This was a presentation on Budget Changes in the Direct Tax Regime at Ellisbridge Study Circle. Budget 2011 Direct Tax changes were covered in an exhaustive manner.

1. Budget – 2011Direct Tax Proposals CA Sandesh Mundra

2. Deficit Estimates: Fiscal Deficit brought down to 5.1 per cent of GDP Fiscal Deficit estimated at 4.6 per cent of GDP for 2011-12. Fiscal Deficit to be progressively reduced to 3.5 per cent by 2013-14.“Effective Revenue Deficit” estimated at 2.3 per cent of GDP in Revised Estimates and 1.8 per cent for 2011-12. Government Borrowing: Net market borrowing in 2011-12 would be Rs 3.43lakh crs February 2011 Budget 2011 Slide 2

3. February 2011 Budget 2011 Slide 3

4. It took less than a couple of hours for the stock market to figure out that the projected improvement in the fiscal deficit to 4.6% of gross domestic product (GDP) is unlikely to happen. February 2011 Budget 2011 Slide 4

5. First, consider that growth in total expenditure is projected at 3.4% for 2011-12, compared with 18.7% growth in 2010-11. Since the budget assumes that nominal GDP will increase by 14% in 2011-12, growth in government expenditure is far below the increase in nominal GDP. Given the government’s track record, curbing expenditure to such an extent is extremely unlikely. February 2011 Budget 2011 Slide 5

6. Right to Food Bill Higher oil Prices – Subsidy The projection of growth in tax revenue for 2011-12 is 17.9%, well below this fiscal year’s growth of 23.5%. So lets wait and watch February 2011 Budget 2011 Slide 6

7. February 2011 Budget 2011 Slide 7

8. Next the market were again up A provision for infusion of an additional Rs 6,000-crore capital in public sector banks also helped improve sentiment. “The government’s conviction of achieving a 9% growth and containing deficit at 4.6% is a big positive. The rally in oil and gas shares was led by oil marketing companies, like BPCL, HPCL and IOC which have hiked jet fuel price prompted by soaring crude oil prices in the international market Cigarette major ITC led the pack, as the company is spared from any hike in excise duty on cigarettes which was contrary market expectations. Infrastructure and construction companies led by Larsen &Toubro and HCC are expected to benefit from the Budget which made provisions to boost investment in the sector. February 2011 Budget 2011 Slide 8

9. Fiscal Deficit Difference between the government's total expenditure and its total receipts (excluding borrowing). The fiscal deficit can be financed by borrowing from the Reserve Bank of India (which is also called deficit financing or money creation) and market borrowing (from the money market, which is mainly from banks). February 2011 Budget 2011 Slide 9

10. Lets see some of the positives from the budget Focus on constitutional amendment required to move to a GST regime. Proposed direct cash transfer that will replace subsidies in the case of fuel and fertilizer. The government’s decision to not borrow more from the market than it did last year . Innovation committee set up under Sam Pitroda The announcement of another committee, to create a manufacturing policy. Insurance companies to stick to their core business: providing risk cover. As He has included the investment part of all policies in the service tax net. Foreigners to invest in mutual funds is a welcome step as long as genuine money comes. February 2011 Budget 2011 Slide 10

11. Budget with the letter S. ‘Sevottam’ – Public Compliant System ‘Sugam’ – Saral Return ‘Swabhiman’ – Financial Inclusion ‘Swavalamban’ – Pension Sceme. February 2011 Budget 2011 Slide 11

12. GST – A dream or a reality Required a Constitutional Amendment, for which the government needs two-third majority in LokSabha and RajyaSabha. After the amendments are passed, the government can push for GST with the concurrence of half of the states. Mukherjee said he is prepared to go the extra mile to have a consensus on GST, but lacks political majority in the Parliament. “As leader of the coalition, we do not have the required numbers.” February 2011 Budget 2011 Slide 12

