13 ASSESSMENT OF VARIOUS ENTITIES

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1 13 ASSESSMENT OF VARIOUS ENTITIES AMENDMENTS BY THE FINANCE ACT, 2015 (a) Special Taxation Regime for Investment Funds [Sections 115UB & 10(23FB)] Related amendment in sections: 115U, 139 & 194LBB (i) (ii) Section 10(23FB) exempts any income of a Venture Capital Company (VCC) or Venture Capital Fund (VCF) from investment in a Venture Capital Undertaking (VCU). Further, as per section 115U, income accruing or arising or received by a person out of investment made in a VCC or VCF shall be taxable in the like manner as if the person had made direct investment in the VCU. In effect, under sections 10(23FB) and 115U, a tax pass through status (i.e. income is taxable in the hands of investors instead of VCF/VCC) is available to such funds which satisfy the investment and other conditions as are provided in SEBI (Venture Capital Funds) Regulations, Further, these sections provide a pass through status only in respect of income which arises to the fund from investment in VCU, being a company which satisfies the conditions provided in SEBI (Venture Capital Fund) Regulations, (iii) The SEBI (Alternative Investment Funds) Regulations, 2012 (AIF regulations) have replaced the SEBI (Venture Capital Fund) Regulations, 1996 (VCF regulations) from 21st May, Therefore, the AIF Regulations now regulate all privately pooled investment vehicles which collect funds from investors for investments in accordance with a predefined investment policy for the benefit of its investors AIF can be a fund established or incorporated in the form of a trust, company, LLP or body corporate. The AIF Regulations cover a much wider ambit of funds and categorize them into broadly three categories: Category I AIF comprises of funds which invest in start-up or early stage ventures or social ventures or SMEs or infrastructure or other sectors or areas which the government or regulators consider as socially or economically desirable. Category I AIF presently has 4 sub-categories, namely, venture capital funds, SME Funds, social venture funds and infrastructure funds. Investment norms have been prescribed for each of the sub-categories to ensure that the fund allocates substantial majority of its capital to the target focus. The stated intent of Category I AIF is to cover AIFs that are generally perceived to have positive spillover effects on 113

2 economy and for which the SEBI/ Government/ other regulators might consider providing incentives or concessions. Category II AIF is a residual category and covers AIFs for which no specific incentives or concessions are given by the Government/other regulators. Category II AIF will cover classic private equity funds and debt funds. Such funds do not undertake leverage or borrowing other than to meet day-to-day operational requirements. Category III AIFs are AIFs which employ diverse or complex trading strategies and may employ leverage including through investment in listed or unlisted derivatives. Category III AIF will cover hedge funds or funds which trade with a view to make short term returns or such other funds which are open ended. As in the case of Category II AIFs, no specific incentives or concessions are given by the Government/other regulators. (iv) The Finance Act, 2013 had granted pass through status to only the Venture Capital Fund, being a sub-category of Category I AIFs, with a corresponding direct tax charge on the investors. The benefit was available to only such AIFs which are established as a trust or a company. Further, the Income-tax Act, 1961 required compliance of three conditions by such AIFs, in order to be covered within the ambit of exemption under section 10(23FB). (v) The tax implications on account of the amendment by the Finance Act, 2013 were as follows - (1) VCCs/VCFs registered prior to 21st May 2012 under SEBI (VCF) Regulations, 1996 (VCF regulations), will not be affected by the amendment and will continue to be eligible for pass through status under section 10(23FB) read with section 115U. (2) The impact on AIFs registered on or after 21st May, 2012 under AIF Regulations are summarized as follows :- Category Subcategories I VCF, being trust & VCC I SME Fund Social Venture Tax status in the event AIF is registered on or after 21 May 2012 Would qualify as VCC/VCF under section 10(23FB) but, subject to compliance of three conditions viz., 1. Shares of company/units of trust set up as an AIF are not listed on a recognized stock exchange. 2. Has invested not less than 2/3 rd of its investible funds in unlisted equity shares/equity linked instruments of VCUs 3. Has not invested in associate VCUs. Will not qualify as VCC/VCF under section 10(23FB) and consequently will not be eligible for pass through status despite being identified as socially 114

