Taxation in India

The Indian Tax Structure is quite elaborate, with clear distinction in authority between Central, State and local governments. The taxes levied by the Central government are on income (other than tax on agriculture income which would be levied by the state government), customs duties, central excise and service tax. The State government levies Value Added Tax (VAT), sales tax in states where VAT is not applied, stamp duty, state excise, land revenue and tax on professions. Local bodies levy tax on property, octroi and for utilities like water supply, drainage etc.

In the last 10 to 15 years, tax system in India has been subjected to significant reforms. The tax rates have been revised and tax laws have been modified. Since April 1, 2005 many State Governments in India have replaced the sales tax with VAT. Indian Tax Structure After Independence The period after Independence was quite challenging for the tax planners. A huge black economy set in both due to Second World War and the increase in economic activity after independence. Savings and investment were encouraged through the various taxation laws by the way of incentives.

There was a need for generating huge amount of revenues to fund the economic growth of the country. The tax department took great care to plan the tax structure not only with the aspect to widen the income tax base, but also to look for alternate taxes and to eradicate tax avoidance . The department was severely tested due to the high volumes of work. Some of the prominent taxes that came into existence were: • • • • • • Business Profits Tax (1947) Capital Gains (1946-48 to 1956) Estate Duty (1953) Wealth Tax (1957) Expenditure Tax (1957) Gift Tax (1958).

To check the growth of black money, high denomination notes were demonetized in 1946. The Income tax Act was re modified in 1961, replacing the outdated law of 1922. Income Tax Structure Post Liberalization The wave of tax reforms which started across the world in the second half of 1980’s found its way into India. As part of its policy of liberalization, India introduced tax reforms in the 1990’s. The reforms introduced in the Indian tax structure are different in comparison to other countries.

The tax reforms in India took place independent of interference from any external multilateral agency unlike some other countries. But the tax reforms took place in such a way as to ensure its adherence to the prevailing International trends. During the initial stages of reforms, the restructuring of the tax structure took place with a view to increase savings and use the increased savings towards investment, to bring in equitable distribution of income and to rectify the disparities due to oligopolistic market that existed due to co existence of both private and public sector.

The tax structure reform in India can be used as an example for many developing countries that are in the same path of development, due to the large size of the country and the disproportion in the socio economic condition across the country. Direct Tax Direct tax is the tax which is charged directly on the tax payer. For e. g. property tax and income tax. In other words direct tax is that tax that is deducted from one’s salary. Direct Taxation in India Direct taxation in India is taken care by the Central Board of Direct Taxes (CBDT); it is a division of Department of revenue under Ministry of Finance.

CBDT is governed by the revenue act 1963. CBDT is given the authority to create and control direct taxes in India. The most important function of CBDT is to manage direct tax law followed by Income Tax department. In India the tax structure is divided amongst the central government and state government. The central government levies taxes on income, custom duties, central excise and service tax. While the state government levies tax like state excise, stamp duty, VAT (Value Added Tax), land revenue and professional tax. Local civic bodies levy tax on properties, octroi etc.

Capital gains tax, personal income tax, tax on corporate income and tax incentives all come under the purview of direct tax. Direct taxes are charged on the basis of residential status and not on the basis of citizenship. The assessee are charged based upon the following factors • • • Resident Resident but not ordinary resident. Nonresident. Direct Taxes Before Reform They had a major impact on economic policies, creation of savings and the trend of investment. There was no proportion in terms of the impact of direct taxes on the economy and there relative share in total tax revenues.

The system of direct taxes was very much complex and inefficient because of the combination of high marginal rates of personal income and wealth taxation and high rates of corporate profits. The corporate tax was pretty high. It leads to large scale evasion. Members Of Parliament and Central Government Ministers get comparatively low salaries, but they are given a sitting allowance which is not taxable. Ministers, MP’s and other high ranking government officials get government allocated accommodation, where the charges are pretty less in comparison to the prevailing market rate.

