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The draft Direct Taxes Code Bill seeks to consolidate and amend the law relating to all direct taxes and will replace the Income Tax Act, 1961. The draft Bill, along with a discussion paper, was released for public comments in August 2009.[1] Following inputs received, the government proposed revisions to the draft Bill in June 2010. The table below summarises these revisions. The government has not released the changes proposed in the form of a revised draft bill however, but as a new discussion paper. The note is based on this discussion paper.[2] The Code had proposed a number changes in the current direct tax regime, such as a minimum alternate tax (MAT) on companies’ assets (currently imposed on book profits), and the taxation of certain types of personal savings at the time they are withdrawn by an investor. Under the new amendments, some of these changes, such as MAT, have been reversed. Personal savings in specified instruments (such as a public provident fund) will now continue to remain tax-free at all times. The tax deduction on home loan interest payments, which was done away with by the Code, has now been restored. However, the discussion paper has not specified whether certain other changes proposed by the Code (such as a broadening of personal income tax slabs), will continue to apply.
| Issue | Income Tax Act, 1961 | Draft Direct Taxes Code (August 09) | Revisions Proposed (June 2010) |
| Minimum Alternate Tax (MAT) | MAT currently imposed at 18% of profits declared by companies to shareholders. | To be imposed on assets rather than profits of companies. Tax rate proposed at 2% (0.25% for banks) | MAT to be imposed on book profit as is the case currently. Rate not specified. |
| Personal Saving / retirement benefits | Certain personal savings, such as public provident funds, are not taxed at all. | Such savings to be taxed at the time of withdrawal by the investor. | Such savings to remain tax-exempt at all stages, as is the case currently. |
| Income from House Property | Taxable rent is higher of actual rent or ‘reasonable’ rent set by municipality(less specified deductions). Rent is nil for one self-occupied property. | Taxable rent is higher of actual rent or 6% of cost /value set by municipality (less specified deductions). Rent is nil for one self-occupied property. | Taxable rent is no longer presumed to be 6% in case of non-let out property. Tax deductions allowed on interest on loans taken to fund such property. |
| Interest on Home loans | Interest on home loans is tax deductible | Tax deductions on home loan interest not allowed. | Tax deductions for interest on loans allowed, as is currently the case. |
| Capital Gains | Long term and short term gains taxed at different rates. | Distinction between long and short term capital gains removed and taxed at the applicable rate; Securities Transaction Tax done away with. | Equity shares/mutual funds held for more than a year to be taxed at an applicable rate, after deduction of specified percentage of capital gains. No deductions allowed for investment assets held for less than a year. Securities Transaction tax to be ‘calibrated’ based on new regime. Income on securities trading of FIIs to be classified as capital gains and not business income. |
| Non-profit Organisations | Applies to organizations set up for ‘charitable purposes’. Taxed (at 15% of surplus) only if expenditure is less than 85% of income. | To apply to organizations carrying on ‘permitted welfare activities’. To be taxed at 15% of income which remains unspent at the end of the year. This surplus is to be calculated on the basis of cash accounting principles. | Definition of ‘charitable purpose’ to be retained, as is the case currently. Exemption limit to be given and surplus in excess of this will be taxed. Up to 15% of surplus / 10% of gross receipts can be carried forward; to be used within 3 years. |
| Units in Special Economic Zones | Tax breaks allowed for developers of Special Economic Zones and units in such zones. | Tax breaks to be done away with; developers currently availing of such benefits allowed to enjoy benefits for the term promised (‘grandfathering’). | Grandfathering of exemptions allowed for units in SEZs as well as developers. |
| Non-resident Companies | Companies are residents if they are Indian companies or are controlled and managed wholly out of India. | Companies are resident if their place of control and management is situated wholly or partly in India, at any time in the year. The Bill does not define ‘partly’ | Companies are resident if ‘place of effective management’ is in India i.e. place where board make their decisions/ where officers or executives perform their functions. |
| Double Taxation Avoidance Agreements | In case of conflict between provisions of the Act, and those in a tax agreement with another country, provisions which are more beneficial to the taxpayer shall apply | The provision which comes into force at a later date shall prevail. Thus provisions of the Code would override those of existing tax agreements. | Provisions which more beneficial shall apply, as is the case currently. However, tax agreements will not prevail if anti-avoidance rule is used, or in case of certain provisions which apply to foreign companies. |
| General Anti-Avoidance Rule | No provision | Commissioner of Income Tax can declare any arrangement by a taxpayer as ‘impermissible’, if in his judgement, its main purpose was to have obtained a tax benefit. | CBDT to issue guidelines as to when GAAR can be invoked; GAAR to be invoked only in cases of tax avoidance beyond a specified limit; disputes can be taken to Dispute Resolution Panel. |
| Wealth Tax | Charged at 1% of net wealth above Rs 15 lakh | To be charged at 0.25% on net wealth above Rs 50 crore; scope of taxable wealth widened to cover financial assets. | Wealth tax to be levied ‘broadly on same lines’ as Wealth Tax Act, 1957. Specified unproductive assets to be subject to wealth tax; nonprofit organizations to be exempt. Tax rate and exemption limit not specified. |
| Source: Income Tax Act, 1961, Draft Direct Taxes Code Bill (August 2009), New Discussion Paper (June 2010), PRS | |||
[1] See PRS Legislative Brief on Draft Direct Taxes Code (version of August 2009) at http://prsindia.org/index.php?name=Sections&id=6 [2] Available at http://finmin.nic.in/Dtcode/index.html
The Monsoon Session of Parliament begins tomorrow and will continue till August 10, 2018. It is scheduled to have 18 sittings during this period. This post outlines what is in store in the upcoming session.
