Equalisation Levy Not Applicable on Google Ads where Advertiser and Target Located Overseas

The Hon’ble Jaipur ITAT has recently confirmed an order passed by the National Faceless Appeal Centre, Delhi (‘NFAC’) that no equalization levy was payable by a service provider of online advertisements since it merely acted as a conduit for getting the advertisements run on Google where both the advertisers and the target audience/target location of these online ads, were outside India and had no connection with India.

The assessee – an individual (proprietor of Oan Media and Web Solutions) was a service provider of online advertisement, digital marketing and web designing for consultancy charges. During the assessment year 2018-19, the assessee had made payment towards advertisement (AdWords) charges to M/s. Google Asia Pacific Pte. Ltd., Singapore [‘Google Singapore’), a non-resident, having no Permanent Establishment (PE) in India.

It was the contention of the Assessing Officer (‘AO’) that Section 165 of the Finance Act, 2016, relating to equalisation levy @ 6% was attracted in the assessee’s case, regarding the above transaction.

Section 165 of the Finance Act, 2016 provides that:

“165. (1) On and from the date of commencement of this Chapter, there shall be charged an equalisation levy at the rate of six per cent of the amount of consideration for any specified service received or receivable by a person, being a non-resident from—

  1. a person resident in India and carrying on business or profession; or
  2. a non-resident having a permanent establishment in India.

                  (2) The equalisation levy under sub-section (1) shall not be charged, where—

  1. the non-resident providing the specified service has a permanent establishment in India and the specified service is effectively connected with such permanent establishment;
  2. the aggregate amount of consideration for specified service received or receivable in a previous year by the non-resident from a person resident in India and carrying on business or profession, or from a non-resident having a permanent establishment in India, does not exceed one lakh rupees; or
  3. where the payment for the specified service by the person resident in India, or the permanent establishment in India is not for the purposes of carrying out business or profession”

As such, the AO, while passing the assessment order, made a disallowance u/s 40(a)(ib), on the ground that payment was made by the assessee, on behalf of his clients, to a Non-Resident, for advertisement purposes, in the digital mode and no tax was deducted by the assessee, towards equalisation levy on the said payment. This action attracted the provisions of sec.165(1) of the Finance Act, 2016 and the conditions mentioned therein. The AO also contended that the assessee’s case does not fall within the exceptions provided u/s 165(2) of the Finance Act, 2016.

The AO further pointed out that the equalisation levy is not part of income tax and therefore, any payment on which equalisation levy is applicable will not fall within the provisions of the Double Tax Avoidance Agreement (DTAA) and the taxpayer will have to pay equalisation levy, regardless of the provisions of the DTAA and the country the recipient belonged.

On appeal, the NFAC passed an order in favour of the assessee and held that the entire target audience/target location of these online ads, was outside India and had no connection with India. The assessee was only acting as a conduit for channelising payments received from his clients located outside India to Google Singapore, on behalf of these clients. These clients, for whose benefit the online ads were run on Google and who were the ultimate beneficiaries of the online ads, were neither residents of India nor could they be called as Non-residents having a PE in India. The entire business related to these online ads was carried out outside India. The assessee was merely working on behalf of these ultimate beneficiaries, who were his clients.

The Hon’ble Jaipur ITAT, while passing its order in the Revenue’s appeal, agreed with the observations of the NFAC, that the role of the assessee was that of an agent of Google Singapore and that the assessee was merely a conduit for getting the advertisement run on Google. It was not the assessee, but the person running the advertisement, who decided where the advertisement was to be run, on which geographical location, who would be the targeted audience and for how much duration such advertisement was to be run. All these people were not in the jurisdiction of India and this fact was never disputed by the Revenue. The Hon’ble ITAT, therefore, did not find any reason to interfere with the order of the NFAC, Delhi and passed a ruling in favour of the assessee.

 

FMA Comments

The above ruling provides much-needed clarity on the non-applicability of the relatively new provisions of the Equalisation Levy, especially where the payment that is being made towards digital advertising to advertisers located outside India, clearly pertains to situations where the ultimate beneficiary of the ad as well the advertisers, are both located overseas. The ruling has correctly reiterated the classic ‘’substance over form’’ dictum and should help taxpayers in planning their business activities, more definitively, going forward.

Image Credits: Photo by Rubaitul Azad on Unsplash

The above ruling provides much-needed clarity on the non-applicability of the relatively new provisions of the Equalisation Levy, especially where the payment that is being made towards digital advertising to advertisers located outside India, clearly pertains to situations where the ultimate beneficiary of the ad as well the advertisers, are both located overseas.

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Presumptive Tax Scheme in India – A Deep Dive

The provisions relating to Presumptive Tax Scheme (PTS) under the Income Tax Act, 1961 (ITA) are inter alia, covered under Sections 44AD, 44ADA, 44AE, 44B, 44BB, 44BBA and 44BBB. In this article, we have limited our discussion to Sections 44AD & 44ADA.

While Section 44AD covers within its ambit small taxpayers engaged in eligible business, Section 44ADA covers eligible professionals. Taxpayers opting for PTS are allowed to declare income as a prescribed percentage of turnover / gross receipts of the business/profession (as the case may be) and are exempted from maintaining books of account and getting them audited annually. As the taxable income is deemed/presumed to be a percentage of turnover / gross receipts, this scheme is popularly known as ‘presumptive taxation scheme’.

Decoding Section 44AD

 

 

Legislative History

The PTS was first introduced by the Finance Act of 1994 to estimate taxable income from the civil construction business or the supply of labour for civil construction work. The income from such businesses is estimated to be 8% of gross receipts, provided that such gross receipts do not exceed INR 40 lakhs. The taxpayer, if he chose, was allowed to voluntarily declare a higher income in his tax return.