Growth in Direct Tax collection during the Financial Year 2008-09 Net direct tax collection during the fiscal 2008-09 stands at Rs. 338, 212 crore, up from Rs. 312, 202 crore during 2007-08, registering a growth of 8. 33 percent. Growth in Corporate Taxes was 10. 84 per cent, while Personal Income Tax (including FBT, STT and BCTT) grew at 9. 09%. Despite economic slow-down and substantial relief to noncorporate taxpayers, direct tax collections exceeded the previous year’s collection by about Rs. 26, 000 crore. Growth In Direct Tax Collection During The Financial Year 2009-2010.

The net direct tax collections grew by 5. 77 per cent during the first two months of the current fiscal (2009-2010). It was Rs 24,158 crore compared to Rs 22,840 crore at the same time last year. Corporate tax grew at5. 56 per cent (Rs 8578 crore against Rs 8126 crore), while personal income tax (including FBT, STT and BCTT) grew at 5. 92 per cent (Rs 15,559 crore as against Rs 14,690 crore0. Overall refund outgo during the period increased by 26. 19 per cent (Rs 11,375 crore as against Rs 9014 crore)while refunds to non corporate taxpayers grew by 61.

7 per cent (Rs 2,149 crore against Rs 1,329 crore). Corporate Tax A company has been defined as a juristic person having an independent and separate legal entity from its shareholders. Income of the company is computed and assessed separately in the hands of the company. However the income of the company which is distributed to its shareholders as dividend is assessed in their individual hands. Such distribution of income is not treated as expenditure in the hands of company, the income so distributed is an appropriation of the profits of the company.

Taxable Corporate Income The tax levied on a company’s income is based on its legal residence. Companies of Indian origin are levied tax in India, while International companies are levied tax on earnings from their Indian operations. For International companies’ royalty, interest, gains from sale of capital assets within India, dividends from Indian companies and fees for technical services are all treated as income arising in India. Tax On Distributed Profits Till 1997, a company was not required to pay any income tax on the amount of dividends declared, distributed or paid by such company.

But such dividend was included in the income of the shareholders under the head “income from other sources”. The finance act 1997 brought about changes to the rule. A) Tax On Distributed Profits Of The Domestic Company The domestic company would be required to pay additional income tax on any amount declared, distributed or paid by such company by way of dividend (be it interim or otherwise) on or after 1-06-1997,be it from current or accumulated profits. Such additional income tax shall be payable @ 10 per cent of the amount so distributed.

Even if no income tax is payable by the company on it total income, the additional tax would have to be paid. B) Exemption Of Dividend In The Hands Of Shareholders In view of the income tax now payable by the domestic company, any dividends declared, distributed or paid by such company, on or after 01-06-1997 shall be exempt in the hands of the shareholders. Time limit for deposit of additional income tax: Such additional tax will have to be paid by the principal officer of the domestic company within 14 days from the date of: a) Declaration of any dividend. b) Distribution of any dividend.

c) Payment of any dividend, whichever is earlier. Additional income-tax is not allowed as deduction: The company shall not be allowed any deduction on account of such additional income tax under any provisions of the income tax act. Indian Budget 2008 Indian Corporate Taxation Minimum Alternate Tax To wipe out the ambiguity on adjustments relating to tax entries in the profit and loss account, it is proposed that the “book profits” be increased by an amount of DDT paid, amount of deferred tax paid and deferred tax provision debited to Profit and Loss Account.

Dividend Distributing Tax In order to overcome the domino effect of DDT, it has been suggested that any dividend received by a domestic company (C1) during any financial year from its subsidiary (C2) shall be allowed to be deducted from dividend to be declared/distributed/paid by C1, to calculate DDT, if the dividends so received by C1 had been scrutinized to payment of DDT by C2. At the same time C1 must not be a subsidiary of any other company.

Business Income The Budget 2008 has proposed have a weighted deduction of 125% with respect to any sum paid for scientific research to a domestic company doing scientific research and development. To remove multiple deductions, it has been proposed some Indian companies incurring the expenses would not be able to use the weighted deduction of 150 per cent as prescribed under the provisions of the Act. Income Tax In India Income tax in India is levied by the Central government and is monitored and controlled by Central Board OF Direct Taxes under Ministry of Finance in allay with the provisions of the Income Tax Act.