13. February 2011 Budget 2011 Slide 13

15. Tax incentives / exemptions

16. Transfer pricing

18. Other amendments

20. Personal Tax Rates February 2011 Budget 2011 Slide 16 No change for resident woman tax payers Effective tax savings of Rs. 2,060 Senior Citizen : 60-79 years : tax savings of Rs. 1,030 : 80 year & above – tax savings of Rs. 26,780/-

21. Media – “Assuming you are a male below 60 years of age and have an annual taxable income of more than . 1.8 lakh, you will end up saving Rs 2,060 a year in taxes, which translates into a monthly saving of Rs 171 a month. “Buy term insurance plan with this saving. This will provide financial support to your family in case of an unforeseen event”. February 2011 Budget 2011 Slide 17

22. Personal Tax February 2011 Budget 2011 Slide 18 80 CCE - For AY 2012-13 Employer contribution towards pension scheme of Central Government excluded from the deduction limit of 100,000. Further deduction to employer would also be available u/s 36 which is not allowed presently This is done to promote the investment in the New Pension Scheme.

23. 80CCF extended for one more year – Infra Bonds – 20,000 Media “The Finance Minister has proposed an allocation of Rs. 2,14,000 crore for infrastructure sector in 2011-2012, which is 23.3% higher than current year. This amounts to 48.5% of the Gross Budgetary support to plan expenditure. In order to give a boost to infrastructure development in railways, ports, housing and highways development, it has been proposed to allow tax-free bonds of Rs. 30,000 crore to be issued by various government undertakings in the year 2011-12”. February 2011 Slide 19

24. Notified classes of persons exempted from filing Tax Returns – Section 139(1C) – 1st June, 2011 Media – “FM's 'return' gift to cover all taxpayersThe plan to exempt small salaried taxpayers from filing returns is likely to be extended to a large majority, both in government and private jobs. This, however, will be done step-by-step.” Correction required in Memorandum – “When there is no other source of income”. Salaried employees who have income not more than Rs. 5 Lacs who declare their other income to their employers February 2011 Budget 2011 Slide 20

25. Corporate Tax Minimum Alternative Tax (“MAT”) increased from 18% to 18.50% - AY 12-13 Effective rate for (i) Domestic companies - 20.01 per cent (from 19.93 per cent) Media – “Thus MAT for domestic companies at 20.01 per cent would align with the proposed rate of 20 per cent in Direct Tax Code (DTC)”. (ii) branches of foreign companies -19.44 per cent (from 19.53 per cent). February 2011 Budget 2011 Slide 21

26. Surcharge on tax reduced – AY 12-13From 7.5% to 5%, in case of domestic company and From 2.5% to 2% in the case of foreign company February 2011 Budget 2011 Slide 22

27. Dividend from overseas subsidiary to be taxed at the rate of 15% on gross basis – AY 12-13 – Section 115BBD The Budget proposals also seek to levy a concessional tax at 15% (plus sur and cess) on a gross basis in respect of dividends received by an Indian company from its foreign subsidiary (effective from fiscal year 2011-12). Media - “The rational behind introduction of this proposal is to invite Indian capital back in India. This proposal is important especially when Direct Taxes Code (DTC) which is going to be rolled out from April 1, 2012 does not contain similar provision but contains specific anti avoidance rules for Controlled Foreign Company (CFC) and seeks to tax income attributable to CFC in the hands of Indian holding company at normal tax rate. Therefore, the application of this proposal in the year of transition to DTC seems to give an opportunity to Indian companies to bring back money in India which is parked in overseas jurisdictions after paying a lower tax cost.” February 2011 Budget 2011 Slide 23

28. Tax incentives / exemptions February 2011 Budget 2011 Slide 24

30. Could lead to money laundering and shifting of profits to the exempted activity. Huge Turnover and profits with very less investment.