3 II III Category Subcategories Fund Infrastructure Fund Generally includes private equity and debt funds Generally includes hedge funds Tax status in the event AIF is registered on or after 21 May 2012 desirable having positive spillover effects on the economy and eligible for other concessions from Government/SEBI. Will be governed by normal provisions of taxation as applicable to relevant nature of entity. Will not qualify as VCC/VCF under section 10(23FB) (vi) In order to rationalize the taxation of Category-I and Category-II AIFs (hereafter referred to as investment fund) the Finance Act, 2015 has now provided a special tax regime. Chapter XII-F comprising section 115U, containing the special provisions relating to tax on income received from venture capital companies and venture capital funds would not apply in respect of income of a previous year relevant to A.Y , accruing or arising to, or received by, a person from investments made in a venture capital company or venture capital fund, being an investment fund. Accordingly, the taxation of income of such investment fund and their investors shall be in accordance with the special tax regime under new Chapter XII-FB which is applicable to such funds irrespective of whether they are set up as a trust, company, or limited liability partnership etc. Special Taxation Regime for Investment Funds [New Chapter XII-FB] (1) Any income accruing or arising to, or received by, a person, being a unit holder of an investment fund, out of investments made in the investment fund shall be chargeable to income-tax in the same manner as if it were the income accruing or arising to, or received by, such person had the investments, made by the investment fund, been made directly by him. This is provided in new section 115UB(1). (2) The Scheme provides for exemption under section 10(23FBA) of income, other than income from profits and gains of business, in the hands of investment fund. The income in the nature of profits and gains of business or profession shall be taxable in the hands of the investment fund. (3) Income accruing or arising to, or received by, a unit holder of an investment fund, being that proportion of income which is of the same nature as income 115

4 chargeable under the head Profits and gains of business and profession at investment fund level, shall be exempt under section 10(23FBB). (4) With effect from 1 st June, 2015, tax has to be deducted@10% on any income (other than the proportion of income which is of the same nature as income chargeable under the head Profits and gains of business or profession which is taxable at investment fund level) payable by the investment fund to a unit holder. Such tax has to be deducted at the time of credit of such income to the account of the payee or at the time of payment, whichever is earlier [Section 194LBB]. For this purpose, any such income credited to any account, whether called suspense account or by any other name, in the books of account of the person liable to pay such income, such crediting shall be deemed to be the credit of such income to the account of the payee, and the provisions of section 194LBB shall apply accordingly. (5) If in any year there is a loss at the fund level, either current loss or the loss which remained to be set off, such loss shall not be allowed to be passed through to the investors but has to be carried over at fund level to be set off against income of the next year in accordance with the provisions of Chapter VI [Section 115UB(2)]. (6) The income paid or credited by the investment fund shall be deemed to be of the same nature and in the same proportion in the hands of the unit holder as if it had been received by, or had accrued or arisen to, the investment fund [Section 115UB(3)]. (7) As per section 115UB(4), the total income of the investment fund is chargeable to tax as follows: Investment Fund A company or a firm Other than a company or a firm Rate of tax Rate or rates specified in the Finance Act of the relevant year (30% for A.Y ) Maximum marginal rate (8) Income paid by an investment fund to its unit holders would not be subject to dividend distribution tax under Chapter XII-D or tax on distributed income under Chapter XII-E [Section 115UB(5)]. (9) If the income accruing or arising to, or received by, an investment fund, during a previous year is not paid or credited to the unit-holders, it shall be deemed to have been credited to the account of the unit-holder on the last day of the previous year in the same proportion in which such person would have been entitled to receive the income had it been paid in the previous year [Section 115UB(6)]. 116

