This publication highlights SKP s expectations from the Budget.

Transcription

1 The Union Budget has expectations soaring with tax reforms such as GST taking centre stage of most debates and discussions. The industry has been optimistic that this Budget would feature business-friendly policies that will reform the Indian business scenario. Finance Minister, Arun Jaitley has been entrusted with the colossal task of presenting a Budget that meets the skyhigh expectations of the industry. This publication highlights SKP s expectations from the Budget.

2 Disclaimer This SKP Budget Wish List contains general information existing at the time of its preparation only. It is intended as a news update and is not intended to be comprehensive nor to provide specific accounting, business, financial, investment, legal, tax or other professional advice or opinion or services. This budget update is not a substitute for such professional advice or services, and it should not be acted on or relied upon or used as a basis for any decision or action that may affect you or your business. Before making any decision or taking any action that may affect you or your business, you should consult a qualified professional adviser and also refer to the source pronouncement/documents on which this budget update is based. It is also expressly clarified that this budget update is not a solicitation or an invitation of any sort whatsoever or a source of advertising from SKP Group or any of its entities to create any adviser-client relationship. Whilst every effort has been made to ensure the accuracy of the information contained in this budget update, this cannot be guaranteed, and neither SKP Group nor any related entity shall have any liability to any person or entity that relies on the information contained in this publication. Any such reliance is solely at the user's risk.

3 About Us SKP is a long established and rapidly growing professional services group located in six major cities across India. We specialise in providing sound business and tax guidance and accounting services to international companies that are currently conducting or initiating business in India as well as those expanding overseas. We serve over 1200 clients including multinationals, companies listed on exchanges, privately held and family-owned businesses from more than 45 countries. From consulting on entry strategies to implementing business set-ups and M&A transactional support, the SKP team assists clients with assurance, domestic and international tax, transfer pricing, corporate services, and finance and accounting outsourcing matters, all under one roof. Our team is dedicated to ensuring clients receive continuity of support, across the business lifecycle. Our clients value our collaborative approach. Right from inception, SKP s founders have emphasised the importance of professional standards and personalised service; and to this day, we continue to reflect this progressive mindset by serving our clients with integrity, delivering high quality, innovative results. Our ability to easily identify, confront and resolve a variety of issues and concerns for our clients comes from our years of experience across a wide range of industries and geographies, combined with a versatile group of professionals and a multi-disciplinary team. SKP 360 Our mindset is that of a partner, not a service provider. Our approach is holistic, often leading to innovative and ground-breaking solutions. Our objective is to provide the best solution, even if it means going beyond the defined scope of work Our approach towards our clients is simple we look at ourselves as your partners and not just service providers. This frame of mind allows us to work in your best interests, leaving no stone unturned in ensuring that even the most complex assignment is handled as seamlessly as possible. We place utmost importance on and strive to learn every client s unique challenges by providing personalised attention, thus arriving at relevant and innovative solutions. At SKP, we explore and examine all aspects of a situation, often delving into issues beyond the defined scope of work. We are your 360-degree-solution-providing partner 3

4 SKP Tax SKP s tax practice focuses primarily on understanding the client s business objectives. This personalised business knowledge along with an in-depth understanding of tax and regulatory policies form the basis of the effective analysis, advice and services we offer to our Indian and international clients, from registration and compliances to appeals and litigation support. Our team of over 150 members, led by four Partners, offers practical and innovative solutions considering the tax and non-tax factors for a wide range of transactions. These may include corporate expansion, acquisitions, expatriate relocation, turnkey contracts, formulation of intra-group transfer pricing policies, tax feasibility studies and tax impact analysis. Our custom-designed tax solutions help clients address the multiple tax demands of the current business scenario while staying focused on their growth plan. Our Achievements Listed among the leading tax firms in India in International Tax Review s World Tax directory (A Euromoney publication) consecutively for seven years from 2009 to 2015 Listed among the leading Transfer Pricing firms in India in TPWeek s World Transfer Pricing guide in 2014 and 2015 Nominated by Euromoney for Asia Tax Awards 2010 for India Tax Litigation Firm of the Year and India Tax Case of the Year Knowledge partners with prestigious organisations such as NASSCOM, CII and other bilateral chambers of commerce Our indirect taxation team has trained over 1000 government employees to prepare for GST Our team assists the Maharashtra VAT Panel with changes required in information technology for the implementation of GST 4