The Finance Act, 1999, amended the PTS with retrospective effect from financial year (FY) 1997-98 and mandated the requirement of furnishing an audit report in cases where the assessee offered an income lower than 8% of gross receipts.

A significant change in the entire structure of PTS was made vide The Finance (No. 2) Act, 2009, w.e.f FY 2010-11. The scope of PTS was expanded to all ‘eligible assessees’ engaged in ‘eligible business’.

 

Coverage

 

Category of taxpayers covered:

The following categories of taxpayers having total turnover / gross receipts from business not exceeding INR 2 crores in a financial year can opt for PTS under section 44AD of the ITA:

  • Resident Individual;
  • Resident Hindu Undivided Family (HUF);
  • Resident Partnership Firm (not being a Limited Liability Partnership (LLP))
 
Category of businesses covered:

PTS under Section 44AD covers all businesses except the below, where the taxpayer is:

  • Earning income in the nature of commission or brokerage.
  • Engaged in the agency business.
  • Engaged in the business of plying, hiring or leasing goods carriages.

(This business is covered under PTS under Section 44AE of ITA)

  • Carrying on a specified profession.

(These professionals are covered under PTS under Section 44ADA of ITA, which is discussed in the latter part of this article).

  • Intending to claim deductions under sections 10A, 10AA, 10B, 10BA, 80HH, to 80RRB of the ITA.

 

 

Percentage of deemed income

Under Section 44AD, the taxable income of eligible assessees engaged in eligible business (as discussed above) is presumed to be 8% of the turnover/gross receipts.

To promote non-cash transactions, a lower rate of 6% has been provided in respect of the amount of turnover/gross receipts, that is received by the assessee on or before the due date of filing the Income Tax Return, by way of:

  • Account payee cheque or account payee bank draft;
  • Electronic Clearing System, Net banking, RTGS, NEFT;
  • Credit Card or Debit Card;
  • IMPS, UPI or BHIM Aadhar Pay.

Though the PTS provides for taxable income to be 8%/6% of turnover or gross receipts, taxpayers can voluntarily declare a higher income on their tax return.

 

 

Meaning of Turnover or Gross Receipts

The terms “turnover” and “gross receipts” are not defined in the ITA.

Reference can be made to the Guidance Note on Tax Audit under Section 44AB of the ITA (Guidance Note). Para 5.10 of the Guidance Note is reproduced below:

“5.10 Considering that the words “Sales”, “Turnover” and “Gross receipts” are commercial terms, they should be construed in accordance with the method of accounting regularly employed by the assessee. Section 145(1) provides that income chargeable under the head “Profits and gains of business or profession” or “Income from other sources” should be computed in accordance with either cash or mercantile system of accounting regularly employed by the assessee. The method of accounting followed by the assessee is also relevant for the determination of sales, turnover or gross receipts in the light of the above discussion.”

 

 

Other Important Points to Remember

 
 
  • Advance Tax: The due date for payment of advance tax shall be the 15th March of such FY;
  • Additional deductions: All the deductions u/s 30 to 38 for all taxpayers and in the case of partnership firms, interest and salary/remuneration to partners, would be deemed to have been allowed to the taxpayer.
  • Additional disallowances: Any disallowance relating to cash payments above INR 10,000 for expenses, non-deduction of tax at source, etc. will not be required to be added back, as Section 44AD overrides Sections 28 to 43C of the ITA.
  • Mandatory Tax Audit: In the case where the taxpayer has declared income as per PTS under Section 44AD in any FY and does not declare income in accordance with Section 44AD in any of the next five FYs, the taxpayer shall not be eligible to declare income under PTS for next five FYs, subsequent to the year in which income is not declared as per PTS under Section 44AD. Further, the taxpayer would also be required to maintain books of account and get them audited, irrespective of the turnover in the next 5 years, if his total income exceeds the maximum amount that is not chargeable to tax, i.e. the applicable basic exemption limit.

Illustration: Mr. A claims to be taxed under PTS under Section 44AD for Assessment Year (AY) 2019-20 and offers income in accordance with PTS. However, for AY 2020-21, he declares his income at a rate lower than the rate prescribed under PTS. In this case, Mr. A will not be eligible to claim the benefit of PTS for the next 5 AYs and will mandatorily be required to keep and maintain books of account and get them audited annually for those years as well i.e. AY 2021-22 to 2025-26 if his total income exceeds the maximum amount not chargeable to tax (basic exemption limit).

This is explained with the help of the following table in the case of Mr. X:

 

AYTurnover (in Cr)Profit (%)Income more than basic exemption limitSections applicableNote no.
44AA44AB44AD
2018-1937%YesYesYesNo1
2019-201.29%YesNoNoYes2
2020-210.855%YesYesYesNo3
2021-220.7510%YesYesYesNo4
2022-231.22%NoYesYesNo5
2023-241.59%YesYesYesNo

 

 

6

2024-250.926%YesYesYesNo
2025-260.959%YesYesYesNo
2026-272.56%YesYesYesNo

 

Note 1: Turnover exceeds Rs.1 Crore and hence, liable to maintain books of account and get them audited.

Note 2: Since Mr X declared income in accordance with the provisions of PTS under Section 44AD, he is not required to maintain books of account and get them audited.

Note 3: Since Mr. X declares profit @ 5%, which is lower than the prescribed rate of 8% under PTS, he shall be required to maintain books of account and get them audited for AYs 2020-21 to AY 2025-26.

Note 4: Mr. A is required to maintain books of account and get them audited.

Note 5: Mr. A is required to maintain books of account. He is not required to get them audited as his total income is less than the basic exemption limit.

Note 6: Mr. A is required to maintain books of account and get them audited.

 

 

Decoding Section 44ADA

 

 

Legislative History

The PTS under section 44ADA, also popularly known as ‘’presumptive taxation regime for professionals’’, was first introduced by the Finance Act 2016. The intention was to provide a PTS for people who make a living from their profession. 