5 (10) The following table gives a summary of the above provisions: (i) Particulars Investment Fund Unit holder Income under the head Profits and gains of business or profession of the Investment Fund (ii) Income, other than profits and gains of business or profession (iii) (iv) Any loss incurred by the investment fund Dividend distribution tax and tax on distributed income Taxable Exempt. Tax to be deducted@10% on such income distributed to unitholders. To be carried forward for set-off as per Chapter VI at the Fund level Chapter XII-D and XII- E not to apply to income paid to unit holders. Exempt Taxable, as if he had directly made the investment. Not passed on to investors (11) The person responsible for crediting or making payment of the income on behalf of an investment fund and the investment fund are required to furnish, within the prescribed time, to the person who is liable to tax in respect of such income and to the prescribed income-tax authority a statement in the prescribed form and verified in the prescribed manner. Such statement should give details of the nature of the income paid or credited during the previous year and such other relevant details as may be prescribed [Section 115UA(7)]. (12) TDS provisions would not be attracted in respect of the income received by the investment fund. This would be provided by issue of appropriate notification under section 197A(1F) subsequently. (13) Every investment fund has to compulsorily file its return of income or loss under section 139(4F), if it is not required to do so under any other provision of section 139. The provisions of the Act would apply as if such return of income or loss were a return required to be furnished under section 139(1). (14) Further, the existing pass through regime would continue to apply to VCF/VCC which had been registered under SEBI (VCF) Regulations, The other VCFs, being part of Category-I AIFs, shall be subject to the new pass through regime

6 (15) It has been clarified that any income which has been included in the total income of the unit holder of an investment fund in a previous year, on account of it having accrued or arisen in the said previous year, would not be included in his total income in the previous year in which such income is actually paid to him by the investment fund. (16) Meaning of certain terms: (a) Term Investment fund Meaning Any fund established or incorporated in India in the form of a trust or a company or a limited liability partnership or a body corporate which has been granted a certificate of registration as a Category I or a Category II Alternative Investment Fund and is regulated under the Securities and Exchange Board of India (Alternative Investment Fund) Regulations, 2012, made under the Securities and Exchange Board of India Act, 1992; Example (b) Trust A trust established under the Indian Trusts Act, 1882 or under any other law for the time being in force. (c) Unit Beneficial interest of an investor in the investment fund or a scheme of the investment fund and shall include shares or partnership interests. The following are the particulars of income of three investment funds for P.Y : Particulars A B C ` in lakh Business Income 2 (2) Capital Gains (6) Income from other sources Compute the total income of the investment funds and unit-holders for A.Y , assuming that: (i) each investment fund has 20 unit holders each having one unit; and (ii) income from investment in the investment fund is the only income of the unitholder. If Investment Fund C has the following income components for A.Y , what would be the total income of the fund for that year? Business Income ` 2 lakh Capital Gains ` 9 lakh Income from other source ` 8 lakh 118

7 Answer Computation of total income of the investment fund for A.Y Particulars A B C ` Business Income Nil 2,00,000 Nil Total Income Nil 2,00,000 Nil Computation of total income of a unit holder of the following investment funds for A.Y Particulars A B C Capital Gains 80,000 70,000 - Income from other sources 20,000 20,000 30,000 Total Income 1,00,000 90,000 30,000 Notes: (i) (ii) The total income of Investment Fund B would be chargeable to tax@30% if the fund is a company or firm and at the maximum marginal rate, in any other case. In case of Investment Fund C, the business loss of ` 2 lakh is set-off against income from other sources of ` 8 lakh. Loss of ` 6 lakh under the head capital gains cannot be set-off. The same has to be carried forward by the Investment Fund for set-off in the subsequent years. (iii) For A.Y , the brought forward capital loss of ` 6 lakh can be set-off against capital gains of ` 9 lakh. Business income of ` 2 lakh would be taxable in the hands of the Investment Fund. Capital gains of ` 3 lakh (` 9 lakh ` 6 lakh) and Income from other sources of ` 8 lakh would be taxable in the hands of the unitholders. The total income of each unit holder for A.Y would be ` 55,000, comprising of Capital gains = ` 15,000 [i.e., ` 3 lakh/20] Income from other sources = ` 40,000 [i.e., ` 8 lakh / 20] (b) Special Taxation Regime for business trusts [Section 115UA] Related amendment in sections: 10(23FCA), 10(38), 111A, 194LBA(3) & 194-I (i) The Finance (No.2) Act, 2014 had inserted Chapter XII-FA providing for a special taxation regime in respect of business trusts. (ii) Section 2(13A) was inserted to define a business trust as including a Real Estate investment Trust (REIT) or an Infrastructure Investment Trust (InviT) which is ` 119

