Income Tax India: Laws

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This is a collection of articles archived for the excellence of their content.

Contents

Basic tenets

Adapted from EconomicTimes March 2014

1) The interest earned on a bank fixed deposit is...Interest on FDs is fully taxable as income at the rate applicable to the taxpayer.

2) Travel insurance policies are not tax deductible for salaried individuals.

3) An individual won't get tax deduction for... employer's contribution to PF.

4) Gifts worth over Rs 50,000 in a year are taxed as income of recipient.

5) Any income of a minor child will be clubbed with that of the parent. HRA is not tax-exempt if you pay rent to... Your minor child.

6) A disabled dependant gets you a deduction under Section 80DD. This is an additional tax benefit

7) f you have a second house lying vacant, you have to...

a. Pay tax on rent not received. b. Include in wealth tax. c. Pay property tax on it. All the three conditions apply on a second house lying vacant.

8) If one earns rent on property, how much of it is taxable? Rental income is eligible for 30% standard deduction.

9) Only those with income below the basic exemption are exempt from filing tax returns.

10) The RGESS deduction is available only to first-time investors in equities.

Appeals

2015: Appeals only for Rs 10 lakh +

Sources:

1. The Times of India, Dec 13 2015

2. The Times of India, Dec 13 2015, Rubna Kably


I-T appeals only for Rs 10L and above   In a bid to reduce litigation and spare taxpayers harassment, the Central Board of Direct Taxes has increased from Rs 4 lakh to Rs 10 lakh the threshold for filing an appeal before the Income Tax Appellate Tribunal, reports Rubna Kably.

The threshold limit for an appeal by the I-T department before the high courts has been doubled to Rs 20 lakh. The threshold for I-T department appeals before SC remains at Rs 25 lakh.


To rein in frivolous appeals, CBDT ties I-T hands by raising `tax effect' limit


The Central Board of Direct Taxes (CBDT) continues with its plan to reduce litigation and be more taxpayer-friendly. By significantly increasing the threshold limits for filing of appeals, at various judicial levels, by the Income-tax (I-T) department, the CBDT hopes to mitigate taxpayer harassment and create efficacy in the functioning of the I-T department. At times, the I-T department files appeals with higher courts, with an eye on revenue, when the decision in the lower court is in favour of the taxpayer. Such frivolous litigation adds to the costs for both parties and results in taxpayer harassment.

The threshold limit for filing an appeal before the Income-Tax Appellate Tribunal (ITAT) by the I-T department has now been raised from Rs 4 lakh to Rs 10 lakh. Similarly , the limit for an appeal before the high courts has been doubled to Rs 20 lakh. While such revisions are an annual affair, the recently announced upward revisions are significant.

However, no change has been made in the threshold for appeals filed before the Supreme Court, which remains at Rs 25 lakh. Appeals before the ITAT and courts can now be filed by the I-T department only if the `tax effect' exceeds the threshold limits (see table). This move will help not only corporates, but also high net-worth individuals who find themselves embroiled in I-T litigation.

The CBDT has also clarified, in its circular dated December 10, that the revised limits will apply retrospectively and pending appeals below the specified threshold limits should be withdrawn or not pressed.

The `tax effect', as defined in CBDT's circular, means the difference between the tax on the total income assessed by the I-T department and the tax that would have been charged if the total income of the taxpayer was reduced by the income relating to disputed issues.

The CBDT has also instructed that merit must be the guiding factor while filing an appeal with higher judicial bodies -both the ITATs and courts. “It is clarified that an appeal should not be filed merely because the tax effect in a case exceeds the monetary limits (ie: threshold limits for appeals) prescribed,“ states the circular.

Tax experts view that the increase in threshold limits and withdrawal of pending appeals falling below the revised thresholds will ease litigation. The impact will be more favourable at the ITAT level, which is the first level of appeal. It is learnt that pan-India, 1.06 lakh cases were pending across various ITAT benches as of June 1. The maximum pendency was in Mumbai and Delhi, with 25,039 and 20,499 pending cases. Howev er, the exact number of pend ng cases, which will now fall below the revised threshold imits and be withdrawn, was not available.

However, to safeguard the nterests of the I-T department, certain caveats have been built into the instruc ions. For instance, just because on a particular disputed ssue, the I-T department has not appealed as the tax effect is ow, it does not preclude it from iling an appeal on the same issue for another taxpayer where the tax effect is beyond he prescribed threshold).

Further, the instructions on not filing an appeal if the ax effect is below the prescribed monetary limit will not apply in certain instances. These instances include: where the constitutional val dity of a tax provision is challenged; where the CBDT's circular has been held illegal or even when the audit objection has been accepted by the I-T department.

Artists

Fashion designers

Times of India

‘Fashion designers are artists, eligible for I-T exemption’ Shibu Thomas

Mumbai: A fashion designer is an artist, the Bombay High Court has said and ruled that they are eligible for incometax exemptions available under the category. Ten years after the income-tax department first objected to tax benefits claimed by one of India’s leading fashion designers, Tarun Tahiliani, a division bench of Justice Dhananjay Chandrachud and Justice J P Devadhar on Monday said the designer should get tax privileges extended to the artists.

Tahiliani opened the country’s first fashion boutique, Ensemble, and is credited with being one of the designers who have brought high couture to India. Tahiliani’s IT woes began in October 2000 when he sought tax exemption for his income of Rs 83.90 lakh. Under Section 80 RR of the Income-Tax Act, a resident of India, who is an an author, playwright, artist, musician, actor or sports person can claim exemption of 75% of his income earned from foreign assignments. Tahiliani said that applying the exemptions, his taxable income for that year would be Rs 53.24 lakh.