31. No incentive for investment and upgradation during the period of tax holiday.

32. Such profit-linked incentives also lead to significant loss of revenue and encourage rent-seeking behaviour.February 2011 Budget 2011 Slide 25

33. Tax incentives / exemptions Investment linked deductions - Section 35 AD Last year we had – Hotel / Hopital / Slum redevelopment Now after 1.4.11 – affordable housing scheme and production of fertiliser New as well as expansion in existing capacity Loss set off against any specified business – Word New Removed – Retrospective from AY 11-12 February 2011 Budget 2011 Slide 26

34. Sunset clause for power sector tax holiday extended by one more year upto 31.03.2012 [s. 80-IA(4)] No deduction to commercial production of natural gas for blocks awarded under NELP-IX [s. 80-IB(9)] February 2011 Budget 2011 Slide 27 Tax incentives / exemptions

36. SEZ units(10AA) / developers to pay MAT effective from AY 2012-13 -115JB(6) Media – “The commerce department will make a case for roll-back of minimum alternate tax imposed on SEZ. “The government gave a commitment of no taxes while attracting investments into special economic zones. This is a big negative for foreign investors and another sign of India reneging on commitments. SEZ developers, taken aback by the imposition of the tax burden, are drafting representations for the Prime Minister’s Office (PMO) and the finance and commerce ministries stating that it amounts to breach of trust.” February 2011 Budget 2011 Slide 29

37. DDT exemption removed for SEZ developers after 1 June 2011 – Section 115-O(6) – After 1st June, 2011 Pranab Pulls the MAT from Under the Industry’s Feet Developers will not be spared either of the dividend distribution tax of 15% after June 1, this year. Shows government resolve to end concessions before DTC. February 2011 Budget 2011 Slide 30

38. From AY 12-13 Weighted deduction increased from 175% to 200% for contribution to National Laboratory, University, IIT or a specified person [s.35(2AA)] February 2011 Budget 2011 Slide 31

39. Transfer Pricing Non-cooperative jurisdictions February 2011 Budget 2011 Slide 32

40. Media – “Thankfully, Mukherjee has not announced any scheme to reward tax cheats. Instead, there are proposals to curb tax evasion and prevent companies from stashing billions of dollars in tax havens. Any sanction on countries that refuse to share information on suspected tax evaders is an indirect punishment. It will make the cost of doing business in these places more expensive, diminishing their attractiveness. New transfer pricing rules for multinational companies will ensure that they do not shift profits outside the country. Overall, compliance and collections will improve.” February 2011 Budget 2011 Slide 33

41. Transfer Pricing – CUP/PS/TNMM etc. Sec 92 c - Fixed variation of +/-5% replaced with range to be prescribed for difference with the Mean – AY 12-13 Due date for tax returns by companies subject to Transfer Pricing, extended to November 30 – AY 11-12 What about other entities? TPO’s power widened - 1st June, 2011 Sec 92 ca to examine all international transactions covered under the reference or not Sec 92 ca (7) power to survey Overturn the Delhi Tribunal ruling in Amadeus India Pvt. Ltd's case, which restricted the TPO's power to examine only AO referred international transactions. February 2011 Budget 2011 Slide 34

42. Media – “Pranab gets tough with tax havens not sharing dataTransactions with entities in ‘non-cooperative' jurisdictions that do not effectively exchange information with India may soon attract TDS (tax deduction at source) of at least 30 per cent. This is one of the several ‘anti-avoidance' measures that the Finance Minister, MrPranabMukherjee, has proposed in Budget 2011-12, to discourage residents from transacting with entities in ‘non-cooperative' jurisdictions”. February 2011 Budget 2011 Slide 35

43. Non-cooperative jurisdictions... Memorandum to Finance Bill – New Section 94A – 1st June, 2011 “In order to discourage transactions by a resident assessee with persons located in any country or jurisdiction which does not effectively exchange information with India, anti-avoidance measures have been proposed in the Income-tax Act” Transfer pricing provisions to apply Deemed “associated enterprises” and “international transaction” Treatment of receipts Potential taxation of Indian assessee if receipt is unexplained February 2011 Budget 2011 Slide 36

