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Budget 2013 E & Y


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Budget 2013 E & Y

  1. 1. Budget PLUS 2013 EY Tax Alert - Financial ServicesTax Alerts cover significant tax news, developments and changes in legislation that affect Indian businesses. They act astechnical summaries to keep you on top of the latest tax issues. For more information, please contact your Ernst & Youngadvisor. Scan QR code for detailed analysis on the Budget 2013 -14. Budget PLUS 2013
  2. 2. Introduction Capital marketsThis alert summarizes certain significant tax Various proposals relating to capital marketsproposals contained in the Finance Bill, 2013 have been finalized in consultation with the(Bill) and policy announcements, made by the Securities and Exchange Board of India (SEBI)Finance Minister, Mr P Chidambaram during as follows:the Budget 2013-14 speech relevant to thefinancial services sector. The policy ► Depository participants will be eligible topronouncements made by the Finance Minister register different classes of portfolioare expected to be implemented by the investors, subject to compliance withGovernment through legislative Know Your Customer (KYC) guidelines.announcements in the ensuing months. TheBill will be discussed in the Parliament before it ► SEBI to simplify procedures and prescribeis enacted and is subject to any amendments uniform registration and other norms forthat may be made pursuant to these entry of foreign portfolio investors.discussions. ► SEBI to converge different KYC norms andThe direct tax proposals discussed in this adopt a risk-based approach to KYC tomemorandum are effective from the tax year make it easier for foreign investors suchcommencing on 1 April 2013, unless otherwise as central banks, sovereign wealth funds,specified. university funds, pension funds etc to invest in India.Key Policy Initiatives ► Foreign Direct Investment (FDI) and investment under the Foreign InstitutionalSome of the key initiatives announced by the Investor (FII) route to be distinguishedFinance Minister as a part of his budget speech based on the following criteria:are summarized below: ► Investment of 10% or less in a company toFinancial sector be regarded as investment by a FII; ► Investment of more than 10% to be treatedInitiatives proposed to streamline the financial as FDI.sector laws, rules and regulations as follows: A committee will be constituted to► It has been proposed to constitute a examine the application of the above Standing Council of Experts to analyse the principle and to work out details international competitiveness of the expeditiously. Indian financial sector. ► FIIs will be permitted to participate in the► Recommendations provided in the report exchange traded currency derivative presented by the Financial Sector segment to the extent of their Indian Legislative Reforms Commission will be rupee exposure in India. examined to ensure that the financial sector is well-regulated, efficient and ► FIIs will be permitted to use their internationally competitive. investment in corporate bonds and Government securities as collateral to meet their margin requirements. Budget PLUS 2013
  3. 3. ► SEBI to prescribe requirements for angel ► The Insurance Laws (Amendment) Bill, investor pools by which they can be 2008; recognised as Category I Alternative ► The Pension Fund Regulatory and Investment Fund Venture Capital Funds. Development Authority Bill, 2011.► Stock exchanges will be allowed to ► To increase penetration of insurance, life introduce a dedicated debt segment on and general, the following key proposals the exchanges. Insurance companies, have been finalised in consultation with provident funds and pension funds will be the Insurance Regulatory and permitted to trade directly in the debt Development Authority (IRDA): segment with the approval of the sectoral regulator. ► Insurance companies empowered to open branches in Tier II cities and below without► Mutual fund distributors will be allowed to prior approval of IRDA; become members in the mutual fund ► All towns of India with a population of segment of stock exchanges to leverage 10,000 or more to have an office of Life on the stock exchange network to improve Insurance Corporation of India and an their reach and distribution. office of at least one public sector general insurance company;► The list of eligible securities in which ► Banking correspondents to be allowed to Pension Funds and Provident Funds may sell micro-insurance products; invest will be enlarged to include exchange ► Banks to be permitted to act as insurance traded funds, debt mutual funds and asset brokers. backed securities. Tax reformsBanking ► The Direct Taxes Code (DTC) to be a new► Public sector banks will be further code and not an amended version of the capitalised by an amount of approximately Income-tax Act, 1961 (Act) but be based ` 265 billion to be infused by 31 March on best international practices. The DTC 2014. Steps will also be taken to ensure Bill is proposed to be brought back before that they meet the Basel III Regulations. the Parliament in the current Parliamentary session.