explained in a comprehensive manner the current law, the proposed law, the amendment to the proposed law, and its implications on tax payers and tax man
The Finance Bill, 2020 (2020) 420 ITR 115 (st) (146) has been passed by the Parliament with around 50 plus amendments but without any discussion on March 23,2020. This article aims at a deep dive to understand these amendments as it stands in the Finance Act, 2020; it would be imperative to understand the current law, the proposed law, the amendment to the proposed law, and its implications on the tax payers and tax man. Accordingly, each key amendment will be dealt in the above-mentioned sequence.
II. Table of Key Amendments
1. One-time option in new concessional tax regime for individuals and HUFs
2. Residency provisions for Individuals
3. Exemption to certain corpus donation under section 11 of the Act
4. Exemption of income of sovereign wealth funds
5. Clarification on exemption of dividends received during transitional period
6. Taxability of dividend income in the hands of unit holders of Real Estate Investment Trust (REIT)/Infrastructure Investment Trust (Invit)
7. Benefit of inter-corporate dividend deduction
8. Lower rate of TDS for Royalty for sale, distribution or exhibition of cinematographic films
9. Non-applicability of withholding on redemption/ repurchase made by mutual funds to unit holders
10. Withholding on Cash withdrawals
11. Withholding on e-commerce operators
12. Withholding rate on dividend received by Non-resident Individuals and foreign companies
13. Relaxation for Tax Collected at Source (TCS) on Liberalized Remittance Scheme(LRS) remittances and import and export of goods
14. Equalisation Levy on e-commerce transactions
The key amendments as abovementioned are discussed as under:
1. One-time option in new concessional tax regime for individuals and HUFs [S. 115BAC of the Act]
1.1. The existing law: As per the existing law, there was only one tax regime for individuals and HUF. According to the same, the tax payer was allowed deductions under chapter VI A on their ‘Gross total income’ before arriving at ‘Total Income’. Subsequently, tax payable was computed basis 3 slabs of tax rates i.e. 5 per cent, 20 per cent and 30 per cent excluding cess and surcharge.
1.2. The proposed law: As per the Finance Bill, 2020 introduced on February 1, 2020, provided an option under section 115BAC of the Income tax Act, 1961 (Act) to avail a concessional slab rates by forgoing certain exemptions & deductions and satisfying certain conditions. The option to opt for or out of the new regime could only be exercised once for tax payers earning business income.
Further, individuals & HUF who do not have any business income could opt for the concessional tax regime on a year on year basis.
1.3. The amendment: The restriction onopting the concessional tax regime on a year to year basis has been extended to professionals as well.
1.4. Implication of the amendment: For the financial year 2020-21 i.e. Assessment year 2021-22, Individuals & HUF having professional income will have to choose from opting for or out of the concessional tax regime. The exercised option will be irrevocable.
2. Residency provisions for Individuals [S. 6 of the Act]
2.1. The existing law: Clause (b) of Explanation 1 to Section 6(1) of the Act provided that an Indian citizen or a person of Indian origin shall be Indian resident if he is in India for 182 days instead of 60 days in that year. This provision provides relaxation to an Indian citizen or a person of Indian origin allowing them to visit India for longer duration without becoming resident of India.
Further, the issue of stateless persons was in existence & botheration. It was possible for an individual to arrange his affairs in such a fashion that he is not liable to tax in any country or jurisdiction during a year. This arrangement was typically employed by high net worth individuals (HNWI) to avoid paying taxes to any country/ jurisdiction on income they earn.
2.2. The proposed law: The Finance Bill, 2020 proposed to that the exception provided in clause (b) of Explanation 1 of sub-section (1) to section 6 for visiting India in that year be decreased to 120 days from existing 182 days.
Further, an individual or an HUF shall be said to be “not ordinarily resident” in India in a previous year, if the individual or the manager of the HUF has been a non-resident in India in seven out of ten previous years preceding that year. This new condition would replace the existing conditions in clauses (a) and (b) of sub-section (6) of section 6.
