The Entire Law On Taxation of Undisclosed Foreign Income and Assets
CA P. N. Shah
The author, an eminent Chartered Accountant, has meticulously analyzed the provisions of The Undisclosed Foreign Income and Assets (Imposition of Tax) Bill, 2015 and explained all its intricacies and nuances. He has also offered valuable suggestions on how to make the legal provisions more effective and prevent its misuse
The Finance Minister, while presenting his Budget on 28th February, 2015, has divided his tax proposals under six heads. One of this relates to “Measures to Curb Black Money”. In Para 100 of his speech he has stated that “The first and foremost Pillar of my tax proposals is to effectively deal with the problem of black money which eats into the vitals of our economy and society. The problems of poverty and inequity cannot be eliminated unless generation of black money and its concealment is dealt with effectively and forcefully”. In his speech he has extensively dealt with the steps taken for investigation of cases of undisclosed foreign assets. He has observed that “Investigation into cases of undisclosed foreign assets has been accorded the highest priority, resulting in detection of substantial amount of unreported income”. Recognising limitation under the existing legislation, he has stated that it is necessary to enact a comprehensive new law on black money to specifically deal with such money stashed away abroad. To achieve this objective he has introduced “The Undisclosed Foreign Income and Assets (Imposition of Tax) Bill, 2015”, in the Lok Sabha on 20th March, 2015. In this article the important provisions of this Bill are discussed.
The provisions proposed to be made in this legislation are very harsh and stringent. In order to prevent misuse of these provisions in the cases of small assessees, it is necessary to provide that no action under the legislation for any year will be initiated where the value of undisclosed foreign income or assets does not exceed Rs. 1 crore
2.1 The objective for introducing this
Bill is explained in the Statement of Objects and Reasons appended to the Bill is as under:
“Stashing away of black money abroad by some people with intent to evade taxes has been a matter of deep concern to the nation. ‘Black Money’ is a common expression used in reference to tax-evaded income. Evasion of tax robs the nation of critical resources necessary to undertake programmes for social inclusion and economic development. It also puts a disproportionate burden on the honest taxpayers as they have to bear the brunt of higher taxes to make up for the revenue leakage caused by evasion. The money stashed away abroad by evading tax could also be used in ways which could threaten the national security.
The Central Government is strongly committed to the task of tracking down and bringing back undisclosed foreign assets and income which legitimately belong to the nation. Recognising the limitations of the existing legislation, it is proposed to introduce a new legislation to deal with undisclosed assets and income stashed away abroad”.
2.2 There are 88 sections in the Bill. Most of the sections deal with procedural provisions for making assessment, appeals, recovery of tax and administrative procedure. These provisions are on the same lines as provisions in the Income-tax Act. After enactment, the provisions of this new legislation will come into force from assessment year 2016-17 i.e. F.Y.: 1-4-2015 to 31-3-2016.
Some of the important terms defined in section 2 are as under:
(i) “Assessee” for this legislation means a person who is a “Resident” liable to pay tax in respect of undisclosed foreign income and assets. Therefore, the provisions of the Bill do not apply to a “Non-Resident” or a “Resident but not Ordinarily Resident” as defined in section 6(6) of the Income-tax Act. Thus, any Individual, HUF, Firm, AOP, BOI or a company which is a Resident will be considered as an assessee.
(ii) “Undisclosed Assets located outside India” is defined to mean an asset or financial interest in any entity located outside India, held by the assessee in his name or in respect of which he is a beneficial owner. This definition will apply only if the assessee is not able to explain about the source of investment in such asset to the satisfaction of the Assessing Officer (A.O). From the wording of this definition it is evident that if the assessee is a beneficiary in a Trust having assets outside India and if he has not disclosed his interest in the trust, the same will be considered
as undisclosed asset located outside India.
(iii) “Undisclosed Foreign Income and Asset” is defined to mean the total amount of undisclosed income of the assessee from a source located outside India and the value of an undisclosed foreign asset. The computation of such income or asset is to be made as provided in sections 4 and 5.