Income earned in a given financial year is subject to tax as per the rates prescribed for that year. A financial calendar is from April 1 to March 31 of the following year. India has adopted the residential form of tax system. It means tax payers will be divided into residents or non residents. A tax payer can also be classified as ordinary residents. Residential Status An individual is resident in India if he is in India in the tax year for: • • •

182 days or more; or 60 days or more (the period of 60 days stands changed to 182 days or more for Indian citizens or persons of Indian origins on a visit to India; and also for citizens of India who leave India for employment abroad as member of a crew of an Indian ship) during the tax year, and an aggregate of 365 days or more during the four years preceding the tax year. An individual who does not satisfy the above conditions is a non-resident. A resident is “not ordinarily resident” in India in any tax year if he: • • •

Has been “non-resident” in India in nine out of the 10 previous years preceding that year: or Has during the previous seven years, preceding that year, been in India for a total period of 729 days or less. Taxability based on status Taxability Based On Status Residential Status Indian Sourced Income Foreign Sourced Income Resident Taxable In India Taxable In India Resident but not ordinarily resident Taxable In India Not Taxable In India Non resident Taxable In India Not Taxable In India Heads Of Income Income can be divided into five categories.

The income that falls within the tax component is disclosed in line with rules for a particular head and then cumulated to determine the aggregate income to be taxed. But losses under certain categories cannot be cumulated with income gained under other categories. Salaries: It covers those monetary gains that are obtained for services performed and would include wages, pension, fees and commission . Standard deduction is taken from the salary and the amount of deduction depends upon the income received.

Income From House property: It involves income earned by renting residential and commercial property. Only two authorized deductions are allowed while calculating income. Profits And Gains From Business Or Profession: It covers monetary benefits gained from business or profession minus the permissible deductions, against the revenue earned. Capital Gains: It deals with gains due to transfer of assets. The duration of holding determines the classification of the asset, which then decides the method of taxation.

Capital assets held for 36 months (12 months in case of shares/securities) are taken as short term assets, while all other capital assets are taken as long term capital assets. Long term assets have the advantage of lower rate of tax. Income From Other Sources: It is the remaining category of income and takes care of all income not covered by any category. Foreign Nationals The tax law in India allows for exemption of income earned by foreign nationals for services provided in India, under certain condition: • • • • • • • •

Remuneration from a foreign enterprise not conducting any business in India, provided the individual’s stay in India does not exceed 90 days and the payment made is not deducted in computing the income of the employer; Remuneration received by a person employed on a foreign ship provided his stay in India does not exceed 90 days; Remuneration of foreign diplomats, consular staff, trade officials and their staff and family; and Income of an employee or consultant of a government approved foreign charitable institutions.

Payment from an International unit not having any business in India on condition that the individual does not reside in India for more than 90 days and the remuneration made is not subtracted in calculating the income of the employer. Payment obtained by a person working on an International ship under condition he does not reside in India for more than 9 days. Payment for foreign diplomats, consular staff, trade officials and their staff and family and Earnings of an employee or consultant of a government approved foreign charitable institutions.

India Budget 2008 Personal Taxation Basic Tax Rates Income (INR) Up to 150,0000 150,001-300,000 300,001-500,000 Above Tax Rate Nil 10% 20% 30% *Basic exemption for women and senior citizens will be INR 180,000 and INR 225,000 respectively. Wealth Taxation In India The wealth taxation in India is known as the wealth tax act, 1957. It applies to all the citizens of the country. It is one of the most important direct taxes. It is paid on the property ownership benefits. Till a person retains the ownership of a property, he or she has to pay wealth tax based on the prevailing market rate.

Even if the property is not yielding any income, Wealth tax would have to be paid. Payment Procedures Of The Wealth Tax In India An Assessee is one who pays the wealth tax. An assessee can belong to any of the following categories: • • • • • • A Company. A Hindu undivided family. An Association of Persons or a Body of Individuals. Non corporative taxpayers. A dead person’s legal representative, the executor or administrator. A non resident’s agent. For a Hindu Undivided Family the tax is considered on the income derived from joint family collections.