44. ...Non-cooperative jurisdictions Treatment of payments Disallowance of expenditure/payments If adequate supporting documentation not maintained (over and above TP documentation?) Payments to financial institutions unless authorisation provided by resident tax payer to seek information from such financial institution Higher withholding tax applicable on payments made (30% or higher applicable rate) February 2011 Slide 37

45. Alternate Minimum Tax (“AMT”) on LLP – AY 12-13 AMT @ 18.5% on Adjusted Total Income (“ATI”) ATI is total income plus deductions claimed u/Chapter VIA under heading "Deduction in respect of certain income“, and, s. 10AA (SEZ) deduction AMT credit allowable no interest payable on such credit Carry forward for set-off permissible for 10 years February 2011 Budget 2011 Slide 38

46. February 2011 Budget 2011 Slide 39

47. Other amendments February 2011 Budget 2011 Slide 40

48. Liaison offices of foreign companies to file statement with prescribed information – 60 days from end of FY – Sec 285 1st June, 2011 In view of several judicial rulings suggesting liaison offices cannot be treated as permanent establishment as they do not carry business functions in India, liaison offices are not filing tax returns in India. The tax department is clueless. Now, the tax department would analyse the actual conduct of a liaison office - whether they would initiate inquiries based on the information obtained or will they do some deeper investigation. A more challenging tax environment for liaison offices in India. February 2011 Budget 2011 Slide 41

49. Money market mutual fund / liquid funds - DDT rate increased from 20 / 25% to 30% - Section 115R(2) Bring Taxation levels on a par with that of bank fixed deposits (FDs). “There was some tax arbitrage for corporates if they parked their money in debt schemes, but with this move it will be removed. However, DDT for retail investors and high net worth individual have been kept at same level. Leading MF, says, “I don’t think it will have major consequences on the liquid funds as corporates park their money not only for tax benefits but also for decent returns and liquidity.” He added that this move will have more of a psychology impact than otherwise. February 2011 Budget 2011 Slide 42

50. From 1st June, 2011 – 115R(2) February 2011 Budget 2011 Slide 43

52. Section 194 LB – For TDS deduction at 5% However corresponding amendment is required in Section 206AA which presribes TDS at 20% when PAN is not available. W.e.f 1st June, 2011 February 2011 Budget 2011 Slide 45

53. Section 245C(1)(ia) - Additional amount of tax in case of related persons exceeds Rs. 10 Lacs Section 245D (6B) - SC would be empowered to rectify, within 6 months, any apparent mistake in its orders. Prospectively reverse the Supreme Court ruling in BrijLal's case, which held that the SC cannot amend its order. February 2011 Budget 2011 Slide 46 Settlement commission – 1st June, 2011

54. Some more Points…. Tax officers in India empowered to collect information from persons, based on requests received from overseas Tax office, notwithstanding that no proceedings are pending in respect of that person in India. – Section 131(1) – 1st June, 2011 Time lapsed in obtaining information from overseas tax authorities to be excluded from assessment timelines. Section 153 – 1st June, 2011 Time-limit for obtaining exemption from EPFO extended till March 31, 2012. Ceiling for receipts by charitable institutions from advancement of any other object of general public utility increased to Rs 25,00,000 February 2011 Budget 2011 Slide 47

55. Some more Points…. Three more Centralised Processing Centres to be set up for faster processing of tax returns Sec 282 B - Requirement of Document Identification Number dispensed with Perquisites earned by Chairman and Member of UPSC – From 1/4/08. Specified Income of a Board / Authority under an Act – 10(46) – Six Years back covered u/s 10(20) February 2011 Budget 2011 Slide 48

56. Unfinished AgendaNo mention of IFRSNo Roadmap for FDI in insurance and retail sectorNo clear roadmap / Timeline for GST implementation February 2011 Budget 2011 Slide 49

57. Thank You