4. Computation and Levy of Tax
4.1 Sections 3 to 5 provide for computation of undisclosed foreign income and assets and levy of tax under this new legislation. Section 3 states that tax at the rate of 30% will be payable by the assessee on the undisclosed foreign income or asset in the year in which the same comes to the notice of the A.O. In other words, if the A.O. comes to know about any undisclosed foreign income or asset of an assessee during the F.Y. 1-4-2015 to
31-3-2016, tax as provided in this section can be charged as income of the A.Y. 2016-17. It is also provided in section 3 that tax will be payable on the value of the undisclosed asset located outside India belonging to the assessee in the year in which it comes to the notice of the A.O. The valuation of such asset is to be made at its fair market value determined in the manner specified in the Rules to be prescribed. Such asset will include financial interest in any foreign entity.
4.2 The total undisclosed foreign income and asset belonging to an assessee for any year is to be computed u/s. 4 by aggregating the following items.
(i) Income from a source located outside India which has not been disclosed in the return of income filed u/s. 139 of the Income-tax Act.
(ii) If the assessee has not filed the return u/s. 139 of the Income-tax Act and has some income from a source located outside India. This will mean that if a Resident assessee has not filed return of income as his income is below taxable limit in India (say Rs. 1,00,000/-) and Dividend Income on his investment in shares of a foreign company (say Rs. 50,000/-) he will be liable to pay tax @30% under this new legislation on Rs. 50,000/- if the A.O. comes to know that the assessee has received this dividend income from a foreign company. Thus, it will be advisable for all Resident assessees having income from a foreign investment to file return of income u/s. 139 of the Income-tax Act even if total Indian and Foreign Income is below taxable limit.
(iii) The value of an undisclosed asset located outside India. It may be noted that if a resident assessee has invested in shares of a foreign company in F.Y. 2008-09 for Rs. 2,00,000/-, which has not been disclosed in the return of income, the A.O. can treat this as undisclosed foreign asset if it comes to his notice in F.Y. 2015-16. In such a case tax @30% will be payable on its fair market value (say Rs. 5,00,000/-), and not on its cost, in the A.Y. 2016-17 under this new provision.
The above section provides that if the above undisclosed foreign income and asset is taxed under this legislation, it will not be added in the computation of total income under the Income-tax Act. Thus, there will be no double taxation of such income.
4.3 Section 5 states that while computing the total undisclosed foreign income and asset the following adjustments shall be made.
(i) No deduction in respect of any expenditure, allowance or set off of any loss shall be allowed, whether or not it is allowable under the provisions of the Income-tax Act.
(ii) If any income has been assessed for any year prior to A.Y. 2016-17 under the Income-tax Act or any income is assessed or assessable under the new legislation the same shall be reduced from the value of the undisclosed assets located outside India. For this purpose the assessee has to produce evidence to prove that the asset has been acquired from the income which has been assessed or is assessable to tax as stated above.
4.4 For calculating the deduction in respect of undisclosed foreign immovable property, under item (ii) of Para 4.3 above, section 5(2) gives an Illustration as under.
“A house property located outside India was acquired by an assessee in the previous year 2009-10 for Rs. 50 lakhs. Out of investment of Rs. 50 lakhs, Rs. 20 lakhs was assessed to tax in the total income of the previous year 2009-10 and earlier year. Such undisclosed asset comes to the notice of the Assessing Officer in the year 2017-18. If the value of the asset in 2017-18 is Rs. 1 crore, the amount chargeable to tax shall be A-B=C, where A = Rs. 100 lakhs, B = Rs. (100 X 20/50) lakhs i.e. Rs. 40 lakhs, C= Rs. (100-40) lakhs = Rs. 60 Lakhs.
5. Assessments, appeals etc.
5.1 The administration of this new legislation is entrusted to the officers of the Income Tax Department. Sections 6 to 40 provide for tax administration, assessment, reassessment, rectification, revision, appeals, payment of interest, recovery of tax, interest, penalty and other incidental matters. These procedural provisions are more or less on the same lines as provided under the Income-tax Act.
5.2 The procedure for assessment is laid down is sections 10 and 11. If the Assessing Officer (A.O.) receives any information from an Income Tax authority or any other authority under any law or any information is brought to his notice, he can serve a notice on the concerned person. By this notice that person can be called upon to produce such accounts, documents or evidence as the A.O. may require for the purpose of this new legislation on the specified date.