But for a non-corporative taxpayers, whose account is audited they have to pay the wealth tax according to the existing tax rate. Chargeability To Wealth Tax In India One of the main factors for a person to pay the wealth tax in India is the persons domicile status. According to the act, the domicile status of the assessee and the domicile status of the same needed for payment of the Income Tax must remain similar. Another factor based on which wealth tax is computed is the status of the assessee, whether he is a citizen or a non citizen.

For citizens the wealth of the person within India is taxed, while for non citizens the wealth of the person within India is taxed, while the wealth located outside India is not taxed. Assets On Which Wealth Tax Is Charged The assets on which wealth tax is chargeable in India are: • • • • • • Residence like guesthouse, residential house, urban farmhouse and commercial property. Automobile for personal use. Precious items like jewelry, bullion, furniture, utensils. Yachts, boats and aircrafts used for non commercial purposes.

Urban land under the authority of municipality or cantonment board having a population of, 10,000 and more. If the cash in hand is more than Rs 50000 for individuals and Hindu Undivided Families. Indirect tax Charge levied by the State on consumption, expenditure, privilege, or right but not on income or property. Customs duties levied on imports, excise duties on production, sales tax or value added tax (VAT) at some stage in production-distribution process, are examples of indirect taxes because they are not levied directly on the income of the consumer or earner.

Since they are less obvious than income tax (because they don’t show up on the wage slip) politicians are tempted to increase them to generate more state revenue. Also called consumption taxes, they are regressive measures because they are not based on the ability to pay principle. Indirect Tax System India Indirect Taxes Pre Reforms The indirect tax structure was extremely irrational between the reforms. The Constitution gives the permission to levy a multitude of indirect taxes.

But the most important ones are customs and excise duties charged by the Central government and sales tax excepting inter state sales tax to be charged by the state government. The indirect taxes levied by the centre like customs, excise and central sales tax and the major indirect taxes levied by the states and civic bodies like passenger and goods tax, electricity duty and octroi when taken together did not present a rational system. Indirect Taxes Post Reforms • • •

Even post reforms, the indirect tax regime in India is still in the early stages of growth. Both the Central and State governments charge a multitude of indirect taxes. The central government charges tax on goods at the point of import (Customs duty), manufacture (Excise duty), inter state sales (Central sales tax or CST) and on provision of services (Service tax). The state governments charge tax on goods sold within the state (Sales tax/Value Added Tax or VAT), and on the goods that enter the state (Entry tax).

In the present scenario corporate would have to analyze the tax cost involved in a transaction, have enough backup documentation to support their tax positions and keep looking for ways for tax maximization. India Budget 2008 Indirect Taxes As per the Ministry Of Finance there has been significant development in planning for introducing the goods and services tax (GST) from April 1 2010. As a first step the rate of central sales tax (CST) is under proposal to be decreased to 2 per cent from April1 2008.

The general rate of central value added tax (CENVAT) has been decreased from 16 per cent to 14 per cent across all goods. Custom Duties Customs regulation in India is through the Customs act. The Customs act came into existence in 1962 at a time when the “License Quota Permit Raj” system existed in the country. It came into existence to check illegal imports and exports of goods. All imports into the country would be charged a duty, to give protection to the Indian industries and to check the amount of imports with a view to secure the exchange rate of the country.

Customs duty on goods imported or exported from India are levied according to the Tariff Act 1975. To monitor imports and exports, the Central government has the authority to inform the ports and airports for the unloading of the imported goods and loading of the exported goods, the location for clearance of goods imported or exported, the routes by which above goods may pass by land or inland water into or out of Indian ports. According to the custom laws, the following are the various types of duties which can be charged.

Basic Duty As the name suggests, it is the normal duty charged under the Customs Act. Additional Duty This duty is levied under section 3(1) of the Customs Tariff Act and is equal to excise duty levied on a like product manufactured or produced in India. Anti Dumping Duty International sellers may at times export goods into India at prices which would be less than the prices they would be charging in their domestic market. The reason for this is to capture the Indian markets, which is against the interest of the Indian industry.