8 registered under regulations framed by Securities and Exchange Board of India (SEBI) and notified by the Central Government. (iii) Existing Tax Regime for Business Trust The existing tax regime for the business trust and their investors as contained in different sections of the Income-tax Act, 1961 inter alia, provides that:- (1) The listed units of a business trust, when traded on a recognised stock exchange, are liable to securities transaction tax (STT), and consequently, the long term capital gains is exempt under section 10(38) and the short term capital gains is taxable at the rate of 15% under section 111A. (2) In case of capital gains arising to the sponsor at the time of exchange of shares in Special Purpose Vehicle (SPV), being the unlisted company through which income generating assets are held indirectly by the business trusts, with units of the business trust, the taxation is deferred. (3) The tax on such capital gains is leviable at the time of sale of units by the sponsor. (4) However, the preferential capital gains regime (consequent to levy of STT) available to other unit holders of business trust, is not available to the sponsor in respect of these units at the time of their transfer i.e., the LTCG is not exempt under section 10(38) and the STCG is not taxable under section 111A. (5) For the purpose of computing capital gain, the cost of these units would be the cost of the shares to the sponsor. The holding period of shares is also included in computing the holding period of such units. (6) Income by way of interest received by the business trust from SPV enjoys a pass through status, i.e., there is no taxation of such interest income in the hands of the trust and no withholding tax at the level of SPV. (7) Since such interest is subject to tax in the hands of the unit holders, the business trust has to deduct at the rate of 5% in case of payment of interest component of income distributed to non-resident unit holders, and at the rate of 10% in respect of payment of interest component of distributed income to a resident unit holder. (8) The dividend received by the trust is subject to dividend distribution tax at the level of SPV and is exempt in the hands of the trust, and the dividend component of the income distributed by the trust to the unit holders is also exempt. (iv) The sponsor suffers tax liability consequent to postponement of capital gains arising on transfer of shares of SPV in exchange for units of business trust. Hence, he is placed at a disadvantageous tax position vis-a-vis direct listing of the shares of the SPV. In case the sponsor holding the shares of the SPV decides to exit through the Initial Public Offer (IPO) route, then the benefit of concessional tax regime relating to capital gains arising on transfer of shares subject to levy of STT is available to him. The tax on short term capital gains (STCG) in such cases is and the long term capital gain (LTCG) is exempt under section 10(38) of the Act. However, the benefit of concessional regime is not available to the sponsor at the time it 120

9 (v) offloads units of business trust acquired in exchange of its shareholding in the SPV through Initial offer, at the time of listing of business trust on stock exchange. Tax treatment on capital gains on sale of units of business trust by sponsor The Finance Act, 2015 has made the following amendments to ensure parity in tax treatment in both cases mentioned above. Accordingly, (1) the sponsor would get the same tax treatment on offloading of units under an Initial offer on listing of units as it would have been available had he offloaded the underlying shareholding through an IPO. (2) STT shall be levied on sale of such units of business trust which are acquired in lieu of shares of SPV, under an initial offer at the time of listing of units of business trust in the like manner as in the case of sale of unlisted equity shares under an IPO. (3) the benefit of concessional tax regime of on STCG and exemption of LTCG under section 10(38) shall be available to the sponsor on sale of units received in lieu of shares of SPV subject to levy of STT. For this purpose, the second proviso to section 10(38) and the second proviso to section 111A have been omitted with effect from A.Y (vi) Tax treatment of rental income arising to REIT from real estate property directly held by it (1) In the case of REITs, the income is mainly in the nature of rental income. This rental income arises from the assets held directly by REIT or held by it through an SPV. (2) Whereas the rental income received at the level of SPV gets passed through by way of interest or dividend to the REIT, the rental income directly received by the REIT is taxable at REIT level and does not get pass through benefit. (3) In order to provide pass through to the rental income arising to REIT from real estate property directly held by it, the following amendments have been made by the Finance Act, 2015:- Section Particulars Tax treatment 10(23FCA) (Effective from A.Y ) 115UA(3) (Effective from A.Y ) Rental income of REIT from directly owned real estate asset Any income of a business trust, being a REIT, by way of renting or leasing or letting out any real estate asset owned directly by such business trust Distributed income received by unit holder The distributed income or any part thereof, received by a unit holder from the REIT, which is in the nature of Exempt in the hands of REIT Deemed income of unit holder 121