The tax department, however, refused to accept that the fashion designer was an artist. It also contested deductions sought by sought by Tahiliani on his taxable income for 1999-2000 and 2001-2002. The income-tax appellate tribunal ruled in Tahiliani’s favour, upholding his claim that he was a creative artist. The IT department challenged the order before the high court.

The department’s lawyer contended that a fashion designer didn’t belong to the creative profession as the vocation was classified under applied arts and not fine arts. The IT department said that the benefit of exemption was granted to aid the artists, who represent Indian culture abroad.

The HC dismissed the IT department’s petition and held that fashion designers were entitled to tax exemptions meant for artists.

Corporates’ promotional activities

Pharmaceutical companies’ junkets for doctors

Lubna Kably, I-T trips pharma cos on doc junkets, Sep 20 2016 : The Times of India

Tribunal Disallows Expenses

The Mumbai bench of the Income-Tax Apellate Tribunal (ITAT) has nipped the `unholy' doctor-pharma nexus whereby medical practitioners are offered various incentives, like overseas trips, to encourage them to prescribe specific medicines or lines of treatment.

It has done so by upholding a disallowance of Rs 76.55 lakh, made by an I-T officer at the assessment stage. The expenditure was incurred by Liva Healthcare (a pharma company specialising in skincare formulations) to wards overseas trips for doctors and their spouses.

The immediate impact of the order is a higher I-T liability for the pharma company for financial year 2008-09, to which this case pertains, as the disallowed expenditure will be added back to the taxable component of income. In addition, the order will act as a reminder to pharma compa nies to adopt practices that are above board. The maximum rate of income tax on companies currently is 30% plus applicable surcharge and cess.

The ITAT's September 12 order observes, “The payment of overseas trips of doctors and their spouses for entertainment, by the pharma company , in lieu of expectation of getting patient re ferrals from doctors for its products so as to generate more business and profits, by any stretch of imagination cannot be accepted as legal.Undoubtedly it is not a fair practice and has to be termed as against the public policy.“

Section 37 of the I-T Act, which is a residual section, permits a business entity to claim as a deduction revenue expenditure incurred by it, `wholly and exclusively for the purpose of the business'.However, an explanation to this section provides that expenses incurred for any purpose which is an offence or is prohibited by law shall not be deemed to have incurred for the purpose of the business.Consequently , such expenditure cannot be allowed as a deduction from taxable income.

The code of conduct prescribed by the MCI debars doctors from receiving favours in return for referring, recommending or procuring of patients for medical, surgical or any other treatment.

Donations to NGOs’ projects

Halved in 2017

Share of donations to projects under Sec 35AC halved in FY16, March 4, 2017: The Times of India


Sec 35AC Sunset Clause Will Expire On March 31

Donations made to hundreds of projects carried out by NGOs across the country will no longer be eligible for a 100% income tax (I-T) deduction in the hands of the donor from April 1. While tax savings are not the main purpose, if donations are made in March towards eligible projects, then donors comprising salaried employees could reap an I-T benefit.

At present, donations made for specific projects run by NGOs that have been certified under section 35AC entitle the donor to a 100% I-T deduction under section 80GGA in respect of the donated amount.

However, section 35AC has a sunset clause which expires this March. Section 80GGA is not as widely known as section 80G, which permits a 100% I-T deduction in respect of certain donations (such as PM's National Relief Fund) and a 50% I-T deduction in most other cases (see table).

“Taxpayers who do not earn income under the head `profits and gains of business and profession', such as salaried employees, can claim the benefit of section 80GGA. While the employer cannot consider the donations made, while computing tax to be deducted at source against salary income, the employee can claim the benefit of the same in his I-T return and claim an I-T refund, if applicable,“ says Pradeep Mahtani, director, HelpYourNGO Foundation. A chartered accountant says, “In fact, if there has been a short deduction of tax at source and advance tax has not been paid by the salaried employee, by making donations eligible for I-T deduction up to March 31, the salaried taxpayer could mitigate his I-T penalty . Donors should ensure that they get the appropriate receipt.“

Notifications are issued by the finance ministry from time to time, certifying the projects that are eligible under section 35AC, the period of eligibility and also the total cost of the eligible project. For instance, as regards NGOs registered in Ma harashtra, these include projects by Magic Bus (skill development and livelihood programme), Association of Palliative Care (for a palliative care centre), Foundation of Promotion for Sports and Games (Olympic Gold Quest project) and Mesco (educational scholarships).

HelpYourNGO, an online donation platform, has on its portal 45 NGOs that run 90 projects eligible under section 35AC, These include some well known names such as Akshaya Patra's midday meals, projects by Childline and People for Animals.

In view of the sunset clause, a government-appointed national committee -which approves projects that would be eligible under section 35AC -had ceased to accept requests after December last year. “Donation stems from fundamental reasons, which are deep-rooted among each donor whether that's joy , guilt, remembrance or duty . However, everyone does think of saving I-T after having donated. Just like the insurance and the investment industry , which makes people aware of I-T savings available to them, for donations it is incumbent upon NGOs to make people aware of taxes they can save as a result of the donation they have made,“ says Dhaval Udani, founder of Danamojo, a payments platform for NGOs.