5.3 The A.O. can also make inquiry for the purpose of obtaining full information in respect of undisclosed foreign income and asset of the person for the relevant financial year.
5.4 After considering such accounts, documents or evidence produced by the assessee and after considering the material gathered by the A.O. he can pass an order in writing assessing the undisclosed foreign Income and Asset and determine the amount of tax, interest and penalty payable by the assessee. It may be noted that section 10(3), as drafted, does not provide that the A.O. should give a hearing to the assessee to present his view point before the assessment is made. There is no specific provision whereby the A.O. is obliged to inform the assessee about any material collected by the A.O. from any outside source which he proposes to use for making the assessment. To this extent section 10(3) as drafted requires to be modified. The principles of natural justice require that the assessee should have an opportunity to rebut any evidence collected by the A.O. behind the back of the assessee and adequate opportunity should be given to the assessee to present his view point before any assessment is made.
5.5 If the person to whom notice is given by the A.O. fails to comply with the terms of the notice, section 10(4) provides that the A.O. can complete the assessment to the best of his judgment on the basis of the relevant material gathered by him. In this section, it is specifically stated that the A.O. shall give opportunity to the assessee of being heard before passing the assessment order.
5.6 Section 14 provides that A.O. can make a direct assessment of a person on whose behalf or for whose benefit undisclosed foreign income is receivable or undisclosed asset located outside India is held. It appears that this provision is made to levy tax on a resident assessee who is a beneficiary with specified share in a Foreign Trust if such beneficiary has not disclosed his interest in such a trust.
5.7 Section 11 provides that no order of assessment or reassessment shall be made u/s 10 after the expiry of 2 years from the end of the F.Y. in which the notice u/s. 10(1) is issued. If the A.O is required to pass a fresh assessment order or modify the assessment order due to any direction in any appeal proceedings similar time limit of 2 years from the end of the financial year in which such direction is given is also provided in section 11. Although, the section mentions passing of an order of assessment or reassessment there is no provision in this Bill for making a reassessment. No procedure for reopening an assessment is made in this legislation.
5.8 The following sections deal with the procedure for rectification, revision appeals etc.
(i) Rectification of Mistakes – Section 12
(ii) Appeal to CIT(A) – Sections 15–17
(iii) Appeal to ITA Tribunal – Section 18
(iv) Appeal to High Court/Supreme Court on substantial questions of law – Sections 19 to 22.
(v) Powers to CIT for Revision – Sections 23-24
These provisions are more or less on the same lines as corresponding provisions in the Income-tax Act. The procedure to be followed is similar to the procedure under the Income tax Act.
5.9 Sections 30 to 40 provide for a procedure to recover tax, interest, penalty etc. payable under this legislation. This procedure is on the same lines as per the corresponding provisions of the Income-tax Act. In section 25 it is stated that if any appeal is preferred to the High Court or the Supreme Court, the assessee should pay the tax payable under this legislation. Section 40 provides that if the assessee has any income from a source out of India which has not been disclosed in the return of income, Interest calculated u/s. 234A shall be payable. If no advance tax is paid on such income, interest calculated u/ss. 234B and 234C shall be payable. Such interest shall be payable with tax levied under this legislation. It is also provided in the procedure for recovery that if any part of the tax, interest or penalty levied in respect of undisclosed foreign income or asset is not paid by the assessee the A.O./TRO can recover the tax from his assets located in India.
5.10 In a case where the assessee has property in a country or specified territory outside India with which there are Agreements u/ss. 90, 90A of the Income-tax Act or u/ss. 73(1), (2) or(4) of this legislation, TRO can refer the matter for recovery of assessed tax, interest or penalty to CBDT. On receipt of such intimation CBDT can take appropriate action as provided in the Agreement with that country or specified territory.
6.1 Stringent penalties are provided in respect of undisclosed foreign income and assets in sections 41 to 47. In brief, these provisions are as under.