Further, an Indian citizen who is not liable to tax in any other country or territory shall be deemed to be resident in India.
2.3. The amendment: The provision has been made applicable only to Indian Citizens and Person of Indian Origin visiting India whose total income exceeds Rs. 15 Lakh (1.5 million Rupees).
Further, an Individual or HUF becoming a Resident by virtue of the proposed law would be treated as a ‘Resident but not Ordinary Resident’.
Further, for the purpose of computing the total income of Rs. 15 Lakh, ‘income from foreign sources’ has been excluded. The term ‘income from foreign sources’ has been explained to mean as income which accrues or arises outside India, exceptincome derived from business controlled in India or profession set up inIndia.
2.4. Implication of the amendment: To further align the proposed law with the intention of the legislature to tackle the issue of High Net Worth Individuals who fashionably arrange their stay in India so as to escape the tax nets and not to other tax payers to whom the erstwhile law provided relaxation to.
3. Exemption to certain corpus donation under section 11 of the Act [S. 11 of the Act]
3.1. The existing law: Currently, any donation made by a Charitable trust or institution to a similar entity out of its current years income with a specific direction that the same would form the corpus of the other similar entity was not treated as application of income in the hands of the donor, thereby not applicable to exemption.
3.2. The proposed law: The law was amended to introduce Explanation to section 10(23C) of the Act that any contribution received by specified institution being university, educational institution, hospital, other medical institution, with specific direction that they shall form part of corpus of fund, trust, etc shall not be included in the income of such institution.
3.3. The amendment: Similarly, clarifications have been added Explanation 2 to section 11(1) of the Act so as to extend the benefits provided to tax payers referred under section 10(23C) of the Act.
3.4. Implication of the amendment: Principles of parity has been applied between a tax payer registered under section 10(23) and section 12AA of the Act.
4. Exemption of income of sovereign wealth funds [S. 10 of the Act]
4.1. The existing law: This provision does not exist in the existing law and is newly introduced vide Finance Bill, 2020.
4.2. The proposed law: Exemption is provided vide section 10 of the Act for income from sovereign wealth fund subject to the satisfaction of the conditions prescribed.
4.3. The amendment: The scope of the exemption has been widened to include a notified foreign pension fund, Invit, Alternate Investment Fund (AIF) subject to certain conditions.
Further, it will cover investments made between April 1, 2020 and March 31, 2024 and thus, will not cover investments already made prior to April 1, 2020.
Further, The Central Board of Direct taxes (CBDT) is empowered to make guidelines for the purpose of the exemption.
4.4. Implication of the amendment: The same has been introduced with a view to increase investment in Infrastructure.
5. Clarification on exemption of dividends received during transitional period
5.1. The existing law: (Note which section) As per the existing law, Dividend was exempted in the hands of the shareholder and the company issuing dividend was supposed to pay dividend distribution tax (DDT).
5.2. The proposed law: It was proposed to withdraw the exemption in the hands of the shareholder thereby scrapping the provisions of DDT. Thus, making dividend taxable only in the hands of the shareholder.
5.3. The amendment: The amendment clarified that there will be no tax liability in the hands of the shareholder even after March 31, 2020, in the event the Company has already been DDT.
5.4. Implication of the amendment: The amendment has provided a much-needed clarification where dividend is declared/ DDT has been paid by the domestic company on or before March 31, 2020 but received by the shareholder on or after April 1, 2020. There will be no incidence of double taxation.
6. Taxability of dividend income in the hands of unit holders of REIT and Invit [S. 10(23FD) of the Act]
6.1. The existing law: Dividend was not taxable in the hands of the shareholders & unit holders.
6.2. The proposed law: To amend clause (23FD) of section 10 of the Act to exclude dividend income received by a unit holder from business trust from the exemption so that the dividend income is taxable in the hand of unit holder of the business trust.