Perhaps awareness of a 100% I-T deduction for donations made to section 35AC-eligible projects has been low. HelpYourNGO did a dipstick sample survey of 12 NGOs, for which data was readily available. It showed that the percenta ge of donations towards 35ACeligible projects as compared to total donations received by NGOs has declined from 14.7% in fiscal 2014-15 to 7.9% in the next fiscal.

Deval Sanghavi, partner and co-founder at Dasra, a strategic philanthropy foundation, points out, “Our experience has shown that donors see the I-T deduction more as a government certification, which in essence states the organisation is compliant with laws and adheres to missiondriven principles vis-à-vis a giver donating more because of the I-T deduction.“

The number of individuals who donate money to charity has shown a rise in India.As many as 203 million Indians donated money during 2015, opposed to just 183 million in 2014, according to the World Giving Index 2016.

Educational institutions

Profits not taxable: SC

The Times of India

Mar 19 2015

Amit Choudhary

The Supreme Court has ruled that surplus income earned by educational institutions cannot be taxed, and imparting education not termed a for-profit activity simply because it yielded high returns. Dismissing the revenue department's submission that an educational institution ceased to be a solely scholastic endevaour if it generated high profits, the court noted that their income was exempt from tax under the Income Tax Act.

“Where an educational institution carries on the activity of education primarily for educating persons, the fact that it makes a surplus does not lead to the conclusion that it ceases to exist solely for educational purposes and becomes an institution for the purpose of making profit,“ a bench of Justice T S Thakur and Justice Rohinton F Nariman said.

“A distinction must be drawn between the making of a surplus and an institution being carried on `for profit'. If, after meeting expenditure, a surplus arises incidentally... it will not cease to be one existing solely for educational purposes,“ the bench added.

The court, however, said the government must examine activities of such institutions to ensure that the purpose of education is not taken over by a profit-making motive. “If they are not genuine, or are not being carried out in accordance with all or any of the conditions subject to which approval has been given, such exemption must be withdrawn,“ it said.

The court passed the order on a bunch of petitions filed by Queen Educational Society challenging an Uttarakhand High Court order allowing I-T authorities to tax its surplus income of around Rs 7 lakh for the assessment year 2000-01.

Exemptions

1950: residential palace of erstwhile ruler exempted from IT

AmitAnand Choudhary, Can't tax income from palace rent: SC, Dec 6, 2016: The Times of India

Court Raps I-T Dept For Pursuing Case Against Erstwhile Ruler Of Kota


The Supreme Court held that the income earned by erstwhile rulers of a princely state or their heirs by renting out a portion of the residential palace was not taxable and rapped the Income Tax department for pursuing a case despite their income being exempted under IT law.

A bench of Justices Ranjan Gogoi and Abhay Manohar Sapre allowed a plea of the ruler of the former princely state of Kota, now a part of Rajasthan, challenging the high court order for bringing his income from rent in the Income Tax net. The ruler owns extensive properties, including two residential pa laces known as Umed Bhawan Palace and the City Palace. The ruler is using Umed Bhawan Palace for his residence and a portion of it was rented out to the ministry of defence way back in 1976.

Although the Centre had in 1950 declared residential palace of an erstwhile ruler, situated within the state, as his inalienable ancestral property to be exempted from payment of income-tax, the I-T department had in 1984 initiated proceedings for assessment of income earned from renting out a portion of the palace. The Centre had incorporated Section 10(19A) in the IT Act to give exemption to former rulers.

The department contended that IT exemption was given for personal use and income earned from the rent was taxable. Commissioner of Income Tax and Income Tax Appellate Tribunal, however, turned down the plea of the IT department which had moved the Rajasthan HC.

The HC had ruled that as so long as the ruler continued to remain in occupation of his official palace for his own use, he would be entitled to claim exemption but if he let out any part of his palace, he became disentitled to claim benefit of exemption available under Section 10(19A) for the entire palace.

“In such circumstances, he is required to pay income-tax on the income derived by him from the portion let out in accordance with the provisions of the I T Act and the benefit of exemption remains available only to the extent of portion which is in his occupation as residence,“ the HC had said.

Quashing the HC order, the Supreme Court held that Section 10(19A) has used the term “palace“ for considering the grant of exemption to the ruler and income earned from renting out a portion of the palace was also exempted.

“We cannot ignore this distinction while interpreting Section 10(19A) which, in our view, is significant. In our considered opinion, if the Legislature intended to spilt the Palace in part(s), alike houses for taxing the subject, it would have said so by employing appropriate language in Section 10(19A) of the IT Act.We, however, do not find such language employed in the section,“ the bench said.. “Once the assessee is able to fulfil the conditions specified in section for claiming exemption under the Act then provisions dealing with grant of exemption should be construed liberally because the exemptions are for the benefit of the assessee,“ it said.

Scheduled tribes, Sikkimese, agriculture, institutions, hospitals, trusts

Here's why scrapped notes are flying off to the northeast, TNN | Updated: Nov 24, 2016, The Times of India

HIGHLIGHTS

I-T laws allow exemptions for various categories of incomes or individuals

Among those are members of ST communities in Nagaland, Manipur, Tripura, Arunachal and Mizoram

A similar exemption is available to all those defined as "Sikkimese"

Among those exempt from paying income tax are members of scheduled tribe communities in Nagaland, Manipur, Tripura, Arunachal Pradesh and Mizoram. Scheduled tribes in North Cachar Hills and Mikir Hills in Assam, the Khasi Hills, Garo Hills and Jaintia Hills in Meghalaya and Ladakh in Jammu & Kashmir also don't have to pay income tax. The exemption applies to income arising from any source in these areas or from dividends or interest on securities from anywhere.