(i) Where the A.O. has computed the value of undisclosed foreign income and asset u/s. 10 and assessed as such, penalty at the rate of 300% of the tax on the amount so assessed shall be payable u/s. 41. The A.O. has no discretion in the matter and this penalty cannot be reduced by him. In other words, if the A.O. has found that the assessee has not disclosed his foreign income or asset, he can charge 30% tax and 90% penalty i.e 120% of the value of undisclosed foreign income and asset.
(ii) If a resident assessee fails to furnish his return of income u/s. 139 of the Income-tax Act before the end of the relevant assessment year, the A.O. can levy penalty of Rs. 10 lakhs if he finds that the assessee had the following foreign income or asset.
(a) The assessee held any asset (including financial interest in any entity) located outside India as a beneficial owner or otherwise, or,
(b) He was a beneficiary of any asset (including financial interest in any entity) located outside India, or,
(c) He had any income from a source located out of India.
(iii) Similarly, if such an assessee has filed his return of income u/s. 139 but has not declared the above foreign income or asset or has given inaccurate particulars about the same in the return of income, the A.O. can levy penalty of Rs. 10 lakhs.
It may, however, be noted that this penalty will not be levied if the assessee has one or more bank accounts in foreign banks and aggregate of the foreign currency in these accounts converted into rupees does not exceed Rs. 5,00,000/-.
Reading the above provisions it appears that such levy of penalty is very harsh as it has no relationship with the amount of foreign income or value of the foreign asset. Thus, an assessee having dividend income of Rs. 50,000/- from his declared investment in shares of a foreign company has not filed a return of income on the ground that his total income in India (including this foreign dividend income) is less than taxable limit, can suffer this penalty of Rs. 10 lakhs u/s. 42 of this legislation.
(iv) A.O. can levy penalty if an assessee does not pay the tax levied under this legislation before the due date and continues to default in paying this tax. Penalty will be equal to the tax in arrears. It is also provided that this penalty can be levied even if the assessee pays the tax before levy of penalty.
(v) Section 45 provides for levy of minimum penalty of Rs. 50,000/- which may extend to Rs. 2,00,000/- for other defaults by a person, such as –
(a) Not answering questions put to him by any tax authority.
(b) Failing to sign any statement recorded in the course of proceedings under this legislation by any tax authority.
(c) Failure to attend, produce books of account, documents or evidence in respect to summons issued by a tax authority.
6.2 The procedure for levy of penalty to be followed by A.O. is provided in section 46. This procedure is on the same lines as provided in the Income-tax Act. Section 47 provides for time limit for passing the penalty order as under:
(i) No penalty order can be passed after the expiry of one year from the end of the financial year in which penalty notice is issued u/s 46.
(ii) The penalty order can be revised within 6 months from the end of the month in which any appellate order is passed by CIT(A), ITA Tribunal, High Court or Supreme Court or Revision order is passed by CIT.
7.1 On the lines of the penalty provisions, stringent provisions are made in sections 48 to 58 for launching prosecution for offences under the legislation. In brief, these provisions are as under.
(i) If a resident assessee wilfully fails to disclose details about any foreign income or asset in the return filed u/s. 139 of the Income-tax Act or fails to file return of income u/s. 139 before the end of the year he will be punishable with rigorous imprisonment for a term which shall not be less than 6 months but which may extend to 7 years and with fine.
(ii) If a resident assessee or any other person wilfully attempts in any manner to evade any tax, interest or penalty chargeable under this legislation, he will be punishable with rigorous imprisonment for a term which shall not be less than 3 years and but which may extend up to 10 years and with fine.
(iii) If a person makes a statement in any verification which is false, he will be punishable with rigorous imprisonment which shall not be less than 6 months but which may extend to 7 years and with fine.
(iv) If a person abets or induces any person to deliver an account, statement or declaration relating to tax payable under this legislation which is untrue or false or to commit any offence punishable u/s. 51(1), he shall be punishable with rigorous imprisonment for a term which shall not be less than 6 months but which may extend up to 7 years and with fine. It may be noted that this punishment for abetment can also apply to a Chartered Accountant, Advocate or a Tax Consultant on whose advise the resident assessee has filed his return of income and not declared his foreign income or asset on his advice.