5 Direct Tax Tax risk management and mitigation are extremely critical to businesses in India. SKP can collaborate with you in various ways right from identifying and assessing tax risks to designing controls, monitoring and evaluation. We provide advisory, compliance and litigation support for domestic tax, international tax, foreign portfolio investors (FPIs), offshore tax and expatriate tax. Offering advice and innovative solutions Inbound and outbound investment structuring International contract structuring for EPC contracts Transaction advisory and planning for mergers, acquisitions and corporate reorganisation Expatriate deputation FEMA and exchange control Managing compliances Withholding tax Lower tax deduction certificates Foreign company s tax returns Corporate tax returns (including foreign compliances) FII/FPI tax Expatriate tax returns Inbound and outbound exchange control compliances Mitigating risk Due diligence and preparation for due diligence Withholding tax review Review of internal controls and processes related to tax, especially withholding tax FEMA diagnostic review and health check Defending before tax authorities Representation in scrutiny and Appellate proceedings Assistance in review of submissions and other filings before tax authorities Assistance in obtaining refunds Compounding applications Offshore payroll and tax compliances We provide the following services for operations in the United Kingdom, South Africa, Australia, Singapore and India: International payroll processing in accordance with local laws Collection and maintenance of documentation ESOP tax compliances including annual returns Technical advice in designing an optimal salary structure and benefits package Employee policy from a tax and social security tax-saving perspective General ledger management Branch accounting Corporate income tax Company law/secretarial compliance 5

6 Wish List The industry expects that this second budget of the newly elected government will be a reformist budget. Recently, the government has initiated movements like 'Make in India', the red carpet for global investors and Prime Ministerial meetings with various Heads of States to strengthen bilateral trade relations. With expectations soaring, it would be interesting to see if the budget meets the expectations of everyone including non-residents willing to invest in India. In the upcoming budget, we hope to see appropriate measures taken to clear the air of uncertainty associated with Indian tax laws. In the ensuing paragraphs we discuss our wish list for the Budget A. Corporate Taxation Computation of taxable income The rate of Minimum Alternate Tax (MAT) should be reduced to 10% from the existing rate of 18.5% for Micro and Small Enterprises (MSMEs), Special Economic Zone (SEZ) developers and and units in SEZs. Goodwill arising on amalgamation should be made eligible for depreciation in accordance with the judgment of the Supreme Court of India. Tax treatment of Corporate Social Responsibility (CSR) expenditure should be explicitly clarified in the law, though the intention of the government appears to consider CSR expenditure as not tax deductible. Payment of employees' contribution to provident fund should be tax deductible if it is paid till the due date of filing the return of income, similar to the payment of the employer's contribution to provident fund. Provisions relating to taxation of excess premium received for shares issued to Indian tax residents should be liberalised since valuation is a highly subjective exercise. Indirect transfer of shares of a foreign company by a non-resident attracts tax in India if the shares transferred derive 'substantial' value from assets located in India. The term 'substantial value' should be clearly explained in the law. Assets costing less than INR 5,000 should be allowed as revenue expenditure. To support the automobile sector, accelerated depreciation should be allowed for motor vehicles. It should be explicitly clarified that surcharge and education cess will not be levied on tax rates provided by the Double Taxation Avoidance Agreements (DTAA). Tax incentives The present limit of investment in plant and machinery of INR 250 million for claiming Investment Allowance should be reduced to INR 100 million to provide benefits to small manufacturers. Income based tax benefits should be provided to MSMEs, in the first three years of operations. Currently, the conversion of a company into a Limited Liability Partnership is tax neutral if the turnover of the company in any of the last three years does not exceed INR 6 million. This limit of INR 6 million is too low and should be increased to INR 50 million. The rate of tax for royalty and fees for technical services should be reduced to 15% from the existing rate of 25% to bring it in line with most of the DTAA entered into by India. Weighted deduction for expenditure on scientific research should be deductible for computation of MAT. TDS (Withholding tax) related measures The threshold for TDS deduction on commission should be increased to INR 30,000 from the existing limit of INR 5,000. The liability to deduct TDS should not be attracted on the provision for expenses created during the year for management reporting purposes. In cases where payments are made during the year without deduction of TDS, certain Courts have held that the relevant expenditure cannot be disallowed. The legislative intent in this regard should be explicitly clarified. The time limit for filing of TDS returns should be extended to one month from the end of the quarter as against the present time limit of 15 days from the end of the quarter. Interest on delayed deduction/deposit of TDS should be calculated on a 'number of days' basis instead of calculations on a monthly basis. For payments made outside India after deduction of TDS, a mechanism should be provided for generation of TDS certificates in cases where the receiver does not have a Permanent Account Number (PAN). Presently, if the TDS is not deposited by the deductor or is not correctly in his TDS returns, credit for TDS is not allowed. A mechanism should be laid down wherein the taxpayer can compel the deductor to deposit the TDS or rectify its TDS returns. 6