6.3. The amendment: Section 10(23FC)(b) of the Act is amended to make dividend taxable in the hands of the unit holder where the company declaring the dividend has not opted for the beneficial corporate tax rate under section 115BAA of the Act.
Accordingly, exemption is provided under section 194LBA of the Act, on dividend paid by such Business Trust to its unit holders, received by it from such a company.
6.4. Implication of the amendment: This has removed the incidence of any duplicated taxation, once in the hands of the SPV held by the business trust and again in the hands of the unit holder.
7. Benefit of inter-corporate dividend deduction [S. 80M of the Act]
7.1. The existing law: This provision does not exist in the existing law and is newly introduced vide Finance Bill, 2020.
7.2. The proposed law: It was proposed to insert new section 80M of the Act as it existed before it removal by the Finance Act, 2003 to remove the cascading affect, with a change that set off will be allowed only for dividend distributed by the company one month prior to the due date of filing of return, in place of due date of filing return earlier.
7.3. The amendment: The scope of section 80M of the Act is extended to Foreign Companies and Business Trusts.
7.4. Implication of the amendment: This removes the possibility of double taxation where a domestic company receives dividend from a foreign company or business trust which is further paid to its shareholders.
8. Lower rate of TDS for Royalty for sale, distribution or exhibition of cinematographic films [S. 194J of the Act]
8.1. The existing law: In case of payment of royalty for sale, distribution or exhibition of cinematographic films, TDS was applicable at the rate of 10 per cent under section 194J of the Act.
8.2. The proposed law: On account of large number of litigations on the issue of short deduction of tax treating assessee in default where the assessee deducts tax under section 194C, while the tax officers claim that tax should have been deducted under section 194J of the Act, the Finance Bill, 2020 proposed to reduce the rate of TDS for ‘Fee from technical services’ from 10 percent to 2 per cent.
8.3. The amendment: The amendment extends the reduced TDS rate of 2 per cent where payment is made in the nature of royalty for sale, distribution or exhibition of cinematographic films (other than professional fees).
8.4. Implication of the amendment: This amendment brings the withholding rate for payment in the nature of ‘Royalty’ at par with the proposed withholding rate for payment in the nature of ‘Fee for technical services’.
This amendment is on account of representations from the film industry. This will reduce the burden of TDS for the sector and aid a better position in their cash flows.
9. Non-applicability of withholding on redemption/ repurchase made by mutual funds to unit holders [S. 10(23D) of the Act]
9.1. The existing law: Dividend was not taxable in the hands of the shareholders & unit holders.
9.2. The proposed law: It was proposed to insert a new section 194K to provide that any person responsible for paying to a resident any income in respect of units of a Mutual Fund specified under clause (23D) of section 10 of the Act or units from the administrator of the specified undertaking or units from the specified company shall at the time of credit of such income to the account of the payee or at the time of payment thereof by any mode, whichever is earlier, deduct income-tax there on at the rate of ten per cent. It may also be provided for threshold limit of Rs 5,000/- so that income below this amount does not suffer tax deduction.
9.3. The amendment: The amendment clarifies that section 194K of the Act shall not apply if the income is in nature of capital gains arising on sale of units of Mutual Fund units specified under section 10(23D) of the Act or units from the administrative of the specified undertaking or units from specified company.
9.4. Implication of the amendment: Although this amendment has provided a much-needed clarification on non-applicability of TDS on payment in the nature of capital gain, it raises concerns where the units are held as stock in trade for the purpose of business income.
10. Withholding on Cash withdrawals [S. 194N of the Act]
10.1. The existing law: Section 194N of the Act was inserted vide Finance Act, 2019 for withholding of tax at the rate of 2 per cent on cash payments in excess of Rs. 1 Crore (10 Million Rupees) made during the year by a banking company/ co-operative bank/ post office to a person from one or more accounts maintained with it by the recipient.