(v) If any offence, as stated above, has been committed by a company, every person, who at the time the offence was committed, was in charge of and was responsible for the conduct of the business of the company, together with the company, can be prosecuted for the offence. Persons who can be prosecuted are the concerned Directors, Manager, Secretary or other concerned officer. It is provided that the punishment in the form of fine can be levied on the company and punishment in the nature of imprisonment can be awarded to the concerned Directors, Manager, Secretary or other Officers. For this purpose a “Company” is defined to mean a body corporate, or a Firm, A.O.P., B.O.I. or HUF. Further, a “Director” will include a partner of firm or member of A.O.P., B.O.I. or adult member of HUF.
(vi) Section 58 provides that a person convicted for the above offence for the second time or subsequent time, punishment for every such offence shall be rigorous imprisonment for a term which shall not be less than 3 years but which may extend to 10 years. Further, fine for each such subsequent offence shall not be less than Rs. 5 lakhs which may extend to Rs. 1 crore.
7.2 The procedure for launching prosecution is on the same lines as provided in the Income -tax Act.
8. Amnesty Scheme
8.1 Sections 59 to 72 provide for one time voluntary declaration to avoid any penal action under this legislation. Briefly stated, these provisions are as under.
(i) After the commencement of this legislation, but on or before the date notified by the Central Government, the concerned assessee can make a voluntary declaration in respect of the undisclosed asset located outside India and acquired from income chargeable to tax under the Income-tax Act for assessment year 2015-16 or any prior year which has escaped assessment for the following reasons.
(a) He has failed to furnish a return of income u/s. 139.
(b) He has failed to disclose in a return of income furnished by him under the Income-tax Act before the commencement of this legislation.
(c) It has escaped assessment by reason of the omission or failure on the part of the assessee to file the return of income or to disclose fully and truly all material facts necessary for assessment or otherwise.
(ii) The person making such voluntary disclosure will have to pay
(a) Tax at 30% of the value of the undisclosed foreign asset
(b) Penalty at 100% of the above tax.
(iii) The payment of the above tax and penalty shall be made on or before the date notified by the Government.
(iv) The above declaration is to be made to the CIT in the form to be prescribed. This declaration is to be signed by the authorised person as stated in section 62(2).
(v) If the above tax is not paid before the due date, the declaration filed will be deemed never to have been made.
(vi) Any amount of tax and penalty paid by the person making the declaration shall not be refundable.
(vii) The amount of undisclosed investment in an asset located outside India declared in accordance this voluntary disclosure scheme shall not be included in the computation of total income under the Income-tax Act.
(viii) If the above voluntary declaration has been made by misrepresentation or suppression of facts, such declaration shall be void and shall be deemed never to have been made.
8.2 Section 69 provides that no wealth tax shall be payable in respect of the assets declared under the voluntary declaration scheme. Further, section 70 provides that provisions of Chapter XV and 189 of the Income-tax Act and chapter V of the Wealth Tax Act will apply in relation to foreign assets declared under the above provisions.
8.3 Section 71 provides that the following persons shall not be entitled to make voluntary declaration under the above scheme.
(i) A person in respect of whom an order of detention has been made under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974. This is subject to certain exception stated in the Proviso to section 71 (a).
(ii) A person in respect of whom a prosecution has been launched for any offence punishable under Chapter IX or XVII of the Indian Penal Code, the Narcotic Drugs and Psychotropic Substances Act, 1985, the Unlawful Activities (Prevention) Act, 1967 or the Prevention of Corruption Act, 1988.
(iii) Any person notified u/s. 3 of the
Special Court (Trial of Offences
Relating to Transactions in Securities) Act, 1992.
(iv) Any person in whose case, in respect of any undisclosed asset (including any foreign bank account in which there is any balance or not) located out of India, any proceedings u/ss. 142, 143(2), 148, 153A or 153C of the Income-tax Act are pending for A.Y. 2015-16 or earlier years. Further, in the case of a person, if the search u/s. 132 is conducted or requisition u/s. 132A has been issued or survey u/s. 133A has been conducted prior to 1-4-2015 and notices u/ss. 143(2), 153A or 153C of the Income-tax Act have been issued or the time limit for issue of such notices have not expired, the declaration under the Scheme cannot be made.