 

 

Coverage

 

Categories of taxpayers covered:

The taxpayers listed below, whose total gross receipts from their profession do not exceed INR 50 lakhs in a fiscal year, are eligible for PTS under Section 44ADA:

  • Resident Individual;
  • Resident Partnership Firm (not being an LLP)
 
Categories of professions covered:

Only professions referred to in Section 44AA(1) of the ITA can opt for PTS under Section 44ADA. This includes a person carrying on:

  • Legal, Medical, Engineering or Architectural profession;
  • Profession of Accountancy, Technical consultancy or Interior decoration;
    • Other Profession like Film artist: Film artists include an actor, cameraman, director, music director, art director, dance director, editor, singer, lyricist, story writer, screenplay writer, dialogue writer, and dress designer.

 

 

Percentage of deemed income

Under Section 44ADA, the taxable income of an eligible taxpayer is presumed to be 50% of the gross receipts from the eligible profession.

The taxpayer can voluntarily declare higher income in the tax return.

 

 

Other important points to be kept in mind

  • Advance Tax: The due date for payment of advance tax shall be the 15th day of March of such FY;
  • Mandatory Tax Audit: In the case where the taxpayer claims his income to be lower than the deemed income of 50% as specified in PTS under Section 44ADA, he shall be required to maintain books of account and get them audited, if his total income exceeds the maximum amount that is not chargeable to tax, i.e. the applicable basic exemption limit.
  • Additional deductions: All the deductions u/s 30 to 38 and, in the case of partnership firms, interest and salary/remuneration to partners would be deemed to have been allowed.
  • Additional disallowances: Any disallowance relating to cash payments above INR 10,000 for expenses, non-deduction of tax at source, etc. will not be required to be added back, as Section 44ADA overrides Sections 28 to 43C of the ITA.

 

 

Issues Under the Presumptive Tax Scheme

  • Section 44AD vis-à-vis section 68/69
  • When a taxpayer declares income under Section 44AD, whether he is under an obligation to prove that he has incurred the balance of gross receipts by way of business expenditure became an issue in Nand Lal Popli v. Dy. CIT [2016] 71 taxmann.com 246 (Chandigarh).

The assessee proposed 8% of the gross contract receipt of Rs. 37.75 lakhs as income.The Assessing Officer (AO) requested information on the 92% expenditure of Rs. 32.73 lakhs. The assessee presented a cash flow statement with a cash outflow of Rs.18.49 lakhs, besides payment from the bank to the extent of Rs.16.25 lakhs. In the absence of documentary evidence of the cash flow, the AO ultimately made an addition of Rs.32.24 lakhs as an unexplained expenditure.

The issue before the Tribunal was whether the AO can make an addition under Section 69C of the ITA for the expenditure incurred by the assessee based on the cash flow statement when the assessee has declared income under Section 44AD. The Tribunal held that Section 44AD does not place any obligation on the assessee to maintain books of account when he has declared income as per the presumptive provision. It held that the cash flow statement cannot be considered as keeping books of account. It also held that the assessee cannot be asked to prove to the satisfaction of the AO the expenditure of 92% of the gross receipts, as that would defeat the very purpose of presumptive taxation.

It observed that if the AO had independent evidence of the expenditure incurred/not incurred or had carved out the case out of the glitches of Section 44AD, then such an addition could have been possible. Thus, the Tribunal held that an addition towards unexplained expenditure cannot be made under section 69C when the income has been offered under Section 44AD.

  • Whether a taxpayer declaring income under Section 44AD could be subjected to tax under Sections 68/69 for the amounts credited in his bank account became an issue in CIT v. Surinder Paul Anand [2010[ 48 DTR (P. & H.) 135.

In the assessment, the assessee was asked to explain the cash deposit in his bank account and finally the addition of Rs.14,95,300/- was made to the returned income. The Court held that the assessee has opted for presumptive provisions and is exempted from maintaining books of account. It held that the assessee is under an obligation to explain the individual entry of a cash deposit only when such entry has no nexus with the gross receipts of the business. The assessee claimed before both the CIT (A) and the Tribunal that the said amount was part of business receipts and in the absence of any other contrary material or evidence, the cash deposits could not be taxed as unexplained or undisclosed income of the assessee. The Court held that there was no substantial question of law in the appeal and hence upheld the order of the Tribunal.

  • Section 44AD and disallowance under section 40(a)(ia)
  • In ITO v. Mark Construction [2012] 23 taxmann.com 398 (Kolkata), the assessee engaged in civil construction and disclosed profits exceeding 8% by opting for Section 44AD provisions. In the assessment, the AO called for books of account of the assessee and the assessee took a plea that the income was offered under Section 44AD and hence maintenance/production of books of account was not compulsory. The AO made an addition of Rs. 32,62,140/- by invoking Section 40(a)(ia). The Tribunal held that since the assessee has disclosed profits of more than 8% of the gross receipts, no disallowance under Section 40(a)(ia) could be made.

As may be seen from the above analysis, the provisions of Sections 44AD and 44ADA can be extremely relevant for assessees from the perspective of tax planning and tax compliance. It is important that assessees consider the extant provisions of PTS along with their applicability to the business situation at hand. Also, appropriate professional advice should be sought, wherever necessary, to ensure that the optimum benefit of the PTS provisions is availed while finalising the tax returns.

Image Credits: Photo by Olya Kobruseva 

The provisions of sections 44AD and 44ADA can be extremely relevant for assessees from the perspective of tax planning and tax compliance. It is important that assessees consider the extant provisions of PTS along with their applicability to the business situation at hand. Also, appropriate professional advice should be sought, wherever necessary, to ensure that the optimum benefit of the PTS provisions is availed while finalising the tax returns.

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Have You Claimed Your Medical Expenses This Year?