A similar exemption is available to all those defined as "Sikkimese" in the I-T Act. This again is for any income generated from Sikkim itself and for income from dividend or interest on securities generated anywhere. The intent behind these exemptions is to provide fiscal concessions to backward areas and communities. In times like now, it becomes a useful route for people looking to turn undisclosed incomes legitimate.

Apart from these geographically restricted exemptions, there is of course the exemption for agricultural income. That includes any rent or revenue derived from agricultural land.

There are several institutions that are tax exempt under the IT Act. Again, it is not difficult to see why the lawmakers would have decided not to tax them. For instance, income of a public charitable trust or not for profit society established for development of khadi and village industries is exempt from tax. Educational institutions including universities existing solely for educational purposes and not for profit are exempt from paying tax on their incomes under various sub-sections of the IT Act.

Similarly, not for profit hospitals too are exempt, different kinds being covered by different sub-sections.

Income of a charitable institution or fund approved by the prescribed authority is not required to pay taxes on its income either. Nor are public religious or public charitable trusts approved by the prescribed authority. Political parties and electoral trusts are also exempt from tax on their incomes. It is another matter that a major chunk of the money flowing to parties never enters any books anyway.

Yoga

`Medical relief,' `imparting education' are charitable purposes

Lubna Kably, Ramdev trust wins I-T war on tax-exempt tag for yoga, Feb 18, 2017: The Times of India


Baba Ramdev's Patanjali Yogpeeth (a public charitable trust) has succeeded in its appeal before the Income-tax Appellate Tribunal (ITAT), which has accepted its tax exempt status.

The ITAT (Delhi bench) held that Yoga entails providing medical relief and camps also provide education, and that both `medical relief ' and `imparting education' fall within the meaning of charitable purpose, entitling the trust to claim I-T exempt status under sections 11 and 12 of the Income Tax Act.

“The finding of I-T authorities that propagation of yoga by Patanjali Yogpeeth does not qualify as medical relief or imparting of education is not justified,“ stated the ITAT in its order dated Feburary 9.Even as the litigation settled by the ITAT, relates to the 200809, the ITAT has also referred to subsequent amendment in the I-T Act, which came into effect from April 1, 2016. This amendment specifically inserted `yoga' within the definition of `charitable purpose'. If the exempt status not been upheld by the ITAT, Patanjali Yogpeeth would have been liable to pay income tax. The total income of this trust is not brought out in the ITAT order.

The ITAT also held that corpus donations aggregating to Rs 43.98 crore received by Patanjali Yogpeeth, predominantly for construction of cottages under its Vanprasth Ashram Scheme (which provides accommodation to those attending residential yoga courses), were capital receipts not liable to I-T. Such donations included land donated, whose market value was pegged by I-T authorities at Rs 65 lakh. In its order, the ITAT pointed out that “Corpus donations are not taxable, even in circumstances where the trust is not eligible for I-T exemption“.

Various additions to the trust's income made by the I-T authorities, including a Rs 96 lakh addition made for services made by the trust to Vedic Broadcasting in which Acharya Balkrishnan, a trustee and close aide of Baba Ramdev holds substantial interest were deleted by the ITAT, on the ground that the I-T authorities had not understood the facts.

The ITAT also agreed with the submissions made by the trust and observed that certain inferences by the I-T authorities such as provision of benefits to certain persons or receipt of anonymous donations were made without fully appreciating the facts.

Family trusts

No `gift' tax on property received from individual

No levy on transfer of assets to family trust, March 24, 2017: The Times of India


`Gift' tax provisions will not apply to property received from an individual by a family trust, according to an amendment made in the Finance Bill passed by the Lok Sabha.

High net worth individuals (HNWI) commonly use family trusts as a tool for succession planning, as it provides an upfront solution to any possible future disputes that may arise, including any challenges to a will by relatives at a later date. Family trusts also ring fence assets from any future liabilities.Shares, immovable property et al are settled (transferred) to the trust for the benefit of spouse, children and other relatives. The trust dis tributes income to the beneficiaries.

The Finance Bill had introduced clause (x) in section 56(2). It provided that receipt of money or property by `any person' (which includes individuals and other entities such as private trusts and companies) without consideration or for inadequate consideration in excess of Rs 50,000 shall be subject to Income-tax (I-T) in the hands of the recipient, under the head `Income from other sources'.“The budget proposals had created uncertainty around family trusts receiving such gifts. The enacted change will bring relief to families intending to create trusts for legitimate succession planning,“ says Pranav Sayta, family business services leader at EY India.

Foreign tax credit (FTC)

The Times of India, Jul 01, 2016

Lubna Kably

In a bid to reduce litigation, the Central Board of Direct Taxes (CBDT) has made it easier for Indian-resident taxpayers, including large Indian companies having overseas operations, to claim credit for the taxes borne by them abroad. Credit of foreign taxes (referred to as foreign tax credit, or FTC) were allowed under tax treaties with other countries and the Income Tax Act, but the absence of specific rules often led to litigation.Denial of FTC by tax authorities also resulted in double taxation on the same income in the hands of Indian-resident taxpayers.