This economic phenomenon is called dumping. To avoid dumping the Central government may charge additional duty equal to the margin of dumping on such articles provided the goods have been sold at less than normal price. Countries which are signatories to the GATT or countries with “Most Favored Nation Status” cannot be charged dumping duty. India Budget 2008 Custom Duty • • • The peak rate of basic customs duty (BCD) on all agricultural products is 10 per cent. For certain industries, customs duty has been reduced.

For project imports the duty has been reduced from 7. 5 per cent to 5 per cent. In place of sales tax/value added tax (VAT) the additional duty of customs at 4 per cent has been induced on power generation projects. A Countervailing Duty (CVD) of 1 per cent has been charged on mobile phones. Double Taxation Relief A condition in which two or more taxes may need to be paid for the same asset, financial transaction or income is known as double taxation. It generally takes place due to the overlapping of the tax laws and regulations of different countries.

Thus, double taxation occurs when a taxpayer is charged income tax, both at his country of residence as well as in the country where the income is generated. Taking into account the laws of income tax in India, a non-resident becomes liable to tax payment in India, given that it is the place where the income is generated. Moreover, he has to additionally bear the burden of tax payment in his own country, by virtue of the inclusion of the same income in the ‘total world income’, which forms the tax base of the country where he resides.

To effectively deal with the problems related to double taxation, Central Government, under Section 90 of the Income Tax Act of1961, has been certified to enter into Double Tax Avoidance Agreements (DTAA) with other countries. These agreements are meant to alleviate various problems related with double taxation. So far, India has entered into Double Taxation Avoidance Agreements with 65 countries, including U. S. A, Canada, U. K, Japan, Germany, Australia, Singapore, U. A. E and Switzerland. The tax treatises offers relaxation from double taxation, by providing release or by providing credits for taxes paid in one of the countries.

Under Section 90 and 91 of the Income Tax Act, relief against double taxation in India is provided in two ways: Double Taxation Relief In India Double taxation relief in India is of two type’s Unilateral relief and Bilateral relief. Unilateral Relief Under Section 91, Indian government can relieve an individual from burden of double taxation, irrespective of whether there is a DTAA between India and the other country concerned or not, under certain conditions. Cases where a person enjoys double taxation relief as per the unilateral relief scheme are: • • • • If the person or company has been a resident of India in the previous year.

If the person or company has paid income tax under the laws of the foreign country. The same income should be gained and received by the tax payer outside India in the previous year. The income should have been taxed in India and in a country with which India has no tax treaty Bilateral Relief Under Section 90, Indian government provides protection against double taxation by entering into a mutually agreed tax treaty (DTAA) with another country. Under bilateral relief, protection against double taxation is provided either by completely avoidance of overlapping tax or waiving a certain amount of the tax payable in India.

Excise Duty Central excise duty is an indirect tax which is charged on such goods that are manufactured in India and are meant for domestic consumption. The taxable fact is “manufacture” and the liability of central excise duty arises as soon as the goods are manufactured. The tax is on manufacturing, it is paid by a manufacturer, which is then passed on to the customer. The term “excisable goods” means the goods which are specified in the First Schedule and the Second Schedule to the Central Excise Tariff Act 1985. The term “manufacture” refers to any process • • •

Related or supplementary to the combination of a manufactured product. Which is specified in relation to any goods in the Section or Chapter Notes of the First Schedule to the Central Excise Tariff Act 1985 as amounting to manufacture or Which in relation to the goods specified in the Third Schedule involves packing or repacking of such goods in a unit container or labeling or re-labeling of containers including the declaration or alteration of retail sale price on it or adoption of any other treatment on the goods to render the product marketable to the consumer.

Three different types of Central Excise Duties exist in India. They are listed below: Basic Excise Duty In India Excise Duty, imposed under section 3 of the ‘Central Excises and Salt Act’ of1944 on all excisable goods other than salt produced or manufactured in India, at the rates set forth in the schedule to the Central Excise tariff Act, 1985, falls under the category of Basic Excise Duty In India. Additional Duty of Excise Section 3 of the ‘Additional Duties of Excise Act’ of 1957 permits the charge and collection of excise duty in respect of the goods as listed in the Schedule of this Act.