7 B. Taxation for non-residents The tax rate applicable to foreign companies (which is 40%) needs to be brought at par with the rate applicable to domestic companies (which is 30%). However, to stimulate growth and boost the Indian economy, the overall tax rates for corporates need to be reduced from 30% to 20%-25%. Currently, taxability in the hands of a foreign company arises if the shares of the foreign company, which derive 'substantial' value from assets located in India, are transferred. An appropriate percentage of value of assets which will be treated as 'substantial' value of assets should be defined. By defining a threshold for such transfers, litigation in genuine cases of transfers would be avoided. Clarifications are required on aspects such as withholding tax, tax credits, etc. on (i) indirect transfers and (ii) the transactions which are chargeable to tax in India when both the parties are non-residents. Presently, the concessional rate of taxation on dividends (i.e. 15% instead of 30%) received from foreign subsidiaries is available only to Indian companies. Recently, the Reserve Bank of India has permitted Limited Liability Partnerships (LLPs) to invest overseas. In light of this development, similar benefits should be extended to the dividend received by such LLPs from their overseas investments. The General Anti Avoidance Rules (GAAR) is proposed to be effective from 1 April However, in order to clear uncertainty in the tax regime and invite foreign investment, the implementation of GAAR should be deferred by two years i.e. made effective from 1 April Further, currently, a taxpayer is not considered a defaulter for non-deduction or short-deduction of taxes with respect to payments made to a resident, where the resident pays taxes on that income, files a tax return for this income and furnishes a certificate from an accountant. Similar benefits should also be extended to payments made by a taxpayer to a non-resident, subject to compliance of the conditions prescribed. The CBDT should also clarify the nature of the above mentioned provisions on whether it would be applicable prospectively or retrospectively in order to avoid litigation in this matter. There should be explicit provision on the non-applicability of MAT provisions for Foreign Portfolio Investors (FPI) and Foreign Institutional Investors (FII) as they are not required to maintain their books of accounts in India. Reduction in the Securities Transaction Tax (STT) rates is required to encourage inflows in capital markets. As per the current tax law, every company with a Permanent Account Number (PAN) is required to file a tax return in India. For administrative convenience, a threshold limit should be prescribed for foreign companies whereby they are not required to file the tax return in India with respect to income taxable at special rates (royalty, fees for technical services, etc.) where appropriate taxes have been withheld on the same. Alternatively, the government should prescribe separate forms for non-residents earning any special income such as royalty, fees for technical services, or interest in certain cases. Further, the tax rate on royalty payments and fees from technical services should be brought down from 25% to 10-15% (i.e. in line with most of the tax treaties signed by India). For liaison offices of foreign companies, clarification is needed on whether return of income is required to be filed in addition to Form 49C. Further, due to automation of various processes by the Indian revenue authorities, various FPIs and foreign companies including liaison offices in India have started receiving defective notices from the CPC for failing to update profit and loss accounts and balance sheets in the return of income. Clarification is required if liaison offices, FPIs or foreign companies who offer tax on gross basis or who file 'NIL' returns are also required to give details in relation to their profit or loss statements and balance sheets in India. The uncertainty over the renegotiation of the India-Mauritius Double Taxation Avoidance Agreement has adversely affected the inflow of new foreign investors into the Indian stock markets. The government must soon end this impasse and conclude the renegotiation process fairly and amicably. The government should apply the law on taxability of indirect transfer of shares prospectively. This government has greatly emphasised on infrastructural development. For this purpose, usually a consortium is formed to carry out specific infrastructure projects which inter-alia includes some foreign companies as well. Currently, tax authorities treat it as an 'Association of Person' (AOP) and a portion of the income could get taxed at 40% due to the involvement of foreign companies. The government should clarify the position in this regard based on several favourable judicial precedents that this development does not constitute an AOP. C. Personal Taxation Standard deduction should be re-introduced for salaried employees. Present exemption limits for allowances such as conveyance allowance, children education allowance, etc., are too low and should be suitably increased. 7