Broadly, the medical expenses that can be claimed under the Income Tax Act 1961 (‘the Act”) in the income tax return[1] of an individual/HUF, comprise of the following:

  • Health Insurance/ Preventive Medical Check-up for Self and Family;
  • Maintenance or Medical Treatments for Disabled Dependents;
  • Medical Treatment for Dependents with Specified Diseases; and
  • Deduction for Person with Disability.

 

Health Insurance/Preventive Medical Check-up for Self and Family

As per section 80D of the Act, the taxpayer, being an individual or an HUF, can claim a deduction on premium paid towards medical insurance with the General Insurance Corporation of India or any other insurer approved by the Insurance Regulatory and Development Authority (IRDA) and medical expenditure incurred for

  • Self;
  • Spouse;
  • Parents;
  • Dependent children; and
  • Members of the HUF.

The deduction can be claimed from the following payments made by the taxpayer:

  1. A medical insurance premium paid for any of the foregoing;
  2. Actual expenditure incurred during the year on account of preventive/diagnostic health check-up for the health of any of the above;
  3. Medical expenditure incurred on the health of senior citizens (aged 60 years or above), whether taxpayer or any his/her family member, who are not covered under any health insurance scheme;
  4. The contribution is made to the Central Government Health Scheme, or any scheme as notified by the Government.

The above referred payments (barring the expenditure incurred on preventive health check-up) need to be mandatorily made through non-cash modes to avail the benefit.

The deduction in a year, would be subjected to the aggregate limits, as follows:

Particulars Premium Paid (Rs)   Maximum Tax Exemption u/s 80D (Rs)
  For
Self, Spouse and Dependent children		 For Parents  
Individual, Spouse, dependent children, and parents < 60 years 25,000 25,000 50,000

Individual, Spouse, Dependent Children < 60 years

but parents > 60 years

 25,000 50,000 75,000
Individual/Spouse, and parents > 60 years 50,000 50,000 100,000
Members of HUF 25,000 25,000 25,000

Note:

  • The above amount is inclusive of the preventive health check-up limit of Rs. 5,000 (Rupees Five Thousand only). The taxpayer can avail this tax benefit on the payment made towards the preventive health check-up undertaken for the taxpayer, spouse, children and parents.
  • If medical expenses are incurred for senior citizens (either self, spouse, dependent children or parents) not covered under any medical insurance, then the taxpayer can claim deduction for the said expenses incurred under the above limit of Rs 50,000.
  • If both the taxpayer and the parents are aged more than 60 years, for whom the medical covers has been taken, the maximum deduction that can be availed under this section is Rs 100,000. If the medical expenditure done on senior citizens (taxpayer/family and parents) are not covered under any health insurance, the taxpayer can claim a deduction for the said expenses within the said limit.

Based on the above reading, the maximum claim u/s 80D could be up to Rs 100,000 in a year.

Maintenance or Medical Treatments for Disabled Dependents

An individual or an HUF resident in India can claim for deduction under section 80DD of the Act in respect of the following:

  • expenditure for the medical treatment (including nursing), training and rehabilitation of a dependent, being a person with disability[1]; or
  • the amount paid to Life Insurance Corporation (LIC) or any other insurer or administrator or specified company in respect of a scheme for the maintenance of a dependent, being a person with disability.

Subject to a fixed deduction of Rs 75,000 if the disability is 40% or higher but less than 80% and Rs 125,000 if the disability is severe (80% or higher).

However, the deduction is subjected to the following conditions:

  • To claim the same, one must produce a certificate of disability from a prescribed medical authority to be filed on Form No. 10-IA[2] with the return of income.
  • The disabled individual should not have taken deduction under Section 80U.
  • It is essential that they should be wholly or mostly dependent on the taxpayer for their support as well as maintenance.

 

Medical Treatment for Dependents with Specified Diseases or Ailment

As per section 80DDB of the Act, an individual or an HUF resident in India can claim for the deduction of medical treatment of the specified diseases or ailments (Ref: Rule 11DD of the Rules), subject to:

  • Rs 40,000 per annum or the actual amount paid (whichever is less)
  • For senior citizens, Rs 100,000 per annum or the actual amount paid (whichever is less)

 

Deduction for Person with Disability

Section 80U of the Act provides deduction to people suffering from a disability[3]. As per this section, individuals suffering from a disability of at least 40% can claim tax benefit of Rs 75,000 per financial year (Rs 125,000 in case of severe disability of 80% and more). The taxpayer has to file Form No. 10-IA[4] producing certificate of disability from a prescribed medical authority with the return of income to claim the deduction.

The above deductions available to taxpayers should be carefully studied and optimised while finalising the income tax return.

For further advice and detailed assistance kindly contact any of the following individuals Fox Mandal and Associates:

Sandip Mukherjee – sandip.mukherjee@foxmandal.in

Salusalini Jha – salusalini.jha@foxmandal.in

Nikhil Bhise – nikhil.bhise@foxmandal.in

Akshita Bhandari – akshita.bhandari@foxmandal.in

References:

[1] Due date for filing FY 2021-22 tax return for individuals is 31st July, 2022.

[1] As defined in Sec2(i) of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995

[2] Ref: Rule 11A of the Income Tax Rules

[3] As defined in Sec2(i) of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995

[4]  Ref: Rule 11A of the Income Tax Rules

Here is a detailed list of medical expenses that an individual/HUF can claim while filing the annual income tax return under the Income Tax Act, 1961. 

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OECD BEPS Framework: Recent Development

Addressing tax issues arising in the digital economy has been a priority of the international community since past several years. It aims to deliver a consensus-based solution and ensure Multinational Enterprises (MNEs) pay a fair share of tax in the jurisdiction they operate. After years of intensive negotiations, the Organization for Export Co-operation and Development (OECD) / G20 has recently introduced a major reform in the international tax framework for taxing the Digital Economy.