FTC rules issued by the CBDT provide that credit for foreign taxes can be claimed against taxes paid in India, like income tax (be it personal or corporate), cess and surcharge. Further, Indian companies can also claim FTC against Minimum Alternate Tax (MAT). Taxpayers have to submit proof of the tax paid or deducted at source in the foreign country to claim FTC.

The earlier draft rules, issued in April, had excluded disputed foreign taxes from the ambit of FTC. Now credit can be claimed in respect of disputed foreign taxes, subject to meeting compliance requirements.

Indian-resident taxpayers pay taxes on their global income in India, including on foreign source income which has already been subject to tax overseas (see graphic). FTC eliminates double taxation on the same income. To illustrate: A parent company headquartered in India earns interest on debt given to its Sri Lankan (SL) subsidiary and is subject to a 10% withholding tax. The Indian company will pay tax in India on its global income (including the foreign source interest income). The new rules will make it easier for it to claim an FTC for the 10% tax with held in Sri Lanka.

According to RBI data, India Inc's overseas investments by way of debt and equity amounted to $750 million in May . FTC rules will help Indian companies with global operations get benefit of credits for foreign taxes. The rules will also help high net worth individuals who make overseas investments and bear foreign taxes on their dividend or interest income. “Clarity on grant of FTC against the MAT liability is a big positive as is the move to provide credit for `disputed foreign taxes' upon final settlement of dispute. However, the modus operandi for allowing such credit -especially when the assessments are time-barred -needs to be prescribed,“ says Girish Vanvari, tax leader at KPMG India.

Some hiccups remain.Gautam Nayak, tax partner, CNK & Associates, says, “The rules provide clarity about the extent of FTC available and documents to be submitted for that. However, difficulties faced by certain taxpayers have not been addressed.FTC would not be available for taxes not covered by the relevant tax treaty , such as state taxes paid in the US or branch profits' taxes paid overseas.Besides, the tax credit would be restricted to the rate of tax payable under the tax treaty , even if the actual tax paid as well as the Indian tax payable is higher. So, if excess taxes have been withheld by the foreign payer out of abundant precaution, or on account of their local laws, tax credit would be available only for tax payable under the treaty terms. For example, the US levies a higher rate of withholding of 30% if a foreign entity (say an Indian company) does not have a tax identification number. In such cases, credit in India would be available only to the extent of applicable rate prescribed under the tax treaty.“

Income Tax returns

Who has to file income tax returns

Declaring investments through Form 12BB, 2016 onwards; Graphic courtesy: The Times of India, May 8, 2016

Salaried persons earning up to Rs 5 lakh annually

Salaried persons earning up to Rs 5 lakh annually will have to file income tax returns: Central Board of Direct Taxes

PTI | Jul 22, 2013

The Times of India


The CBDT had exempted salaried employees having a total income of up to Rs 5 lakh including income from other sources up to Rs 10,000 from the requirement of filing income tax return for assessment year 2011-12 and 2012-13, respectively.

However, for the assessment year 2013-14 and thereafter, salaried persons earning up to Rs 5 lakh annually will have to file income tax returns, Central Board of Direct Taxes (CBDT) said on Monday.

Earlier in May 2013, the CBDT had made E-filing of income tax return compulsory for the assessment year 2013-14 for persons having total assessable income exceeding Rs 5 lakh.

The CBDT said that the exemption has been not been extended as the facility for online filing of returns has been made "user-friendly with the advantage of pre-filled return forms".

These e-filed forms also get electronically processed at the central processing centre in a speedy manner, it said.

For filing returns, an assessee can transmit the data in the return electronically by downloading ITRs, or by online filing.

Thereafter the assessee had to submit the verification of the return from ITR-V for acknowledgement after signature to Central Processing Centre.

Not filing I-T returns?Imprisonment,fine

Not filed I-T returns? You face jail & fine

TNN | Aug 17, 2013-

The Times of India

MUMBAI: Those defaulting in filing income tax returns are liable to prosecution, the I-T department has said.

If the tax evaded exceeds Rs 25 lakh, the defaulter can be sentenced to a minimum imprisonment of six months and maximum of seven years, besides being asked to pay a fine. If the tax evasion amount is less than Rs 25 lakh, the imprisonment could range between three months to two years in addition to fine.

Recently, the additional chief metropolitan magistrate, New Delhi, sentenced a taxpayer to six months' imprisonment in one assessment year and one year imprisonment in subsequent assessment year for repeating the offence of not filing income tax returns.

Joint I-T liability

Co-ownership of property

The Times of India, Aug 13 2016

Lubna Kably

If the spouse has not invested in a property and is merely a co-holder, then on sale of such property , she cannot be liable for tax on capital gains, the Mumbai IncomeTax Appellate Tribunal (ITAT) has recently ruled. The ITAT order will help many taxpayers as married couples are increasingly opting for property registration in joint names, even if only one of them is the investor.

Anil Harish, an advocate specializing in real estate, said: “Co-holding of property is popular. Often the name of a spouse (say wife) is added to provide a sense of comfort, to ensure ease of succession on death of the partner or other reasons such as facilitating voting in a general body meeting of the housing society .“

The ITAT gave the order on Wednesday while hearing a case of a medical professio nal, Vandana Bhulchandani.

An I-T officer, based on information in his possession, noted that Bhulchandani had not disclosed the capital gains arising from the Rs 2.12-crore sale of a property in Parel that she jointly held with her husband in her I-T return for the financial year 2008-09.