The session has a packed legislative agenda. Presently, there are 68 Bills pending in Parliament. Of these, 25 have been listed for consideration and passage. In addition, 18 new Bills have been listed for introduction, consideration, and passage. This implies that Parliament has the task of discussing and deliberating 43 Bills listed for passage in an 18-day sitting period. Key among them include the Bills that are going to replace the six Ordinances currently in force. The government is going to prioritize the passage of these six Bills to ensure that the Ordinances do not lapse.
Besides the heavy legislative agenda, the session will also witness the election of a new Deputy Chairman for the Upper House. Former Deputy Chairman, P.J. Kurien’s term ended on July 1, 2018. The upcoming election has generated keen interest, and will be closely watched. The role of the Deputy Chairman is significant, as he quite frequently oversees the proceedings of the House. The Deputy Chairman is responsible for maintaining order in the house and ensuring its smooth functioning. The preceding Budget Session was the least productive since 2000 due to disruptions. Rajya Sabha spent only 2 hours and 31 minutes discussing legislative business, of which 3 minutes were spent on government Bills. In this context, the role of the Deputy Chairman is important in ensuring productivity of the house.
Another key player in ensuring productivity of Parliament is the Speaker of the Lower House. In Budget Session 2018, the Speaker was unable to admit a no confidence motion. This failure was based on her inability to bring the house in order. Repeated disruptions led to the passage of only two Bills in Lok Sabha. The same session also saw disruptions by certain MPs demanding special category status for Andhra Pradesh. Between the last session and the upcoming session, a key development includes the resignation of five YRSC members, reducing the strength of MPs from Andhra Pradesh to 20. In light of this, one has to wait to see whether the demand for special category status for Andhra Pradesh will be raised again.
Coming to the legislative agenda, of the six Bills that aim to replace Ordinances, key include: (i) the Fugitive Economic Offenders Bill, 2018, (ii) the Criminal Law (Amendment) Bill, 2018, (iii) the Insolvency and Bankruptcy Code (Amendment) Bill, 2018, and (iv) the Commercial Courts (Amendment) Bill, 2018. The Fugitive Economic Offenders Bill aims to confiscate the properties of people who have absconded the country in order to avoid facing prosecution for economic offences. The Fugitive Economic Offenders Bill, 2018 was introduced in Lok Sabha in March 2018. Subsequently, an Ordinance was promulgated on April 21, 2018. The Criminal Law (Amendment) Bill increases the punishment for rape of women, and introduces death penalty for rape of minor girls below the age of 12. The Insolvency and Bankruptcy (Amendment) Bill aims to address existing challenges in the Insolvency and Bankruptcy Code. It amends the Code to include homebuyers as financial creditors in the insolvency resolution process.
There are some Bills that have been passed by one house but are pending in the other, and some that are pending in both the houses. These cut across various sectors, including social reform, education, health, consumer affairs, and transport. Some key reformative legislation currently pending include the Transgender Persons (Protection of Rights) Bill, 2016, and the Triple Talaq Bill. The Triple Talaq Bill, passed on the day of introduction in Lok Sabha, is pending in Rajya Sabha. When introduced in Rajya Sabha, the opposition introduced a motion to refer the Bill to a Select Committee. In the forthcoming session, it remains to be seen whether the Bill will be sent to a Select Committee for detailed scrutiny or will be passed without reference to a Committee. Other pending legislation include the the National Medical Commission Bill, 2017, the RTE (Second Amendment) Bill, 2017, the Consumer Protection Bill, 2018 and the Specific Relief (Amendment) Bill, 2017.
Of the 18 new Bills listed for introduction, all have been listed for consideration and passage as well. These include the Trafficking of Persons Bill, 2018, the DNA Technology (Use and Application) Regulation Bill, and amendments to the RTI Act. Since they have been listed for passage, it remains to be seen whether these Bills are scheduled to be scrutinized by a Parliamentary Committee. In the 16th Lok Sabha, only 28% of the Bills introduced in Lok Sabha have been referred to Committees. This number is low in comparison to 60% and 71% of the introduced Bills being referred to Committees in the 14th and 15th Lok Sabha, respectively. Committees ensure that Bills are closely examined. This facilitates informed deliberation on the Bill, and strengthens the legislative process.
Besides taking up the legislative agenda, an important function of Parliament is to discuss issues of national importance and hold the government accountable. In the previous session, the issue of irregularities in the banking sector was repeatedly listed for discussion. However, due to disruptions, it was not taken up. Budget Session 2018 saw the lowest number of non- legislative debates since the beginning of the 16th Lok Sabha. In the upcoming session, it is likely that members will raise various issues for discussion. It remains to be seen whether Parliament will function smoothly in order to power through its agenda, and fulfil its obligation to hold the government accountable.