The OECD / G20 inclusive framework on Base Erosion and Profit Shifting (BEPS) [“IF”] has issued a Statement, on 8th October 2021, agreeing on a two pillar-solution to address the tax challenges arising from the digitalization of the economy. There are 136 countries, including India, out of a total of 140 countries, representing more than 90% of the global GDP, that have agreed to this Statement. All members of the OECD countries have joined in this initiative and there are four G20 country members  (i.e. Kenya, Nigeria, Pakistan & Sri Lanka) who have not yet joined. The broad framework of the two-pillar approach as per the Statement is as follows:

 

Pillar One

 

Introduction and applicability:

  • Pillar One focuses on fairer distribution of revenue and allocation of taxing rights between the market jurisdictions (where the users are located), based on a ‘’special purpose nexus’’ rule, using a revenue-based allocation.
  • Applicable to large MNEs with a global turnover in excess of  Euro 20 Billion and profitability above 10% (i.e. profit before tax)[1]. This revenue threshold is expected to be reduced to Euro 10 Billion, upon successful review, after 7 years of the IF coming into force.
  • The regulated financial services sector and extractive industries are kept out of the scope of Pillar One.

 

Calculation Methodology:

  • Such allocation will help determine the ‘’Amount A’’ under Pillar one.
  • The special-purpose nexus rule will apply solely to determine whether a jurisdiction qualifies for Amount A allocation based on which 25% of residual profits, defined as profit in excess of 10% of revenue, would be allocated to the market jurisdictions using a revenue-based allocation key.
  • Allocation vis-à-vis nexus rule will be provided for market jurisdictions in which the MNE derives at least Euro 1 Million  of revenue  [Euro 250,000  for smaller jurisdictions (i.e. jurisdiction having  GDP lower than Euro 40 Billion )]
  • Profits will be based on financial accounting income, subject to:
    • Minimal adjustments; and
    • Carry forward of losses
  • Detailed revenue sourcing rules for specific categories of transactions shall be developed to ensure that revenues are sourced to end market jurisdiction, where goods or services are consumed.
  • Safe harbour rules will be separately notified, so as to cap the allocation of baseline marketing and distribution profits of the MNE, which may otherwise already be taxed in the market jurisdiction.

 

Tax Certainty:

  • Rules will be developed to ensure that no double taxation of profits gets allocated to the market jurisdiction, by using either the exemption or the credit method.
  • Commitment has been provided to have mandatory and binding dispute prevention and resolution mechanisms to eliminate double taxation of Amount A and also resolve issues w.r.t transfer pricing and business profits disputes.
  • An elective binding dispute resolution mechanism for issues related to Amount A will be available only for developing economies, in certain cases. The eligibility of jurisdiction for this elective mechanism will be reviewed regularly.

 

Implementation:

  • Amount A will be implemented through a Multilateral Convention (MLC), which will be developed to introduce a multilateral framework for all the jurisdictions that join the IF.
  • The IF has mandated the Task Force on the Digital Economy (TFDE) to define and clarify the features of Amount A (e.g. elimination of double taxation, Marketing and Distribution Profits Safe Harbour), develop the MLC, and negotiate its content so that all jurisdictions that have committed to the Statement will be able to participate.
  • MLC will be developed and is expected to be open for signature in the year 2022, with Amount A expected to come into effect in the year 2023.
  • IF members may need to make changes to domestic law to implement the new taxing rights over Amount A. To facilitate consistency in the approach taken by jurisdictions and to support domestic implementation consistent with the agreed timelines and their domestic legislative procedures, the IF has mandated the TFDE to develop model rules for domestic legislation by early 2022 to give effect to Amount A.
  • The tax compliance will be streamlined allowing in-scope MNEs to manage the process through a single entity.

 

Unilateral Measures:

  • The MLC will require all parties to remove all digital service tax (DST) and other similar taxes (eg: Equalisation levy from India perspective) with respect to all companies and to commit not to introduce such measures in the future.
  • No newly enacted DST or other relevant similar measures will be imposed on any company from 8 October 2021 and until earlier than 31 December 2023 or coming into force of the MLC.

 

Pillar Two

 

Introduction:

 

  • Pillar Two consists of Global anti-Base Erosion Rules (GloBE) to ensure large MNEs pay a minimum level of tax thereby removing the tax arbitrage benefit which arises by artificially shifting the base from high tax jurisdiction to low tax jurisdiction with no economic substance.
  • Pillar Two is a mix of several rules, viz. (i) Income Inclusion Rule (IIR); (ii) Undertaxed Payment Rule (UTPR); and (iii) Subject to Tax Rule (STTR).
  • IIR imposes a top-up tax on parent entity in respect of low taxed income of a constituent entity
  • UTPR denies deductions or requires an equivalent adjustment to the extent low tax income of a constituent entity is not subject to tax under an IIR.
  • STTR is a treaty-based rule which allows source jurisdiction to impose limited source taxation on certain related-party payments subject to tax below a minimum rate. The STTR will be creditable as a covered tax under the GloBE rules.
  • There would be a 10-year transition period for exclusion of a certain percentage of the income of intangibles and payroll which will be reduced on year on year basis
  • GloBE provides de minimis exclusion where the MNE has revenue of less than Euro 10 Million and profit of less than Euro 1 Million and also provides exclusion of income from international shipping.

 

Calculation Methodology:

 

  • Pillar Two introduces a minimum effective tax rate (ETR) of 15% on companies for the purpose of IIR and UTPR and would apply to MNEs reporting a global turnover above Euro 750 Million under country-by-country report.
  • The IIR allocates top-up tax based on a top-down approach, subject to a split-ownership rule for shareholdings below 80%. The UTPR allocates top-up tax from low-tax constituent entities, including those located in the Ultimate Parent Entities (UPE) jurisdiction. However, MNEs that have a maximum of EUR 50 million tangible assets abroad and that operate in no more than 5 other jurisdictions, would be excluded from the UTPR GloBE rules in the initial phase of their international activity.
  • IF members recognize that STTR is an integral part of Pillar Two for developing countries and applies to payments like interest, royalties, and a defined set of other payments. The minimum rate for STTR will be 9%, however, the tax rights will be limited to the difference between the minimum rate and tax rate on payment.
  • GloBE rules would not be applicable to Government entities, international organizations, non-profit organizations, pension funds or investment funds that are UPE of an MNE Group or any holding vehicle used by such entities, organizations, or funds.