This tax is shared between the Central and State Governments and charged instead of Sales Tax. Special Excise Duty According to Section 37 of the Finance Act, 1978, Special Excise Duty is levied on all excisable goods that come under taxation, in line with the Basic Excise Duty under the Central Excises and Salt Act of 1944. Therefore, each year the Finance Act spells out that whether the Special Excise Duty shall or shall not be charged, and eventually collected during the relevant financial year. India Budget 2008 Excise Duty • • • • • The general rate of CENVAT has been brought down from 16 per cent to 14 per cent.

The CENVAT on many goods like cars, writing paper, printing paper and packing paper, drugs and pharmaceuticals, water filtration and purification devices, pan masala not containing tobacco etc have been decreased. For goods like anti AIDS drugs and bulk drugs, packaged tender coconut water, tea and coffee mixes, specified refrigeration equipment, etc have been exempt from excise duty. For packaged software the duty has been increased from 8 per cent to 12 per cent. The duty of 1 per cent on National Calamity and Contingent Duty has been imposed on mobile phones. Permanent Account Number (PAN).

Permanent Account Number or PAN is issued by the Income Tax Office of India, to all those who are required to pay income tax in the country. Thus, taxpayers whose income is taxable are issued a Permanent Account Number, which is similar to the Social Security Number issued in United States to citizens and other legal residents. So, PAN in India is nothing, but a national identification number. The main purpose of allotting PAN card is to outline the monetary transactions of individuals and to avert any sort of tax evasion by tax payers. Apart from keeping a track on the various

financial dealings of a person, a PAN is also required for many other important activities. As every individual is assigned a unique, national and permanent number as his/her PAN, the number is required while opening an account, applying for a phone line, receiving salary or other professional fees. Thus, it becomes an authentic document, proving the identity of the individual. The PAN of a person remains the same even if there is residential change of address from one state to another. Each individual entitled to a Permanent Account Number receives a PAN card, wherein the number is mentioned.

The PAN follows the following structure – XXXXX1111X. The first five characters are letters; the next 4 are numerals, and the last character is again a letter. A Permanent Account Number that doesn’t follow this pattern is deemed as invalid. Moreover, the fourth character of the PAN is one of the following, depending on the type of assessee who is allotted the number. • • • • • • • • • • C – Company P – Person H – Hindu Undivided Family (HUF) F – Firm A – Association of Persons (AOP) T – AOP (Trust) B – Body of Individuals (BOI) L – Local Authority J – Artificial Juridical Person G – Government.

In addition, the fifth character of the PAN is the first character in the surname of the assessee. Though PAN is generally issued to individuals to keep track of the tax payment, it can however also be issued to non-taxpayers in India. Sales Tax In India Sales Tax in India is a form of tax that is imposed by the government on the sale or purchase of a particular commodity within the country. Sales Tax is imposed under both, Central Government (Central Sales Tax) and State Government (Sales Tax) Legislation. Generally, each state follows its own sales tax act and levies tax at various rates.

Apart from sales tax, certain states also imposes additional charges like works contracts tax, turnover tax and purchaser tax. Thus, sales tax acts as a major revenuegenerator for the various State Governments. Sales tax is an indirect form of tax, wherein it is the responsibility of the seller of the commodity to collect and recover the tax from the purchaser. Generally, sale of imported items and sales by way of export are not included in the range of commodities which requires payment of sales tax. Moreover, luxury items (like cosmetics) are levied heavier sales tax rates.

Central Sales Tax (CST) Act that falls under the direction of the Central Government takes into account all the interstate sales of commodities. Thus, sales tax is to be paid by every dealer on the sale of any commodity, made by him during inter-state trade or commerce, irrespective of the fact that no liability to pay tax on the sale of goods arises under the tax laws of the appropriate state. He is to pay sales tax to the sales tax authority of the state from which the movement of the commodities commences.