10.2. The proposed law: There was no law proposed by the Finance Act, 2020.
10.3. The amendment: It has been clarified that the withholding tax shall apply on entire payments made during the year.
Further, an amendment has been made to provide for a higher rate of withholding on a payment made to a person who hasn’t filed return of income for immediately three preceding Assessment years relevant to previous year and time limit for filing return of income under section 139(1) of the Act has expired. In such a situation this provision will be triggered on payment more than Rs. 20 lakhs (2 Million Rupees); and when the payment is more than Rs. 1 Crore (10 Million Rupees) it will attract withholding at 5 per cent instead of 2 per cent on amount exceeding Rs. 20 lakhs (2 Million Rupees).
10.4. Implication of the amendment: The amendment provides a much-needed clarification with respect to the deduction and also penalises non-return filers with a higher rate. Further, the Central Government is empowered to notify non-filers to whom such provision shall not apply.
11. Withholding on e-commerce operators [S. 194-O of the Act]
11.1. The existing law: Section 194-O of the Act is a newly inserted provision vide the Finance Act, 2020.
11.2. The proposed law: The newly inserted section requires withholding at the rate of 1 per cent on ecommerce transactions, by e-commerce operator on value of sale of goods or provision of service facilitated by it through its digital or electronic facility or platform at the time of credit of amount of sale or service or both to the account of e-commerce participant or at the time of payment thereof to such participant by any mode, whichever is earlier.
11.3. The amendment: The applicability of the proposed law has been under section 194-O of the Act has been deferred from April 1, 2020 to October 1, 2020.
Further, the definition of ‘e-commerce operator’ has been amended to remove the words “and is responsible to paying e-commerce participator” and to limit the definition “to a person who owns, operates or manages digital or electronic facility or platform for electronic commerce.”
Further, the amendment has inserted subsection 6 to clarify that “e-commerce operator shall be deemed to be person responsible for paying to e-commerce participant”.
Further, the Central Government has been empowered to issue guidelines for the purpose for the purpose of removing any difficulties in the implementation of the section.
11.4. Implication of the amendment: The amendment is creating a deeming fiction in the definition of ‘e-commerce operator’. This would extend the definition to transactions where the e-commerce operator merely facilitates the transaction and is not involved in the process of collection.
12. Withholding rate on dividend received by Non-resident Individuals and foreign companies [First Schedule to the Act]
12.1. The existing law: Dividend was not taxable in the hands of the shareholders & unit holders. For a Non-resident recipient, the withholding rate is 20 per cent or rate specified in the treaty, whichever is beneficial.
12.2. The proposed law: The Finance Act, 2020 proposed to remove DDT and make dividends taxable in the hands of the shareholder/unit holder.
However, on account of no rate being provided in the First Schedule to the Finance Bill, 2020 it would be implied that the rate of withholding would be at the residual higher rate of 30 per cent or 40 per cent (plus applicable surcharge and cess) as applicable to any other income payable to such non-residents.
12.3. The amendment: The amendment clarifies that, the rate of withholding at 20 per cent.
12.4. Implication of the amendment: The amendment brings in the much-required clarification with regard to the rate of withholding.
13. Relaxation for TCS on LRS remittances and import and export of goods [S. 206C of the Act]
13.1. The existing law: The widening of the scope of section 206C of the Act was newly introduced vide Finance Bill, 2020.
13.2. The proposed law: It was proposed that A seller of goods is liable to collect TCS at the rate of 0.1 per cent on consideration received from a buyer in a previous year in excess of fifty lakh rupees. In non-PAN/ Aadhaar cases the rate shall be one per cent.
Further, only those sellers whose total sales, gross receipts or turnover from the business carried on by it exceed ten crore rupees (100 Million Rupees) during the financial year immediately preceding the financial year, shall be liable to collect such TCS.