8 Deduction of interest on borrowed capital for self-occupied house property should be increased to INR 250,000 from existing limit of INR 200,000. The limit for deduction under section 80C should be raised to INR 200,000 from the existing limit of INR 150,000. The exemption for leave travel concession should be provided once a year, as against the current exemption of two visits in four calendar years. The term 'calendar year', here, should be replaced by 'financial year'. Section 80GG provides deduction for rent where the taxpayer does not avail the House Rent Allowance. The limit of deduction under section 80GG should be increased to INR 10,000 per month from the existing limit of INR 2,000 per month. D. Other Aspects Sections 269SS and 269T should explicitly clarify that loans/deposits given through electronic modes of transfer (e.g. RTGS, NEFT) and genuine transactions of loans and deposits given/settled through book entries should not be liable for penalty. Basic exemption for wealth tax should be increased from INR 3 million to INR 10 million. Motor vehicles used for business purposes should be exempted from wealth-tax. A time limit should be set for disposal of appeals by the Commissioner of Income-tax (Appeals) and Income-tax Appellate Tribunal and for passing orders for giving effect to appellate orders. Filing the return of income using a digital signature requires physical token of the digital signature. This process creates administrative hurdles and a suitable mechanism should be provided to ease this difficulty. Foreign companies, which do not have a bank account in India face difficulties in obtaining tax refunds. A mechanism should be introduced to enable these companies to receive tax refunds in their overseas bank accounts. Threshold limit for filing applications for Advance Ruling for resident taxpayers should be reduced to INR 500 million from the existing limit of INR 1 billion. 8

9 Transfer Pricing SKP s transfer pricing team offers a full range of transfer pricing services, independent advice, and solutions for domestic and global multinational enterprises. Our services are designed to achieve your business objectives and assist you in navigating through the labyrinth of transfer pricing regulations. Offering advice and innovative solutions Devising global transfer pricing policies Tax-effective supply chain management and cash repatriation planning Managing compliances Global and local country documentation reports Benchmarking studies on Indian and global databases Issuing transfer pricing certificates Mitigating risk Existing policy and documentation review Transfer pricing and due diligence Ongoing implementation, management and monitoring of transfer pricing arrangements Defending before tax authorities Representation in scrutiny, DRP and Appellate proceedings Advance Pricing Agreements (APA) and Mutual Agreement Procedure (MAP) Wish List Transfer pricing has been at the core of tax litigation in India in the past few years. All of the cases that have made headlines in Indian taxation news, have involved transfer pricing issues. The new government showed its resolve to reduce litigation on transfer pricing and provide certainty on the same by bringing in significant amendments in the last Budget. Additionally, while the statements from the Prime Minister and Finance Minister promise a more tax adversarial regime, we expect that the transfer pricing regulations are fine tuned and that clarity and guidance on certain aspects are provided. Our expectations from the Budget are as follows: A. Detailed rules and guidance to taxpayers Provide rules and practical guidance on the use of multiple-year data and range concept, which were already introduced in the previous Budget. Notify detailed rules regarding roll back applicability for Advance Pricing Agreements (APAs). These provisions were introduced through the Budget , however rules are still awaited. Provide clear guidance in terms of valuation methodologies to be adopted for arriving at the arm's length price for financial transactions such as loans and guarantees. For valuation of intangibles, prescribe detailed valuation norms and methodologies on an income-based approach or a discounted cash flow method. Provide guidance for benchmarking transactions of royalty and management fees along with specifications of the documentation to be maintained for supporting it. Provide proper guidance along with examples for computation of various economic adjustments such as working capital adjustment, risk adjustment, capacity adjustment, etc. Provide guidance on transfer pricing implications relating to the issue of marketing intangibles or Advertisement, Marketing and Promotion (AMP) expenses, specially guidance with respect to what constitutes AMP expenses, what is considered as brand development, selection of comparables and application of the Bright Line Test. Also, an industrywise safe harbour for advertisement, marketing and sales promotion expenses would be of much help. 9