She informed the I-T officer that her husband had made the entire investment and the property was reflected in his books of accounts--from the date of purchase till the date of sale. The officer also observed that Bhulchandani's husband did not incur any I-T liability on the capital gains arising from the sale--the husband had set off the short-term capital gains arising from the Parel property sale against the short-term capital losses incurred by him on the sale of shares. Under the I-T Act, short-term capital losses can be set off against capital gains arising in the same financial year and only the surplus, if any , is taxable.

But the I-T officer claimed that the entire arrangement was done to avoid tax payment and held Bhulchandani liable for 50% of the total short-term capital gains arising from the property sale and added Rs 45.38 lakh to her taxable income. Short-term capital gains are taxed at the applicable I-T slab rates, which depending on an individual's income varies between 10% and 30% in addition to applicable surcharge and cess.

Bhulchandani approached the commissioner of income-tax (appeals) who directed deletion of the addition.The I-T officer then filed an appeal before the ITAT. But the tribunal took into cognizance that the husband had bought the property , which was duly reflected in his books of accounts, and had also disclosed the details of the sale in his I-T return and thus, dismissed the appeal.

“The ITAT order is clear and correct. It will provide clarity in cases of co-holding of property , where the spouse has not made any monetary investment,“ said Harish.

Permanent account number (PAN)

2016: PAN mandatory for…

The Times of India Jan 04 2016

Mandatory PAN requirements

1 With effect from January 1, 2016, it has become mandatory to quote the permanent account number (PAN) for all transactions above `2 lakh for all modes of payment.

2 Only bank accounts opened under the Pradhan Mantri Jan Dhan Yojana have been exempted. But all other bank accounts and all kinds of deposits will have to quote PAN.

3 PAN will be mandatory for purchase of prepaid cards worth `50,000 or more in a year. Pur chase of gold jewellery worth above `2 lakh (`5 lakh current limit) would also need PAN.

4 The limit for quoting PAN for sale or purchase of real estate property has been raised to `10 lakh from `5 lakh.

5 PAN needs to be quoted only for a cash payment for a hotel or restaurant bill and foreign travel or purchase of forex of `50,000 (current limit `25,000).

2016: Required for transactions above Rs 2 lakh

The Times of India, Jun 22 2016

John Sarkar

New PAN rule hurts sale of luxury goods

Mails are flying thick and fast at most luxury stores across the country as harried sales staff face a tough time trying to coax people to part with their permanent account number (PAN) details. By the looks of it, they are not accomplishing much, resulting in poor sales of luxury goods. Furnishing of PAN details has been made mandatory by the government for any transaction above Rs 2 lakh in a bid to weed out black money .

However, the move has deterred many wealthy shoppers from spending lakhs of rupees on luxury products such as handbags, watches and writing instruments. “Our bags start at Rs 2 lakh.Sales at our store have been hit badly because our regular customers have stopped coming,“ said a senior executive of a French luxury brand. Earlier, most of them would pay in cash. But now, instead of giving their PAN details, they are opting to shop abroad.“

Most people in the luxury industry TOI spoke to complained about similar issues.For instance, at a store selling high fashion French leather goods in the capital, executives are tearing their well-groomed hair out to convince customers to reveal their PAN card number.

“We have taken a hit of several lakhs of rupees over the last few days but have not been able to figure out a way around the problem,“ said an executive at the store.“The other day , a lady who had come to buy a bag said she wouldn't risk getting her husband into trouble by furnishing his PAN card details.Eventually , she walked out without buying anything.“

Nikhil Mehra, CEO of Genesis Group that has marketing and distribution arrangements for several luxury brands such as Jimmy Choo, Giorgio Armani, Em porio Armani and Tumi among others and is the JV partner for Canali, Burberry and Villeroy and Boch in India, said consumer sentiment here has been affected by this ruling. “However, for most of our brands it is not a challenge because prices are within the Rs 2 lakh limit,“ he said.

The Indian luxury market has been pegged at Rs 16,300 crore in 2015 by market research firm Euromonitor and is expected to touch Rs 39,000 crore by 2020, with an annual growth rate of 19%.

Property, immovable, owned abroad

Notional rent to be included in income tax return

Lubna Kably, SRK must pay tax on notional rent from Dubai villa, rules ITAT, Order Set To Affect People Who Own Second Homes Abroad, March 23, 2017: The Times of India


Actor Shah Rukh Khan has to include notional rent from his Dubai villa in his income tax return filed in India, the Income Tax Appellate Tribunal (ITAT) has ruled.

Khan had submitted to the ITAT that under the IndiaUAE tax treaty , income from immovable property in Dubai would be liable to tax in the UAE and, therefore, he had not offered it to be taxed in India.

The ITAT rejected his contention. However, the two member ITAT (Mumbai) bench of Amit Shukla and G S Pannu added: “Credit for taxes paid in the UAE, if any , would be allowed as per the law.“

The ITAT directed the I-T officer to rework the final liability, which would arise in the hands of the actor, under the head “income from house property“. This decision will have wide ramifications for taxpayers having a second home overseas, especially those who fall under the jurisdiction of the Mumbai bench of the ITAT.

“In many instances, I-T authorities have been holding that rental income from overseas residential property (or deemed rental income, if the house is not let out) would be taxable in India. This ITAT decision will strengthen their argument,“ said Shuddhasattwa Ghosh, partner, people advisory services, at EY India.