► Measures will be adopted to bring all banks on the core banking solution and on ► Rules for safe harbours to be issued after electronic payment systems (NEFT and examining the last report of the RTGS) by 31 December 2013. Rangachary Committee, expected in March 2013.► It has been proposed to set up India’s first Women’s Bank with an initial capital of ` ► Tax Administration Reform Commission 10 billion as a public sector bank by proposed to be set up to review the October 2013. The bank will lend mostly application of tax policies and tax laws. to women and women-run businesses and predominantly employ women employees. Other key initiativesInsurance ► To ensure that ‘Doing business in India’ is viewed as being easy, friendly and► Endeavour to pass the following bills in mutually beneficial, communication of the current session of the Parliament: policies to be improved to remove any Budget PLUS 2013
  4. 4. apprehension or distrust in the minds of ► In case of corporate taxpayers, the investors, including fears about undue current surcharge rate of 2% (for foreign regulatory burden or application of tax companies) and 5% (for domestic laws. companies) remains unchanged where income exceeds ` 10 million but does not► Various steps taken/ proposed to be taken exceed ` 100 million. Where the income to increase investment in the exceeds ` 100 million, the surcharge rates infrastructure sector. are proposed to be increased to 5% (for foreign companies) and 10% (for domesticDIRECT TAXES companies). Surcharge rate on DDT, distribution tax onTax rates ► income payable by mutual funds,Basic tax rates distribution tax on buy-back of shares (proposed by the Bill), distribution tax onThe basic rates for corporate tax, minimum income distributed by securitisation trustsalternative tax and dividend distribution tax (proposed by the Bill) to be levied at a(DDT) remain unchanged for both domestic uniform rate of 10% (on the rate),and foreign companies. irrespective of the category of the investor.Special rates Education cessThe Bill proposes to substitute the tax rate on Education cess to continue to be levied at thethe income in the nature of Royalty and Fees rate of 3% on the amount of tax computed,for Technical Services arising in the hands of a inclusive of surcharge, in all cases.non-resident from the applicable rates [10%applies to agreements entered after 1 June Mutual funds2005; a higher rate for earlier agreements]with 25%. Where the non-resident is eligible to The Bill proposes to increase the tax rate on income distributed by mutual funds to anclaim benefits under the double taxation individual or a Hindu Undivided Family (HUF)avoidance agreement (DTAA) between India from 12.5% or 25% (depending upon theand country of which the recipient is a nature of fund) to a uniform rate of 25% for allresident, the lower rate, if any, under the DTAA funds other than equity oriented mutual funds.would apply. Particulars Money Other FundsSurcharge Market (not being Mutual equity► No surcharge is leviable where the income Funds/ Liquid oriented does not exceed ` 10 million irrespective Funds fund) of the category and residential status of Current rates the taxpayer. Individuals /HUFs 27.038% 13.519%► In case of non-corporate taxpayers Others 32.445% 32.445% (whether resident or not), a surcharge of 10% is proposed where the income 1 April 2013 – 31 May 2013 exceeds ` 10 million. (Currently, no surcharge is payable by non-corporate Individuals /HUFs 28.325% 14.163% taxpayers.) Others 33.99% 33.99% Budget PLUS 2013
  5. 5. From 1 June 2013 derivate (other than agricultural commodities), entered on a recognized association. Individuals /HUFs 28.325% 28.325% Others 33.99% 33.99% Securitisation Trusts The Bill proposes to introduce specialThe Bill proposes a tax rate on income provisions relating to taxation of income ofdistributed by a mutual fund under an securitisation entities, set up as trusts andInfrastructure Debt Fund scheme to a non- distribution of income by them to theresident investor of 5.665%. This rate will be investors. Securitisation trusts have beeneffective from 1 June 2013. defined to mean a trust being a:Securities Transaction Tax (STT) ► ‘Specified purpose distinct entity’ regulated under the SEBI (Public Offer andThe Bill proposes to reduce STT1 in taxable listing of Securitized Debt Instruments)securities transactions. The revised rates are Regulations, 2008; andas follows: ► ‘Special Purpose Vehicle’ regulated by the Nature of Payable Existing Proposed guidelines on securitsation of standard taxable by rate Rate assets issued by the Reserve Bank of securities India. transaction Delivery based Purchaser 0.1% Nil Taxability of securitisation trusts and investors purchase of units therein of an equity oriented fund ► The Bill proposes that the income of a entered on a securitisation trust from the activity of recognised stock