 

Implementation:

  • Model rules to give effect to the GloBE rules are expected to be developed by the end of November 2021. These model rules will define the scope and set out the mechanics of the GloBE rules. They will include the rules for determining the ETR on a jurisdictional basis and the relevant exclusions, such as the formulaic substance-based carve-out.
  • An implementation framework that facilitates the coordinated implementation of the GloBE rules is proposed to be developed by the end of 2022. This implementation framework will cover agreed administrative procedures (e.g. detailed filing obligations, multilateral review processes) and safe-harbors to facilitate both compliance by MNEs and administration by tax authorities.
  • Pillar Two is proposed to be effective in the year 2023, with the UTPR coming into effect in the year 2024.

 

FM Comments :

 

With the introduction of the OECD/G20 inclusive framework on BEPS, OECD expects revenues of developing countries to go up by 1.5-2% and increase in overall reallocation of profits to developing countries of about USD 125 Billion. India, being a huge market to large MNEs, has always endorsed this global tax deal. However, with the introduction of this framework, India will have to abolish all unilateral measures, such as equalization levy tax and Significant Economic Presence (digital permanent establishment) provisions. MNEs will also have to re-visit their structure to ring-fence their tax positions based on the revised digital tax norms.  This Statement lays down a road map for a robust international tax framework w.r.t taxing of the digital economy,  not restricted to online digital transactions.

References

[1] Calculated, using an “averaging mechanism”, details of which are awaited.

Image Credits: Photo by Nataliya Vaitkevich from Pexels

With the introduction of the OECD/G20 inclusive framework on BEPS, OECD expects revenues of developing countries to go up by 1.5-2% and increase in overall reallocation of profits to developing countries of about USD 125 Billion. India, being a huge market to large MNEs, has always endorsed this global tax deal.

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Heightened Onus on Assessee to Prove Genuineness of Share Subscription Money Routed Through Web of Entities

The Hon’ble Mumbai Tribunal in the case of Leena Power Tech Engineers Pvt Ltd[1] has held that the onus (i.e. burden) is on the assessee to prove the ‘bonafides’ or ‘genuineness’ of the share application money credited in the books of accounts. The Tribunal further remarked that it would be superficial approach to examine assessee’s claim only on the basis of documents filed and overlook the unusual pattern in the documents filed by the assessee and pretend to be oblivious of the ground realities.  

Considering the fact that the monies were routed through complex web of entities, which failed to inspire any confidence about the genuineness of the investing company and made it looks like a shell company, the Tribunal upheld the additions made by the Assessing Officer (AO) in the hands of the assessee with respect to the receipt of share application money.

 

Facts – Leena Power Tech Engineer’s Pvt. Ltd.:

In the instant case, the assessee had received share application monies from Rohan Vyapar Private Limited (RVPL) and Manbhawan Commercial Pvt Ltd (MCPL). The equity shares were issued at 900% premium on the face value of Rs 10 each i.e. Rs 90 per share. The assessee had issued 3,78,290 equity shares to RVPL and accordingly received an amount aggregating to Rs 3,78,29,600. Similarly, the assessee had received an amount aggregating to Rs 4,35,00,000 from MCPL.

The case of the assessee was reopened by the Assessing Officer (‘AO’) on the basis of certain information received from the investigation wing which mentioned that the assessee has received share application money from RVPL which was subjected to routing through several layers and ultimately has its source in of huge cash deposits in one of the branches of ICICI Bank.

The transaction flow has been elaborated below for ease of reference.



Assessee’s Contentions: Relevant documentary evidence produced

The Assessee’s contentions have been summarized below:

The assessee contended that it had submitted all the relevant documentary evidence such as details of the subscribers to the share capital, share premium, bank statement, justification of share premium (computed on a scientific basis), share valuation by cash flow method, and ledger confirmation from the subscribers. The assessee further submitted that the Revenue had also issued a notice under section 133(6) of the Income-tax Act, 1961 (Act) which was duly replied along with the details of the transaction with the assessee, ledger account, return of income, audited balance sheet, etc. and accordingly it was contended that the assessee had discharged its initial onus cast upon it and now it is for the revenue authorities to prove otherwise.

It was further contended that the proviso to section 68[2] of the Act inserted with effect from 1 April 2013 cannot have retrospective operation. In this regard, reliance was placed on the ruling of Hon’ble jurisdictional High Court in the case of Gagandeep Infrastructure Pvt Ltd[3].

The Assessee further contended that the companies from which the assessee had received the share subscriptions were companies with proper net-worth and these companies were properly assessed to tax and have not been declared as shell companies by the Government or any official body and just because five levels below these companies, there are cash deposits in some bank accounts, the receipts cannot be rejected as lacking bonafide.

Accordingly, it was contended that the entries in the books of accounts of the companies subscribing to the shares cannot be brought to tax in the hands of the assessee.

Revenue’s Contentions: Assessee has failed to prove ‘Bonafides’

The primary contention of the Revenue was that the assessee has failed to prove the ‘bonafides’ of the share application money. Further, the Revenue further contended that the surrounding circumstance of the transaction clearly demonstrates that the transaction is not bonafide and the assessee is a beneficiary of a sophisticated money-laundering racket wherein the money is routed through multiple layering of accounts to the accounts of entities subscribing to the share capital of the assessee.