9. Some suggestions
9.1 The provisions proposed to be made in this legislation are very harsh and stringent. In order to prevent misuse of these provisions in the cases of small assessees, it is necessary to provide that no action under the legislation for any year will be initiated where the value of undisclosed foreign income or assets does not exceed Rs. 1 crore. In such cases, such undisclosed income or asset, can be assessed under the relevant provisions of the Income- tax Act.
9.2 It is necessary to specifically provide that if a person has earned income in a foreign country or acquired any asset outside India out of income earned when he was a non-resident or a resident but not ordinarily resident in any prior year or years, the said foreign income or asset will not be made subject to tax under this legislation. Such situation will arise in following cases.
(i) A person of Indian Origin has settled down in U.K. His status in A.Ys. 2001-02 to 2015-16 is Non-Resident. He has earned income in U.K. and acquired some assets there. If he returns to India on 1-4-2015 and decides to retain his foreign assets, in the absence of specific provision the A.O. may try to levy tax and penalty under this legislation on the ground that such foreign income or asset was not declared in the return of income filed by such person u/s. 139 in respect of his Indian income when he was a non-resident.
(ii) Similar question may arise in the case of foreigner who comes to India as an employee and due to his residence in India becomes a Resident in India. He cannot be made liable to tax and penalty under this legislation in respect of assets acquired by him in foreign country
out of his income when he was non-resident.
(iii) Finance Bill, 2015, proposes to amend section 6(3) of the Income-tax Act. If this amendment comes into force from 1-4-2015, certain foreign companies will become Resident in India on the basis of effective management situated in India. In such cases it should be specifically provided that this legislation will not apply to such foreign companies. In any event, no tax or penalty should be levied under this legislation in respect of income or assets of such companies situated outside India.
9.3 If a Resident Individual is a beneficiary of a Discretionary Trust established by a non-resident, it should be specifically provided in this legislation that no tax or penalty should be levied in respect of the assets located out of India and held by the Trustees of the Trust. This is because he cannot be considered as owner of these assets. He may be liable to
tax only if he receives any income from the Trust.
9.4 It is necessary to provide in the new legislation that if the assesssee is able to establish that a particular foreign income or asset located out of India was not disclosed due to reasonable cause, penalty should not be levied. This will enable persons who have Indian and foreign income below the taxable limit to show that the return u/s. 139 of the Income-tax Act was not filed for this reason.
9.5 Under this legislation the assessee is not required to file any return of income. The proceedings will start in the year in which it has come to the notice of A.O. that the person has earned income in a foreign country or he is owner of assets outside India which he has not disclosed. A.O. is given power to collect information about this foreign income or assets located outside India and compute the value of such assets. The A.O. can make assessment u/s. 10 on the basis of the material gathered by him. It is necessary to specifically provide in section 10 that the A.O. should give opportunity to the assessee to make his submission about the material, documents or other evidence collected by the A.O. before he completes the assessment. A procedure similar to section 144C of the Income-tax Act can be provided so that the A.O. should send a draft assessment order which can be finalised if the assessee does not object or can be referred to Dispute Resolution Panel if the assessee objects to the draft order. Direct appeal to ITA Tribunal can be then made after DRP decides the matter.
9.6 There is a provision in section 43 that penalty of Rs. 10 lakhs can be levied if the foreign income or foreign asset is not declared in the return of income filed u/s. 139 of the Income-tax Act or such return is not filed. It may be noted that if any such penalty is to be levied, the provision should be made in the Income-tax Act. Again it is not clear whether such penalty will be levied only if the default is made in the year in which it comes to the notice of A.O. about existence of such foreign income or foreign asset or in respect of each of the earlier years when the assessee has failed to disclose the details in returns of earlier years. Further, fixed penalty of Rs. 10 lakhs has no relationship with the amount of undisclosed foreign income or asset. If penalty is to be levied, it should be levied only if in the return of income for the year in which A.O. comes to know about such foreign income or asset is not disclosed and the penalty amount should be equal to tax on such foreign income and value of the foreign asset subject to a maximum of Rs. 10 lakhs.
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