securitisation shall be exempt from tax. exchange Further, it is also proposed that the Delivery based Seller 0.1% 0.001% income received by the investors from the sale of units of an securitisation trust shall be exempt from equity oriented tax provided that taxes have been paid by fund entered on a the securitisation trust on such distributed recognised stock income. exchange Sale of a futures Seller 0.017% 0.01% Taxability in respect of income distributed by in securities securitisation trusts Sale of a unit of Seller 0.25% 0.001% an equity ► The Bill proposes to levy an additional tax oriented fund to on the income distributed by the mutual fund securitisation trusts at the rate of 25% for distribution made to individuals and HUFsCommodity Transaction Tax (CTT) and at the rate of 30% in other cases. The above rates will be increased by surchargeThe Bill proposes to introduce a new tax called of 10% and education cess of 3%.CTT. CTT at the rate of 0.01% is proposed to However, no additional income-tax wouldbe levied on the seller on sale of commodity be payable where the income of the investor is not chargeable to tax.1 This amendment will take effect from 1 June 2013 Budget PLUS 2013
  6. 6. ► The aforesaid amendment is proposed to ► Further, a deduction of ` 100,000 is be applicable in respect of income available for premium paid on life distributed by securitisation trusts on or insurance policies (other than a deferred after 1 June 2013. annuity scheme) issued on or after 1 April 2012 to the extent of 10% of the actual capital sum assured (subject to theTaxation of Alternative above cap).Investment Funds (AIF) ► The Bill proposes to increase the limit► SEBI had issued SEBI (AIF) Regulations, from the existing 10% to 15% in respect of 2012 on 21 May 2012 which replaced the insurance policies issued on or after existing SEBI (Venture Capital Funds) 1 April 2013 for the insurance on the life Regulations, 1996. of any person with disability or severe disability (as prescribed) or suffering from► The Bill proposes to grant a ‘pass through’ specified diseases or ailments. status to a Category I AIF, provided the following conditions are satisfied: Clarification on keyman ► Atleast 2/3rd of the investible funds are insurance policy invested in unlisted equity shares or equity linked instruments of venture capital ► Currently, unlike any sum received under undertakings (VCU); a conventional life insurance policy, any ► No investment is made by an AIF in a VCU sum received under a keyman insurance which is an associate company; policy does not enjoy exemption from the ► Units/ shares of an AIF are not listed on a levy of income-tax. recognized stock exchange. ► The Bill proposes that a keyman insurance► The existing venture capital funds or policy assigned to any person during the venture capital companies which are term of the policy, with or without any regulated by SEBI (Venture Capital Funds) consideration shall continue to be treated Regulations, 1996 will continue to avail as a keyman insurance policy to prevent pass through status. the taxpayers from misusing the exemption available in respect of any sum► This amendment is proposed to take effect received under a conventional life retrospectively from 1 April 2012. insurance policy.Increase in percentage limit Deduction for bad debtsof eligible premium for life ► Currently, banks are entitled to deductioninsurance policies for provision for bad and doubtful debts at the rate of 7.5% (5% in the case of foreign► Presently, an exemption is available for banks) of the gross total income and 10% any sum received under a life insurance of the aggregate average advances made policy issued on or after 1 April 2012, in by the rural branches. Further, banks are respect of which premium payable for any also entitled to deduction for actual bad of the years during the term of the policy debts written off to the extent it is in does not exceed 10% of the actual capital excess of the credit balance in the sum assured. provision for bad and doubtful debts account. Budget PLUS 2013
  7. 7. ► Recently, the Supreme Court of India had have been accepted by the Government, some held that if the actual write off of debt of which have resulted in the following key relates to urban advances, then it should changes in GAAR: not be set off against the provision for bad and doubtful debts made for rural Deferral of the applicability of GAAR branches. ► Applicability of GAAR has been deferred► The Bill clarifies that only one account is to financial year 2015-16. made in respect of the provision for bad and doubtful debts and such account Impermissible avoidance arrangement relates to all types of advances including advances made by rural branches. ► Presently, an arrangement is considered Therefore, the amount of deduction in as an ‘Impermissible avoidance respect of the bad debts actually written arrangement’ if the main purpose or one off shall be limited to the amount by which of its main purposes is to obtain a tax such bad debts exceeds the credit balance benefit. in the provision for bad and doubtful debts account without any distinction between ► As per the Bill it is proposed that, an rural advances and other advances. arrangement, the main purpose of which is to obtain a tax benefit will be considered as an ‘Impermissible avoidanceTax residency certificate arrangement’.