Under the I-T Act, if a person has two residential properties, only one can be treated as “self-occupied“ and exempt from I-T. The other is taxed under the head “income from house property“ based on the annual value (in general terms deemed rental value or notional rent). Certain deductions are allowed to arrive at the taxable income from the house property , such as a 30% standard deduction and also municipal taxes paid on such property .

The Bollywood actor had been gifted a villa in Dubai and he obtained possession of it on June 18, 2008. For the financial year 2008-09, the I-T officer estimated the deemed rental value to be Rs 96 lakh. After allowing for a 30% standard deduction, he sought to tax Rs 67.2 lakh in the hands of Khan.

According to Ghosh, tax treaties entered into with UK, US and Canada contain similar wordings as the India-UAE tax treaty . “So they should be doubly careful and must include the rental income in the I-T return they file in India. They can claim a credit for taxes paid in such other country , as per the provisions of the relevant tax treaty,“ Ghosh added.

Tax Deduction at Source (TDS)

Head of religious congregation to certify names

No TDS for nuns, priests, monks, rules Madras HC, Dec 24, 2016: The Times of India


In an important ruling, the Madras HC has said no tax could be deducted at source from the salaries and other monetary benefits of persons who are members of religious congregation ­ such as nuns, monks and priests.

Justice T S Sivagnanam, passing orders on a batch of 74 writ petitions, further said it would be sufficient if the head of the institution concerned certifies the names of staff members.

The order has offered immediate relief to nunsfatherspriests working in various teaching institutions, established and administered by religious congregation such as Institute of the Fransican Missionaries of Mary , which was one of the 74 petitioners.

They had moved the court after the I-T department passed an order on October 7, 2015 saying catholic nuns among teaching and non-teaching staff in these institutions were liable for TDS.


Penal interest can be waived in some cases

Taxmen can waive TDS-related penal interest in some cases, March 27, 2017: The Times of India 

The Central Board of Direct Taxes (CBDT) in its circular issued on March 24 has empowered tax authorities to reduce or waive penal interest for non-deduction of tax at source (TDS) in certain circumstances, including owing to a retrospective amendment in law.

Interest can also be reduced or waived where tax could not be deducted as the books of a taxpayer were seized in a search operation.

CBDT's circular will also apply where tax was not deducted or deducted at a lower rate on payments made to non residents, and the matter was settled under the mutual agreement procedure between the authorities of the two countries, under the relevant tax treaty . To avail of this benefit, the taxpayer would be required to pay the principal tax sum demanded or make arrangements to pay the same. However, restrictive conditions in this order are unlikely to benefit taxpayers in indirect transfer cases, say experts. Vodafone International Holdings, for instance, faces a demand of Rs 14,200 crore, which, according to the income-tax department, is due to the $ 11-billion acquisition of Hutchison's India telecom business. Tax authorities had held that Vodafone ought to have deducted tax in India, even if the sale carried outside India was of shares of a non-resident company , as it related to an asset in India (telecom business in India).

To avail of the benefit of a waiver on interest (either partial or full), the condition imposed by CBDT is that the taxpayer did not deduct tax at source owing to a favourable high court order. Subsequently owing to an SC order on a retrospective amendment, it became liable to deduct tax at source. “The circular will have very limited applicability and usefulness in an indirect transfer tax kind of situ ation (where retrospective amendment was made in the I-T Act) as no positive jurisdictional high court decision on the subject as such is available on which reliance could have been placed by taxpayers,“ says Punit Shah, partner, Dhruva Advisors.

The reasoning is simple.Vodafone won a favourable decision from the Supreme Court on January 20, 2012. A month later, the Finance Bill, 2012, through a retrospective amendment made indirect transfers taxable in India. Thus, there is only a window of approximately one month available to taxpayers to have relied on a favourable decision of the Supreme Court and not deducted tax at source.This limits applicability of the CBDT circular, says a corporate counsel.

Reliefs on tax

Education loans to study abroad

The Times of India, Dec 02 2015

Lubna Kably

Tax relief valid on edu loans to study abroad

In good news for parents whose children study overseas or plan to do so, the Pune income-tax appellate tribunal has held that higher education abroad is no bar for claiming tax relief on educational loans. A deduction for interest paid on such loans will be allowed from the taxable income of a parent, who has taken the loan and is paying interest, even if the child is studying overseas.

However, such a loan must be taken from either financial institutions, banks or from government-approved charitable institutions. Though Section 80E of the I-T Act states a parent is eligible for claiming tax relief on such loans, it has often been a ground for dispute during tax assessment. The term `higher education' has been defined in Section 80E of the I-T Act as: “Any course of study pursued after passing the senior secondary examination (SSE) or its equivalent from any school, board or university recognised by the central government, state government, local authority or any recognised authority .“

“This section does not specify that higher education must be undertaken by the student in India or that the overseas course must be approved by authorities in India. The only requirement is that such higher education should be undertaken by the student after passing SSE or its equivalent from a recognised institution in India,“ says Parizad Sirwalla, tax partner, KPMG.

Even in this case of Nitin Shantilal Muthiyan, which came for hearing before the Pune tribunal, the tax officer had held that deduction under Section 80E is allowable only in cases of higher education pursued in India. He, thus, disallowed the claim of interest of Rs 73,125 made by the taxpayer whose son, who had completed his BE in Electronics from Pune University, was pursuing a course at George Washington University , US. At the first stage of appeal, the commissioner of I-T (appeals) also upheld the action of the tax officer.

