Suggestion on Clause 62 of Finance Bill 2017– Claim of Foreign Tax Credit (FTC) pertaining to taxes which are under dispute in the foreign country – Clarification required on certain issues relating to period of limitation and documents which shall constitute evidence of settlement

Section 155(14A) proposes to provide that where the payment of foreign tax is under dispute credit of such taxes will be available in India in the year in which the dispute is settled, on satisfaction of certain conditions. To give effect to this an enabling provision shall be inserted through which Tax Authority will rectify the assessment orders or an intimation order and allow credit of taxes in the year in which the taxpayer furnishes the evidence of settlement of dispute and discharge of foreign tax liability.

However, the proposed amendment does not provide for time limit within which the Assessing Officer has to rectify the assessment order. The proposed amendment only gives a reference to section 154. Section 154 provides a time limit of 4 years for reassessment, excluding anything specifically provided under section 155. Issues may arise on what is period of limitation which may apply for section 155(14A) and how it should be applied.

The proposed amendment provides that the Assessing Officer shall amend the earlier order which denied FTC, if the taxpayer, within six months from the end of the month in which the dispute is settled, furnishes to the Assessing Officer, evidence of settlement of dispute and evidence of payment of tax. Time threshold of six months from date of dispute settlement gives a very small window for taxpayers to claim the benefit for previous years, hence, giving a limited scope to the benefit.

It is also not clear as to what could constitute sufficient evidence on the part of taxpayers to claim the FTC benefit on dispute settlement.

Suggestion=

(i)  The time limit applicable for rectification of order may be clarified. Since all the sub-sections in section 155, provide for the time limit to be applied and some of the sub-sections provide for a different time limit, it may be expressly clarified that what is the period of limitation which may apply to cases covered by the proposed section 155(14A).

(ii) It may also be clarified that the period of limitation (e.g. if it 4 years), should be 4 years from the end of the year in which the amended order is passed and it should not be the date of the original order. This is for the reason that if the dispute in the foreign country takes more than 4 years to get resolved and if the limitation period is considered to be 4 years from the date of the original order, the taxpayer may not get credit for taxes which he has actually paid. Such may not be the intent of the proposed amendment.

A similar provision is contained in S.155(16) which provides that where the compensation for compulsory acquisition is reduced by any Court or Tribunal, then the period of limitation shall be reckoned to be 4 years from the end of the year in which the order of the Court or Tribunal is passed.

(iii) The time limit may be amended to provide for 6 months from date of settlement of dispute or date of effect of the amended order passed u/ s. 155(14A), whichever is later.

(iv) Clarification may be provided on what is the documentation which shall constitute as sufficient evidence for justifying that the dispute has been settled. This may be done by specifying an illustrative set of documents, which shall constitute as evidence for settlement of dispute.

Illustratively the following may be considered as evidence for settlement of dispute

  • Final assessment order/ final demand notice of the tax authority of the foreign country
  • Judgment of the Court of Law along with the final demand notice of the tax authority based on the judgement
  • Proof of payment of taxes
  • Self-declaration

Source- ICAI Post-Budget Memoranda-2017

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