► Presently, benefits available under a DTAA Definition of the term ‘tax benefit’ entered into by the Central Government and the Government of any country or Currently, the term ‘tax benefit’ is defined in an specified territory can be claimed by a exhaustive manner to mean: taxpayer only where a tax residency certificate containing the prescribed ► A reduction or avoidance or deferral of tax particulars, is obtained by a taxpayer. or other amount payable under the Act, including as a result of a DTAA; or► The Bill proposes that the tax residency ► An increase in a refund of tax and other certificate obtained by the taxpayer would amount under the Act or as a result of a be a necessary condition but not a DTAA; or sufficient condition to avail of the benefits ► A reduction in total income, including under a DTAA. increase in loss.► This amendment is proposed to take effect retrospectively from 1 April 2012. The Bill proposes to modify the exhaustive definition to an inclusive one without any specific change in the present criteria.General Anti Avoidance Rule(GAAR) Certain factors for determining commercial substanceGAAR was introduced by the Finance Act,2012 to be effective from the financial year ► Under the Act, while determining whether2013-14. Based on the representations or not an arrangement lacks commercialreceived, an Expert Committee was substance, the period or time for whichconstituted by the Government. Certain the arrangement (including operationsrecommendations of the Expert Committee Budget PLUS 2013
  8. 8. therein) exists, payment of taxes and ► A chairperson, who is or has been a Judge provisions of exit are not considered. of a High Court ► One member of the Indian Revenue► The Bill proposes to clarify that the above Service not below the rank of Chief factors may be relevant, but shall not be Commissioner of Income-tax sufficient for determining whether or not ► One member, who shall be an academician the arrangement lacks commercial or scholar having special knowledge of substance. matters such as direct taxes, business accounts and international trade practices► Further, the Bill proposes that an arrangement, which does not have a Binding nature of directions issued by the significant effect upon business risks or Approving Panel net cash flows of any party, apart from a tax benefit, shall be deemed to lack ► Under the Act, the directions of the commercial substance. Approving Panel are binding only on the Assessing Officer.Onus on the taxpayer ► As per the Bill it is proposed that the► Under the Act, an arrangement which directions of the Approving Panel shall be results in any tax benefit shall be binding on the taxpayer as well. presumed to have been entered into, or carried out, for the main purpose of ► Also, appeal against an order passed obtaining a tax benefit. pursuant to the directions of the Approving Panel shall lie to the Tribunal.► The Bill proposes to put the onus on the taxpayer for demonstrating that the Accepted recommendations of the Expert arrangement is not entered into only for Committee not addressed by the Bill deriving tax benefit. Some of the key recommendations of theConstitution/ Powers of the Approving Panel Expert Committee which were accepted by the Government in January 2013 but have not► The Central Government may constitute been formally proposed by the Bill are as one or more Approving Panel(s) as may be follows: necessary from time to time. ► Grandfathering of investments made► Under the Act, the Approving Panel (which before 30 August 2010. decides whether an arrangement is impermissible or otherwise) comprises of ► The same income not to be taxed twice in a minimum of three members being: the hands of the same taxpayer in the same year or in different assessment ► Income-tax authorities not below the rank years. of Commissioner; and ► An officer of the Indian legal service not ► A monetary threshold (` 30 million of tax below the rank of Joint Secretary to the benefit) in order to attract the provisions Government of India. of GAAR.► The Bill proposes that the Approving Panel ► Only one of GAAR and Specific Anti will comprise of three members being: Avoidance Rules to apply when both of them are in force. Budget PLUS 2013