10 Example 194LBA (Effective from ) 194-I (Effective from ) income by way of renting or leasing or letting out any real estate asset owned directly by such REIT Distribution by REIT to unit holders of rental income from real estate assets directly owned by it Rental income received or credited to a REIT Where the income by way of rent is credited or paid to a business trust, being a REIT, in respect of any real estate asset, owned directly by such business trust. TDS@10% in case of distribution to a resident unit holder. TDS at rates in force in case of distribution to a non-resident unit holder. Tax is not deductible at source A business trust, registered under SEBI (Real Estate Investment Trusts) Regulations, 2014, gives particulars of its income for the P.Y : (1) Interest income from Beta Ltd. ` 4 crore; (2) Dividend income from Beta Ltd. ` 2 crore; (3) Short-term capital gains on sale of listed shares of Beta Ltd. ` 1.5 crore; (4) Short-term capital gains on sale of developmental properties ` 1 crore (5) Interest received from investments in unlisted debentures of real estate companies ` 10 lakh; (6) Rental income from directly owned real estate assets ` 2.50 crore Beta Ltd. is an Indian company in which the business trust holds controlling interest. The business trust holds 70% of the shareholding of Beta Ltd. Discuss the tax consequences of the above income earned by the business trust in the hands of the business trust and the unit holders, assuming that the business trust has distributed ` 10 crore to the unit holders in the P.Y Answer Tax consequences in the hands of the business trust and its unit holders (1) Interest income of ` 4 crore from Beta Ltd.: There would be no tax liability in the hands of business trust due to pass-through status enjoyed by it under section 10(23FC) in respect of interest income from Beta Ltd., being the special purpose 122

11 vehicle [See Notes 2 & 3 below]. Therefore, Beta Ltd. is not required to deduct tax at source on interest payment to the business trust. However, the business trust has to deduct tax at source under section on interest component of income distributed to resident unit holders; on interest component of income distributed to non-corporate nonresident unit holders and foreign companies. Interest component of income distributed to unit holders is taxable in the hands of the unit in case of unit holders, being non-corporate non-residents or foreign companies; and at normal rates of tax, in case of resident unit holders. The interest component of income received from the business trust in the hands of each unit-holder would be determined in the proportion of 4/11.1, by virtue of section 115UA(1) [See Notes 1 & 4 below]. (2) Dividend income of ` 2 crore from Beta Ltd.: There would be no tax liability in the hands of the business trust since dividend is subject to dividend distribution tax under section 115-O in the hands of Beta Ltd; Hence, the dividend income is exempt under section 10(34) in the hands of the business trust. Any distributed income referred to in section 115UA, to the extent it does not comprise of interest referred to in section 10(23FC) received by unit holders, is exempt in their hands under section 10(23FD). Therefore, by virtue of section 10(23FD), there would be no tax liability on the dividend component of income distributed to unit holders in their hands. (3) Short-term capital gains of ` 1.50 crore on sale of listed shares of Beta Ltd.: As per section 115UA(2), the business trust is liable to pay tax@15% under section 111A in respect of short-term capital gains on sale of listed shares of special purpose vehicle [See Note 6]. There would, however, be no tax liability on the capital gain component of income distributed to unit holders, by virtue of the exemption contained in section 10(23FD) [See Note 5]. (4) Short-term capital gains of ` 1 crore on sale of developmental properties: It is taxable at maximum marginal rate of 33.99% in the hands of the business trust as per section 115UA(2) [See Note 6]. There would be no tax liability in the hands of the unit holders on the capital gain component of income distributed to them, by virtue of the exemption contained in section 10(23FD) [See Note 5]. (5) Interest of ` 10 lakh received in respect of investment in unlisted debentures of real estate companies: Such interest is taxable@33.99%, being the maximum marginal rate, in the hands of the business trust, as per section 115UA(2) [See Note 6]. However, there would be no tax liability in the hands of the unit holders on the interest component of income distributed to them, by virtue of section 10(23FD) [See Note 5]. (6) Rental income of ` 2.50 crore from directly owned real estate assets: Any income of a business trust, being a REIT, by way of renting or leasing or letting out 123