The Revenue further contended that it was the responsibility of the assessee to show the genuineness of the share application money received and merely producing PAN, income-tax returns, and financial statements of the subscriber do not prove that the transaction is bonafide. It was pointed out that there were hardly any overnight balances in the bank accounts of the companies subscribing to the shares of the assessee company, and all this indicates that these companies are merely conduit companies.

Issue Before the Tribunal:

The question which arose before the Tribunal was whether the learned Commissioner of Income-tax (Appeals) was justified in deleting the addition of Rs 8,13,29,600 as unexplained credit under section 68 of the Act in the hands of the assessee.

Mumbai Tribunal’s Ruling:

The Mumbai Tribunal observed and held as under:

At the outset, the Tribunal observed that there cannot be any dispute on the fundamental legal position that the onus is on the assessee to prove ‘bonafides’ or ‘genuineness’ of the share application money credited in the books of accounts and to prove the nature and source on the money to the satisfaction of the assessing officer.

The Tribunal placed reliance on the cases of Youth Construction Pvt Ltd[4], United Commercial and Industrial Co (P.) Ltd[5] & Precision Finance (P.) Ltd[6] and noted the kind of explanations which assessee is expected to provide:

  1. proof regarding the identity of the share applicants;
  2. their creditworthiness to purchase the shares; and
  3. genuineness of the transaction as a whole.

The Tribunal remarked that the onus of the assessee of explaining nature and source of credit does not get discharged merely by filing confirmatory letters, or demonstrating that the transactions are done through the banking channels, or even by filing the income tax assessment particulars.

The Tribunal further went on to add that, being a final fact-finding authority, it cannot be superficial in its assessment of the genuineness of a transaction and this call has to be taken not only in the light of the face value of the documents presented before the Tribunal but also in the light of all the surrounding circumstances, the preponderance of human probabilities and ground realities. The Tribunal placed reliance on the case of Durga Prasad More[7] wherein it was held that “If all that an assessee who wants to evade tax is to have some recitals made in a document either executed by him or executed in his favour then the door will be left wide open to evade tax. A little probing was sufficient in the present case to show that the apparent was not real. There may be a difference in subjective perception on such issues, on the same set of facts, but that cannot be a reason enough for the fact-finding authorities to avoid taking subjective calls on these aspects and remain confined to the findings on the basis of irrefutable evidence.”

The Tribunal further analyzed the financial statements of RVPL and observed that RVPL has earned only an interest income of Rs 1.13 lakhs and has not carried out any substantial activity during the relevant period. Further, the Tribunal found it difficult to believe that company handling investments in excess of Rs 10 crores and making such aggressive investments as buying shares for Rs 3.78 crores, at a huge premium of nine times the face value of shares, in the private limited and wholly unconnected companies, without any management control, will operate in such a modest manner. This defies logic and such transactions do not take place in the real-life world. The Tribunal also examined the bank account of RVPL and noted that there are series of transactions that do not inspire any confidence about the genuineness of the investing company but make it looks like a shell company acting as a conduit.

The Tribunal also observed that the entities involved in the transaction only provide different layers to the transaction and de facto hide the true investor. The assessee was also unaware of the actual beneficial investor in his company.

Additionally, the Tribunal examined, in detail, the valuation carried out by the assessee on the basis of Discounted Cash Flow (DCF) method and rejected the same thereby holding that the share premium at which the shares are issued is wholly unrealistic.   

A similar analysis was also carried out by the Tribunal with respect to another investor ‘MCPL’.

In light of the above facts and circumstances, the Tribunal rejected the assessee’s contention and held that the transactions under consideration are not ‘bonafide’ and accordingly restored the additions made by the AO.

Our Observation:

The order of the Mumbai Tribunal has, indeed, widened the scope of ‘onus’ placed on the assessee to prove the genuineness of a particular transaction. Such ‘onus’ will not be deemed to be discharged by merely filing the documents before the tax authorities, but the assessee would have to go one step further to justify the rationale of such transactions in order to prove that the transaction has not been entered as a colorable device to defraud the Revenue. The judgment further emphasizes taking a holistic view of the matter based on the surrounding circumstances rather than just relying upon the documentary evidence. Having said this, one has to keep in mind that documentary evidence will always be the primary source of substantiation of a particular transaction.

Going forward, it would be interesting to see the repercussions of this judgment and whether the other Tribunal and lower tax authorities would adopt a similar path and undertake a holistic view of the matter in order to differentiate between the apparent and the real.’

References

[1] [TS-883-ITAT-2021(Mum)]

[2] It provides that where the assessee is a company (not being a company in which the public are substantially interested), and the sum so credited consists of share application money, share capital, share premium or any such amount by whatever name called, any explanation offered by such assessee-company shall be deemed to be not satisfactory, unless— (a) the person, being a resident in whose name such credit is recorded in the books of such company also offers an explanation about the nature and source of such sum so credited; and (b) such explanation in the opinion of the Assessing Officer aforesaid has been found to be satisfactory.

 

[3] (2017) 80 taxmann.com 172 (Bom)

[4] [(2013) 357 ITR 197 (Del)]

[5] [1991] 187 ITR 596 (Cal)]

[6] [1994] 208 ITR 465 (Cal)]

[7] 1971) 82 ITR 540 (SC)

 

 

Image Credits: Photo by Nataliya Vaitkevich from Pexels

The order of the Mumbai Tribunal has, indeed, widened the scope of ‘onus’ placed on the assessee to prove the genuineness of a particular transaction. Such ‘onus’ will not be deemed to be discharged by merely filing the documents before the tax authorities, but the assessee would have to go one step further to justify the rationale of such transactions in order to prove that the transaction has not been entered as a colorable device to defraud the Revenue.