13.3. The amendment: The definition of buyer has been amended to exclude export of goods and import of goods.
Further, the applicability of the provision has been deferred from April 1, 2020 to October 1, 2020.
13.4. Implication of the amendment: This is a much-needed clarification as the intent is not to tax overseas buyers of Indian goods. Since these entities are based abroad, they do not have any tax liability in India and the intention is not to bring them under the tax net.
14. Equalisation Levy on e-commerce transactions [Chapter VII of the Finance Act, 2016]
14.1. The existing law: Currently, Equalisation Levy is charged on payment to Non-resident having no Permanent Establishment (PE) in India for online advertisement services.
14.2. The proposed law: There was no change in law proposed vide the Finance Bill, 2020. However, it was proposed to amend the source rule as per the discussion going on in international forum, countries generally agree that income from advertisement that targets Indian customers or income from sale of data collected from India or income from sale of goods and services using such data collected from India, needs to be accounted for in Indian revenue
14.3. The amendment: The amendment has enlarged the scope of Equalisation levy to e-commerce supply or services provided by Non-resident operators who owns, operates or manages a digital or electronic facility or platform for online sale of goods or services or both.
Further, “e-commerce supply or services” has been defined to mean-
(i) online sale of goods owned by the e-commerce operator; or
(ii) online provision of services provided by the e-commerce operator; or
(iii) online sale of goods or provision of services or both, facilitated by the e-commerce operator; or
(iv) any combination of activities listed in clause (i), (ii) or (iii)’;
Further, section 165A to the Finance Act, 2016 is introduce, to explain the applicability and non-applicability of this levy:
As per section 165A of the Finance Act, 2016 equalisation levy shall at the rate of two per cent, of the amount of consideration received or receivable by an e-commerce operator from e-commerce supply or services made or provided or facilitated, by supply it–
(i) to a person resident in India; or
(ii) to a non-resident in the specified circumstances; or
(iii) to a person who buys such goods or services or both using internet protocol address located in India
Further, Equalisation levy shall not be charged-
(i) where the e-commerce operator making or providing or facilitating e-commerce supply or services has a permanent establishment in India and Such e-commerce supply or services is effectively connected with such permanent establishment;
(ii) where the equalisation levy is leviable under section 165 i.e. Online advertisement; or
(iii) sales, turnover or gross receipts, as the case may be, of the e-commerce operator from the e-commerce supply or made or provided or facilitated is less than two crore rupees during the previous year.
Further, due date has been specified under section 166A of the Finance Act, 2016 for every e-commerce operator to the credit of the Central Government for the quarter the Equalisation Levy liability as per section 165A of the Finance Act, 2016.
Date of ending of the quarter of financial year
Due date of the financial year
Further, penalty for non-compliance for the above has also been provided under section 170 of the Finance Act, 2016.
14.4. Implication of the amendment: The proposed expansion of the scope of Equalisation levy results in several issues of determination of tax base, cascading effect, nexus requirement, scope of residence, availability of foreign tax credit, etc.
The amendments brought in have been mostly in the nature of clarification or removing any difficulties in implementation the Finance Bill, 2020. The Equalisation Levy is majorly the key insertion vide the amendment.
Further, in absence of a formal discussion in the Lok Sabha, tax professionals are expected to engage in further studies and discussion to better understand the amendments and its implications.
Article(s) for reference:
Demystifying The Indian Taxation Regime On E-Commerce by Ms. Snehal Kanzarkar and Ms. Sara Jain
|Disclaimer: The contents of this document are solely for informational purpose. It does not constitute professional advice or a formal recommendation. While due care has been taken in preparing this document, the existence of mistakes and omissions herein is not ruled out. Neither the author nor itatonline.org and its affiliates accepts any liabilities for any loss or damage of any kind arising out of any inaccurate or incomplete information in this document nor for any actions taken in reliance thereon. No part of this document should be distributed or copied (except for personal, non-commercial use) without express written permission of itatonline.org|