12 Notes: any real estate asset owned directly by such business trust is exempt in the hands of the trust as per section 10(23FCA). Where the income by way of rent is credited or paid to a business trust, being a REIT, in respect of any real estate asset held directly by such REIT, no tax is deductible at source under section 194-I. The distributed income or any part thereof, received by a unit holder from the REIT, which is in the nature of income by way of renting or leasing or letting out any real estate asset owned directly by such REIT is deemed income of the unit holder as per section 115UA(3). The business trust has to deduct tax at source@10% under section 194LBA in case of distribution to a resident unit holder and at rates in force in case of distribution to a non-resident unit holder. (1) New Chapter XII-FA, containing the special provisions relating to business trusts, has been inserted w.e.f. A.Y Section 115UA(1) provides that any income distributed by a business trust to its unit holders shall be deemed to be of the same nature and in the same proportion in the hands of the unit holder, as it had been received by, or accrued to the business trust. (2) Section 10(23FC) exempts any income of a business trust by way of interest received or receivable from a Special Purpose Vehicle (SPV). Thus, the business trust enjoys a pass-through status in respect of interest received or receivable from a SPV. (3) SPV means any company or LLP in which the business trust holds controlling interest and any specified percentage of shareholding or interest, as may be required by the regulations under which such trust is granted registration [not less than 50% as per the current SEBI (Real Estate Investment Trusts) Regulations, 2014]. Since Beta Ltd. is an Indian company in which the business trust holds controlling interest and 70% of shareholding, it is a special purpose vehicle. It is presumed that Beta Ltd. fulfills the other conditions specified in the regulations to qualify as an SPV. (4) The distributed income of the business trust, to the extent it comprises of interest referred to in section 10(23FC) and rental income referred to in section 10(23FCA), is deemed to be the income of the unit holder in the previous year of distribution and subject to tax in the hands of the unit holder in that year. Accordingly, the business trust is required to deduct tax at source on the interest component and rental component of income distributed to its unit holders. (5) Any distributed income referred to in section 115UA, to the extent it does not comprise of interest referred to in section 10(23FC) and rental income referred to in section 10(23FCA), received by unit holders is exempt in their hands under section 10(23FD). (6) Section 115UA(2) provides that subject to the provisions of sections 111A and 112, the total income of a business trust shall be chargeable to tax at the maximum marginal rate. 124

13 (vii) Notional gains/loss on transfer of shares of SPV to a business trust in exchange of units allotted by the business trust & Notional gains/loss on change in carrying amount of such units to be excluded from book profit for levy of MAT Effective from: A.Y To be reduced for computing book profit, if the same has been credited to P & L A/c To be added for computing book profit, if the same has been debited to P & L A/c Notional gain on transfer of a capital asset, being share of a SPV, to a business trust in exchange of units allotted by the business trust to the transferor Notional loss on transfer of a capital asset, being share of a SPV, to a business trust in exchange of units allotted by the business trust to the transferor Notional gain resulting from change in carrying amount of the units of business trust allotted in exchange of shares of an SPV Notional loss resulting from change in carrying amount of the units of business trust allotted in exchnage of shares of an SPV Gain on transfer of units of business trust, which have been allotted in exchange of shares of SPV Loss on transfer of units of business trust, which have been allotted in exchange of shares of SPV (viii) Further, the amount of loss/gain on transfer of units of the business trust (which were allotted in exchange of shares of SPV) has to be deducted/added to compute book profit for levy of MAT. The amount of loss/gain has to be determined taking into consideration - 125