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Taxation (Amendment) Bill, 2021: Regaining Investor Confidence

The retrospective clarificatory amendment regarding taxability of indirect transfers and consequent demand raised in a few cases, had created doubts and serious concerns for potential investors in our country and had also tarnished India’s image in the international community. The country today stands at a juncture when quick recovery of the economy after the COVID-19 pandemic, is the need of the hour and foreign investment has an important role to play in promoting faster economic growth and employment.  With this objective in mind, the Hon. Finance Minister of India has proposed this Taxation Laws (Amendment) Bill 2021 (“the Bill’), to put an end to the protracted litigation on this subject matter.

 

The issue regarding taxability of indirect transfer of assets located within the country, by transferring shares of an intermediary foreign company, was first analyzed in the case of Vodafone International Holdings (‘Vodafone’). In that case, Vodafone had acquired 100 percent shares of a Cayman Island based subsidiary company, from Hutchison Telecommunication International Ltd. (‘HTIL’), which was holding 67 percent controlling interest in Hutchison Essar Limited (‘HEL’), an Indian Joint venture company. Through this transaction, Vodafone had indirectly acquired a controlling interest of 67% in HEL, without triggering any taxable event in India. However, the Indian Revenue authorities had served a notice on Vodafone for not withholding tax under section 195 of the Indian Income Tax Act, 1961 (‘the Act’) on the consideration that was paid by it to HTIL.

The controversy was finally settled by the Hon’ble Supreme Court (‘SC’) in 2012 in favour of Vodafone[1]. The SC had ruled that the word “through” in section 9 of the Act does not mean “in consequence of” and “sale of share in question to Vodafone, did not amount to transfer of capital asset within the meaning of section 2(14) of the Act”. Accordingly, an indirect transfer of Indian assets by transferring shares in a foreign company was not chargeable to tax in India and therefore was not liable to any withholding tax.

Retrospective Amendment in Finance Act, 2012:

In order to override the SC decision and tax such Indirect transfer transactions, the Central Board of Direct Taxes (CBDT) had introduced an amendment under section 9(1) of the Act, which was made effective retrospectively from 01 April 1962. The Finance Act, 2012 had inserted a clarificatory Explanation 4 and Explanation 5 to section 9(1)(i), as under:

“Explanation 4— For the removal of doubts, it is hereby clarified that the expression “through” shall mean and include and shall be deemed to have always meant and included “by means of”, “in consequence of” or “by reason of”.

Explanation 5— For the removal of doubts, it is hereby clarified that an asset or a capital asset being any share or interest in a company or entity registered or incorporated outside India shall be deemed to be and shall always be deemed to have been situated in India, if the share or interest derives, directly or indirectly, its value substantially from the assets located in India”

The above retrospective amendments created doubts in the minds of the stakeholders regarding the stability of India’s tax laws and also invited huge criticism and embarrassment at the international level.

Pursuant to this retrospective amendment, income tax demand had been raised in seventeen cases by the Revenue authorities. In four cases, the aggrieved taxpayers had preferred arbitration under India’s Bilateral Investment Protection Treaty with the United Kingdom and the Netherlands, respectively. Recently, the respective Arbitration Tribunals have, in the case of Vodafone International Holding BV vs. The Republic of India as well as in Cairn Energy PLC vs. The Republic of India, ruled in favour of the assessee and against the Government of India. The government of India has challenged both this arbitration award.

Proposed Amendment:

The Bill [2] proposes to amend the Act and abolish the retrospective tax on indirect transfer of Indian assets, if the transaction was undertaken before 28 May 2012 [3].

The amendment proposes to insert three provisos (fourth, fifth and sixth) under Explanation 5 to section 9(1)(i), thereby nullifying:

  • any pending or concluded assessment or reassessment; or
  • any order enhancing the demand / reducing the refund; or
  • any order deeming a person to be an “assessee in default” for non-withholding of tax; or
  • any order imposing a penalty

with respect to any income accruing or arising from the transfer of an Indian asset pursuant to the transfer of shares in a foreign company.

Therefore, all assessments or rectification applications (pending/ concluded) before the Revenue authorities, to the extent it relates to the computation of income from any indirect transfer of assets, shall be deemed to have concluded/ have never been passed without any additions.

Specified Conditions:

Relief under the proposed amendment would be available only to assessees fulfilling the following specified conditions:

  • The assessee shall either withdraw or submit an undertaking to withdraw any appeal filed before the Tribunal, High Court or Supreme Court with respect to the indirect transfer, in such form and manner as may be prescribed [4];
  • The assessee shall either withdraw or submit an undertaking to withdraw any proceeding for arbitration, conciliation or mediation, with respect to the indirect transfer, in such form and manner as may be prescribed [3];
  • The assessee shall furnish an undertaking waiving his right, whether direct or indirect, to seek or pursue any remedy or any claim in relation to indirect transfer in such form and manner as may be prescribed [3].

Pursuant to fulfillment of the specified conditions, where any amount becomes refundable to the person referred to in the fifth proviso, then, such amount shall be refunded to such person, without any interest on such refund under section 244A of the Act.

FM Comments:

The amendment is a proactive step aimed at neutralizing the criticism and embarrassment caused by retrospective amendment and regaining the stakeholder’s confidence in Indian judicial system. Such measures from the Government will certainly create a positive sentiment and a sense of tax certainty amongst the investors and hopefully, help in attracting incremental foreign investment into the country, which will play an important role in promoting faster economic growth and development.

 

References:

[1] Vodafone International Holdings B.V. vs. UOI (2012) 341 ITR 1 (SC)

[2] President is yet to give his assent on the said Amendment Bill

[3] Date on which Finance Bill, 2012 received assent of the President

[4] Form for submitting undertaking is yet to be prescribed

 

Image Credits: Photo by Michael Longmire on Unsplash

Such measures from the Government will certainly create a positive sentiment and a sense of tax certainty amongst the investors and hopefully, help in attracting incremental foreign investment into the country, that will play an important role in promoting faster economic growth and development.

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