  9. 9. It is expected that some of these changes taxable at a concessional rate of 5% (pluscould be implemented by way of guidelines to applicable surcharge and education cess).the GAAR provisions. ► In order to facilitate subscription by a non- resident in long term infrastructure bondsTax on distributed income issued by an Indian company (rupeefor buy-back of unlisted denominated bonds), the Bill proposes toshares extend the benefit of the concessional rate where:► Gains arising to a shareholder on buy-back ► the non-resident deposits foreign currency of shares, ordinarily qualifies as capital in a designated bank account; and gains (where shares are held as capital ► such money, after conversion, is used for assets). Where the shareholder is a subscription to a rupee denominated long resident of a country with which India has term infrastructure bond issue of an Indian a DTAA (such as India-Mauritius DTAA), company. such gains could be exempt from tax in India. ► This amendment will take effect from► The Bill proposes to levy an additional 1 June 2013. income-tax on buy-back of shares (of unlisted companies) at the rate of 20% Concessional rate for (plus surcharge of 10% and education cess of 3%) on the distributed income (i.e. dividends received from consideration paid by the company on foreign subsidiary buy-back of shares as reduced by the amount received by the company for issue ► Currently, any amount received by an of such shares). Indian company in respect of dividends declared, distributed or paid by a specified► Where the company is liable to pay the foreign company during the financial year said distribution tax on buy-back of 2011-12 and 2012-13 is subject to tax at shares, income arising to the shareholders the rate of 15% in the hands of the Indian in respect of such buy-back would be company. Specified foreign company exempt from tax. means a foreign company in which the Indian company holds 26% or more of► This amendment will take effect from equity share capital of the former 1 June 2013. company. ► The Bill proposes to extend theInterest income from long applicability of the aforesaid provision interm infrastructure bonds respect of dividends declared, distributed or paid for the financial year 2013-14.► Presently, interest paid by an Indian company to a non-resident, in respect of approved borrowings made (during the Removal of the cascading period 1 July 2012 to 30 June 2015) in effect of DDT foreign currency from sources outside India (under a loan agreement or on issue ► In order to encourage remittances of of long term infrastructure bonds) is dividends to a domestic company by its foreign subsidiary, the Bill proposes that Budget PLUS 2013
  10. 10. no DDT will be payable on the dividend shall stand vacated, if the appeal is not distributed by the domestic company to its disposed off within the total period of 365 shareholders during the financial year (i.e. days. financial year 2013-14) to the extent of dividend, received during the same ► New provision to prescribe penalty on financial year, from the foreign subsidiary directors and officials for specified wilful in respect of which tax is payable by the actions up to ` 100,000. domestic company at the rate of 15%. ► Power granted to Commissioner to order► For this purpose, a company is a the arrest for specified offences. subsidiary of another company if such other company holds more than 50% of the equity share capital of the former Customs company. ► Peak rate of basic customs duty remains unchanged.► This amendment is proposed to take effect from 1 June 2013 and will only be ► Powers granted to customs officers for applicable for financial year 2013-14. recovery of outstanding duties of a defaulter from any other person includingINDIRECT TAXES banks / insurance companies who holds money on behalf of the defaulter.Service tax Excise► No change in effective service tax rate of 12.36%. ► No change in the basic excise duty rate of 12%.► Minimum changes made to the levy and procedural provisions.► A 20% increase in value liable to service tax for construction of specified properties.► Service Tax Voluntary Compliance Encouragement Scheme, 2013, an amnesty scheme, is introduced to encourage voluntary compliance by taxpayers.► Provisions of Advance ruling extended to resident public limited companies.► More stringent penalties to apply for offences liable for prosecution.► Appellate Tribunal may extend the period of stay order not exceeding 185 days where the delay in disposing of the appeal is not attributable to appellant. Stay order Budget PLUS 2013
  11. 11. CommentsWhile the Budget has proposed anumber of favorable policyinitiatives and forward looking ideasfor the financial services sector,contrary to the expectations, the Billhas not addressed some of thefollowing key areas:• Implementation of the recommendations of the Expert Committee constituted to examine the ‘indirect transfer’ provisions;• Availability of concessional rate of 10% (introduced by the Finance Act, 2012) on long term capital gains earned by non- resident investors arising on transfer of securities issued by private companies;• Grandfathering of the investments made before 30 August 2010 from GAAR provisions, as was announced by the Finance Minister.Presumably, some of these may getclarified through circulars,guidelines, in due course as andwhen internal consultations areconcluded. Budget PLUS 2013
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