10 B. Legal amendments to rationalise the transfer pricing provisions Transfer pricing provisions should not be applicable to share issue and other similar transactions (where there is no income arising) in line with the Bombay High Court's decision in the case of Vodafone Services India Pvt Ltd. Though the government has issued a press release accepting the Bombay High Court's judgement, a clear amendment in the law will go a long way in restoring investor confidence and reducing litigation. The threshold of INR 10 million for maintaining mandatory documentation for international transactions with associated enterprises should be increased to INR 50 million. Recognise by way of amendment, that the regulations of business strategies and business considerations should be given prime importance while deciding whether a transaction is at arm's length or not. Guidance should be taken from the OECD Guidelines in this respect. Converge and align the Customs and Transfer Pricing Regulations, specially the methodologies applied for determining the arm's length price/fair market value of import payments made to overseas group companies by their Indian counterparts. Domestic Transfer Pricing Increase the existing threshold of INR 50 million to INR 500 million for making the transfer pricing provisions applicable to the specified domestic transactions. Transaction of directors' remuneration should be removed from the purview of domestic transfer pricing or at least nonshareholder directors' remuneration should not be subject to transfer pricing. Domestic transfer pricing provisions should not be applicable to domestic entities in a tax-neutral scenario i.e. in cases where taxes have been paid at maximum marginal rate by either of the related parties. Extend the APA program to specified domestic transactions, at least for high value transactions. Safe harbour provisions - bringing in rationality The current operating margins expected from the transactions covered under safe harbour are on the higher side, the government should relax the mark-up percentages. Extend the safe harbour regulations to include services such as investment advisory services, marketing support services, and captive R&D services other than R&D in IT. Provide relaxation in maintenance of documentation for taxpayers fully covered and opting for safe harbour as it leads to an unnecessary compliance burden and increases costs. C. Tax administrative aspects Dedicated benches of the Income Tax Appellate Tribunal (ITAT) should be introduced/enhanced to adjudicate pending transfer pricing cases. Steps should be taken to address the huge back-log of transfer pricing cases. Allow the due cognisance of international guidance wherever the Indian regulations are silent or do not provide the necessary guidance on particular transfer pricing issues. Withdraw rights given to the Assessing Officer (AO) to appeal against the directions of the Dispute Resolution Panel (DRP) as it defeats the purpose of the introduction of the DRP. Similarly, the rights of revision provided to the Commissioner under Section 263 should be curtailed in cases of directions issued by DRP. Steps should be taken to strengthen the administrative mechanism of APAs to deal with the overwhelming response from taxpayers and concluding APAs promptly. Enable taxpayers to file bilateral APAs, in the absence of a clause for the provision of a corresponding adjustment in tax treaties. 10