14 In a case where the shares are carried at cost The cost of the shares exchanged with the units of business trust In a case where the shares are carried at a value other than the cost through P&L A/c The carrying amount of shares at the time of exchange (ix) In effect, the gain on transfer of units of business trust allotted in exchange of shares of SPV, has to be first reduced, if the same has been credited to profit and loss account. Thereafter, the gain computed in the manner given in (viii) above has to be added back to compute book profit for levy of MAT. Likewise, the loss on transfer of units of business trust allotted in exchange of shares of SPV, has to be first added back while computing book profit, if the same has been debited to profit and loss account. Thereafter, the loss computed in the manner given in (viii) above has to be deducted to compute book profit for levy of MAT. (x) As regards notional loss or notional gain on transfer of share of SPV to a business trust in exchange of units allotted by the business trust as well as notional loss or notional gain resulting from change in the carrying amount of such units, the same have to be excluded from computation of book profit for levy of MAT, if such notional loss has been debited to profit and loss account or such notional gain has been credited to profit and loss account. (b) Decrease in rate of tax on royalty income and fees for technical services in case of non-residents [Section 115A] Effective from: A.Y (i) Under section 115A, in case of a non-resident taxpayer - where the total income includes any income by way of Royalty and Fees for technical services (FTS) received by such non-resident from Government or an Indian concern after , and 126

15 which is not effectively connected with permanent establishment, if any, of the non-resident in India, tax is leviable at the rate of 25% on the gross amount of such income. (ii) The rate of tax of such royalty and fees for technical services was increased from 10% to 25% by the Finance Act, The increase in the rate of tax caused hardship to small entities. (iii) Consequently, to reduce such hardship faced by small entities on account of the high rate of tax, section 115A has been amended to reduce the rate of tax on payment of royalty and fees for technical services made to non-residents from 25% to 10% with effect from A.Y Rate of tax on royalty and fees for technical services 25% A.Y % A.Y (c) Share of member of an AOP/BOI in the income of the AOP/BOI to be reduced from net profit for computing book profit for levy of MAT [Section 115JB] Effective from: A.Y (i) (ii) Under section 115JB, in the case of a company, if the tax payable on the total income computed as per the normal provisions of the Income-tax Act, 1961 is less than 18.5% of its book profit, such book profit shall be deemed to be the total income of the company and the tax payable for the relevant previous year shall be 18.5% of its book profit. Explanation 1 below sub-section (2) of section 115JB provides that the expression book profit means net profit as shown in the profit and loss account prepared in accordance with the provisions of the Companies Act or in accordance with the provisions of the relevant statute governing a company, as increased or reduced by certain adjustments, as specified thereunder. (iii) Under section 86, no income-tax is payable on the share of a member of an AOP/BOI in the income of the AOP/BOI in certain circumstances. A company which 127

16 is a member of an AOP is also not required to pay tax in respect of its share in the income of the AOP in such cases. However, under section 115JB, a company which is a member of an AOP is liable to MAT on such share also, since such income is not excluded from the book profit while computing the MAT liability of the member. It may be noted that in a similar situation, in the case of a partner of a firm, the share in the profits of the firm is exempt in the hands of the partner as per section 10(2A) and no MAT is payable by the partner on such profits, since income to which any provision of section 10 [other than section 10(38)] applies, has to be reduced for computing book profit. (iv) In order to ensure equity, clause (iic) has been inserted in Explanation 1 to section 115JB to provide that the share of a member of an AOP or BOI, in the income of the AOP or BOI, on which no income-tax is payable in accordance with the provisions of section 86, should be reduced while computing book profit for levy of MAT under 115JB, if any such amount is credited to profit and loss account. Consequently, clause (fa) has been inserted in Explanation 1 to add back the expenditures, if any, debited to the profit and loss account, corresponding to such income, while computing book profit for levy of MAT. (d) Income accruing or arising to a foreign company from capital gains arising on transactions in securities or interest, royalty and fees for technical services chargeable to tax at the rate or rates specified in Chapter XII to be excluded from levy of MAT [Section 115JB] Effective from: A.Y (i) In order to exclude certain income of foreign companies from levy of MAT, clause (iid) has been inserted in Explanation 1 to section 115JB so as to reduce from the net profit, the amount of income accruing or arising to an assessee, being a foreign company, from- (1) capital gains arising on transactions in securities; and (2) interest, royalty or fees for technical services chargeable to tax at the rate or rates specified in Chapter XII if such income is credited to profit and loss account and income-tax payable thereon in accordance with the provisions of the Act, other than the provisions of Chapter XII-B, is at a rate less than 18.5%, being the rate specified in section 115JB(1). (ii) The expenditure, if any, debited to the profit and loss account, relatable to such income of a foreign company, has to be added back for computation of book profit for levy of MAT. 128