The taxpayer then filed an appeal with the income-tax appellate tribunal (ITAT) and obtained a favourable order. The ITAT in its order observed: “Provisions of Section 80E do not contain any stipulation that the higher education should be pursued only in India. If the intent of the legislation was that education should be pursued in India, in order to avail of the interest deduction, it would have stated so. Further, the taxpayer's son had completed SSE or its equivalent, as is required by this section, before pursuing studies overseas.“ Thus, the ITAT allowed the interest deduction claim made by the father during financial year 2008-09.

“The ITAT's decision is welcome, particularly in light of the spiralling cost of overseas education, and more and more Indian students opting for higher studies overseas. In terms of applicability of the decision, an ITAT's decision is binding within its jurisdiction, but carries precedent value in similar disputes for other jurisdictions, which are outside its purview,“ adds Sirwalla.

Shares

Premium on shares not taxable: HC

In a relief to global energy and petrochemical giant Shell, the Bombay high court on Tuesday ruled that the firm is not liable to pay tax in a transfer pricing case of 2009-10. The potential tax demand on Shell by the I-T authorities was $240 million. The ruling comes after Vodafone’s recent win in the HC in a similar case. The I-T authorities in Mumbai had alleged that there was underpricing of shares which the company had issued to an overseas group entity Shell Gas BV in March 2009.

The company said it had issued 87 crore shares at Rs 10 per share, but the I-T department assessed the value at Rs 180 per share and said there was thus a Rs 15,000-crore under pricing in the transaction, an amount on which tax could be levied. The Bombay HC has now held that these share premiums are not taxable. In case of Vodafone, the HC had then held that issuance of shares in a capital financial transaction did not amount to taxable income. The cellular service major had challenged an order of Income Tax authority in a transfer pricing case.

Several global giants are involved in transfer pricing litigation with the government, whose stand has been criticized.

Investors have been critical of the way the tax department went about slapping notices over the past few years.

“We welcome the High Court decision. Shell has always maintained that equity infusion by a foreign parent company into an Indian subsidiary cannot be taxed as income,’’ said a Shell spokesperson after the verdict was pronounced. “ This is a positive outcome which should provide a further boost to the Indian government’s initiatives to improve the country’s investment climate”.

Small businesses, professionals

Presumptive tax scheme

The Times of India, Mar 02 2016

Surya Bhatia

For small biz & professionals, a way to save money, and a tax headache

The Budget presented for 2016-17 has come under fire for the move to tax EPF but there's one proposal that is sure to bring cheer to small businesses and professionals, and that's the presumptive tax scheme. This scheme covers small businesses with gross turnover up to Rs 2 crore -up from the existing ceiling of Rs 1 crore. It has also been extended to professionals with gross income up to Rs 50 lakh.

So what exactly is presumptive taxation?

As per Section 44AA of the Income-tax Act, 1961, a person engaged in business is required to maintain regular books of account. However, a person adopting the presumptive taxation scheme can declare income at a prescribed rate of 8% and, in turn, is relieved from the tedious job of maintaining books of account.

However, in case income earned is at a rate higher than 8%, then the higher rate can be declared.

And with the inclusion of professionals, a new Section 44ADA is proposed to be inserted in the Act to provide for estimating the income of an assessed who is engaged in any profession referred to in sub-section (1) of Section 44AA such as legal, medical, engineering, architecture, accountancy, technical consultancy, interior decoration or any other profession as is notified by the board in the official gazette and whose total gross receipts does not exceed Rs 50 lakh in the previous year. For the purpose, 50% of the total receipts of the professional during the financial year will be considered as profit and get taxed under the income-tax head “profits and gains of business or profession“.

If you look at the table, it's clear that the assessee not only saves on record-keeping headaches, he also saves a considerable amount in taxes. Yes, there can be a few counters to this -mainly that the taxable income could be much below the presumptive taxation rate of 8% and 50% of receipts respectively . And if that is the case then the individual has no option but to maintain the books of accounts.

To further keep the compliance burden minimum, those using presumptive taxation scheme are also allowed to pay advance tax by March 15 of the financial year, as against the normal practice of paying the advance tax in four installments.

However, the taxpayer needs to be careful when opting for this as he or she has to remain in that scheme for 5 years to avail the benefits.

TDS (tax deducted at source)

Online rectification in ITR simplified, 2015

The Times of India, Dec 10, 2015

I-T Dept simplifies online rectification of TDS in ITR

The finance ministry said a new facility has been provided for pre-filling of TDS schedule


Aimed at making life easier for tax payers, the I-T department today said it has simplified the process of online rectification of incorrect details of tax deducted at source (TDS) filed in the income tax return (ITR). Earlier, taxpayers were required to fill in complete details of the entire TDS schedule while applying for rectification on the e-filing portal of the I-T Department.

To avoid this, the finance ministry said a new facility has been provided for pre-filling of TDS schedule while submitting online rectification request on the e-filing portal to facilitate easy correction or updating of TDS details. "This is expected to considerably ease the burden of compliance on the taxpayers seeking rectification due to TDS mismatch," an official statement said. Errors due to incomplete TDS details in rectification applications were leading to delays in processing of such applications, thereby causing hardships to taxpayers, it added.

See also

Direct taxes: India

Income Tax India: Expert advice

Income Tax India: Laws

Income Tax India: NRIs

Income Tax, India: Statistics: this page includes historical details of income tax rates and tax exemption limits over the years; how many Indians pay I Tax; how the income of women has risen over the years; the extent of tax arrears...

Wealth tax: India

Yog(a): history; legal and administrative issues

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