11 Indirect Tax and Goods and Services Tax SKP s indirect taxation team offers a full range of indirect tax services from independent business advisory, business structuring in line with the current indirect tax regime, assistance in indirect tax compliances and business change management analytics to help you with the smooth implementation of GST. Our services are aimed at supporting businesses to run efficiently while simultaneously incorporating the proposed GST regime. Offering advice and innovative solutions Implications of the proposed transaction VAT, service tax, customs duty and excise duty Advisory on EPC contracts Possibility of availing various incentives offered under the Foreign Trade Policy and SEZ legislation Review of financial bids Conducting a diagnostic review of operations Managing compliances Registration Obtain approvals for STPI, EOU, SEZ, etc. Computing tax liability under service tax, VAT/CST and excise duty Preparing and filing returns under service tax, VAT/CST, excise duty, etc. Mitigating risk Due diligence and preparation for due diligence Review of internal controls and processes for claiming input and CENVAT credits Health check and diagnostic reviews Defending before tax authorities Representation in scrutiny and Appellate proceedings Filing refund/rebate claim Service Tax, Value Added Tax and Special Additional Duty Assistance in review of submissions and other filings before tax authorities Wish List The Winter Session of Parliament, 2014, witnessed the introduction of the 122nd Constitutional Amendment Bill (CAB). The 122nd CAB initiated the process of introducing Goods and Services Tax, the single biggest indirect taxation reform in India post Independence. The Union Budget has raised the expectations of the industry on account of various reasons, including being optimistic with the 'Make in India' campaign. In the upcoming budget, we hope to see appropriate steps being taken to provide much needed clarity in the following identified areas: A. Goods and Services Tax (GST) Introduce the draft GST legislative framework, including the 'Place of Supply Rules', in the public domain for debate and discussion Announce the roadmap for implementation of GST Provide clarity on the date of implementation of GST Declare details of the compensation package promised to State governments B. Service Tax Restore the definition of 'intermediary services' as it existed before 1 October 2014, or make the 'Place of Provision' of such services recipient based Bring greater clarity on the taxability of Intellectual Property Rights to avoid double taxation Permit filing of multiple revised returns Grant a refund of unutilised CENVAT credit at the time of closure of a business Provide clarity on the treatment of CENVAT credit for Deemed Exports 11

12 Provide relaxation of payment of service tax in the event of bad debts or allow self-adjustments for future liability Provide clarity on the applicability of service tax on 'sharing of expenses' between associated companies where reimbursements are made on an actual basis Bring uniformity in the percentage at which a service provider or service recipient is liable to pay taxes under the Partial Reverse Charge Mechanism for a consistent and simpler tax regime Extend the threshold exemption to assessees paying service tax under the Reverse Charge Mechanism including the Partial Reverse Charge Mechanism Reduce the rate of interest on delayed payment of service tax from the present 24/30% per annum to 18% per annum, if the delay in payment is beyond six months/one year respectively C. Excise Duty Revise the current SSI exemption to INR 30 million Remove inverted duty structures for Active Pharmaceutical Ingredients Increase the abatement on the levy of excise duty on pharmaceuticals products Provide concessional excise duty on capital goods, consumer durables and products in the automotive sector Streamline excise returns and remove redundant excise returns D. CENVAT Credit Make CENVAT credit seamlessly available by restoring former definitions relating to inputs, input services and capital goods as prevailing before 1 April 2011 Eliminate or extend the time limit of six months for availing CENVAT credit Reinstate the facility of transferability of CENVAT credit by one unit of a Large Taxpayer Unit to another Provide clarity on the eligibility to avail full CENVAT credit paid on capital goods in the year of receipt of capital goods Prescribe a time limit for processing refund claims filed and provide for automatic payment of interest for delayed refunds E. Customs Duty Remove customs duty on all life saving drugs Remove customs duty on capital goods required for R&D services in the pharmaceutical sector Introduce legal provisions relating to the Special Valuation Branch (SVB) procedures and prescribe a time limit for the same Continue reforms of inverted duty structures wherein the rate of customs duty on imported raw materials is more than the imported final product Reduce the rate of Special Additional Duty (SAD) from 4% to the rate of Central Sales Tax (CST) i.e. 2% and grant upfront exemption from SAD on goods imported for resale Reduce customs duty on gold Reduce import duty on iron ore till the domestic production of iron ore and its demand-supply gap is bridged Increase the demurrage period available to importers for storage of goods in the premises of the custodian from three days to five days Increase the interest-free warehousing period for goods imported F. Litigation Reduce the backlog of litigation by introducing Tribunal benches and filling vacancies in the Tribunal Withdraw the provision of a mandatory pre-deposit on filing an appeal before the Commissioner (Appeals) and Tribunal and introduce a merit based pre-deposit provision Make Advance Ruling available even to ongoing activities which are not under litigation G. Central Sales Tax Reduce CST to 1% to phase it out at the time of GST 12

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