17 (e) Definition of Global Depository Receipts (GDRs) amended to restrict the benefit under section 115ACA to only such GDRs as defined in the earlier depository scheme Effective from: A.Y (i) The Depository Receipts Scheme, 2014, notified by the Department of Economic Affairs (DEA) vide Notification dated 21st October, 2014, has replaced the Issue of Foreign Currency Convertible Bonds and Ordinary Shares (through depository receipt mechanism) Scheme, (ii) Section 115ACA provides for a concessional tax regime in respect of income from GDRs purchased in foreign currency or capital gains arising from their transfer. The provisions of section 115ACA are in alignment with the earlier scheme which was limited to issue of Depository Receipts based on the underlying shares of the company issued for this purpose (i.e., sponsored GDR) or foreign currency convertible bonds (FCCB) of the issuing company and where the company was either a listed company or was to list simultaneously. Further, only non-residents were holders of such Depository Receipts. (iii) However, as per the Depository Receipts Scheme, 2014, Depository Receipts can be issued against the securities of listed, unlisted or private or public companies against underlying securities which can be debt instruments, shares or units etc. Besides, the new scheme permits sponsored issues as well as unsponsored deposits and acquisitions. Also, under the new scheme, Depository Receipts can be freely held and transferred by both residents and non-residents. (iv) Since the legislative intent was to provide the tax benefit under section 115ACA only in respect of sponsored GDRs and listed companies, the definition of Global Depository Receipts in clause (a) of Explanation below section 115ACA(3) has been amended to continue the tax benefits only in respect of such GDRs as defined in the earlier depository scheme. (v) Accordingly, Global Depository Receipts is now defined to mean any instrument in the form of a depository receipt or certificate (by whatever name called) created by the Overseas Depository Bank outside India and issued to investors against the issue of, - (a) ordinary shares of issuing company, being a company listed on a recognized stock exchange in India; or (b) foreign currency convertible bonds of issuing company. 129

18 Global Depository Receipts (GDRs) Depository Receipt Certificate Created by the Overseas Depository Bank outside India Issued to investors against the issue of Ordinary shares of issuing company FCCBs of issuing company In this case, the issuing company should be a company listed on a recognised stock exchange in India. SIGNIFICANT NOTIFICATIONS/CIRCULARS (1) Form, manner and time limit for furnishing of a Statement under section 115UA(4) prescribed [Notification No. 3/2015, dated ] The Finance (No. 2) Act, 2014 inserted new chapter XII-FA containing the special provisions relating to business trusts. Section 115UA provides for tax on income of unit holder and business trust. Section 115UA(4) provides that any person responsible for making payment of the income distributed on behalf of a business trust to a unit holder shall furnish a statement to the unit holder and to the prescribed authority, within such time and in such form and manner as may be prescribed, giving the details of the nature of the income paid during the previous year and other prescribed details. Accordingly, in exercise of the powers conferred by section 295 read with section 115UA(4), the CBDT has, vide this notification, inserted Rule 12CA to prescribe the form, manner and time limit for furnishing such statement by the business trust: Particulars Statement of income distributed, to be furnished Mode of furnishing/verified by Duly verified by the person distributing Form No. 64B Due date 30 th June of the financial year following the 130

19 to the unit holders the income on behalf of the business trust Statement of income distributed furnished to the unit holders to be furnished to the Principal Commissioner Commissioner Income-tax or of Electronically under digital signature, duly verified by an Accountant 64A previous year in which income is distributed 30 th November of the financial year following the previous year during which such income is distributed The Director General of Income-tax (Systems) to specify the procedure for filing of Form No.64A. He would also be responsible for evolving and implementing appropriate security, archival and retrieval policies in relation to the statements so furnished. 131