In an attempt to simplify the direct tax provisions, the Government released the Direct Taxes Code Bill, 2009 in August 2009 for public comments. The provisions of the DTC, especially those relating to Minimum Alternate Tax çMAT’) on gross assets, withdrawal of tax holiday to SEZ units, etc. met with vociferous protests from various stakeholders. Several representations were made by numerous industry groups, based on which, the Government identified some major issues and released the Revised Discussion Paper on DTC in June 2010. As a logical step post the Revised Discussion Paper, the Government has now presented the Direct Taxes Code Bill, 2010 (‘DTC’) before the Parliament. The provisions of DTC are intended to come into effect from April 1, 2012 onwards. An analysis of the proposals in the DTC which are likely to impact the Telecom sector is set out below.

KEY PROPOSALS AND THEIR IMPACT

Tax holiday to telecom service providers

Current situation:

Under the existing provisions of the Income-tax Act, 1961 (‘the Act’), tax holiday is available to an undertaking which has commenced providing telecommunication services on or before 31 March 2005 (Section 80-IA of the Act). Such benefit is available for a period of 10 consecutive years out of fifteen years beginning from the year in which it begins to provide the telecommunication services, subject to fulfillment of certain conditions.

DTC Proposals:

  • Grandfathering of Tax Holiday for telecom service providers
  • The Tax Holiday under section 80-IA of the Act would continue to be availed by the eligible undertakings under the DTC regime for the balance unexpired period out of the prescribed 10 years.
  • For the purpose of computing profits eligible for the aforesaid Tax Holiday, the provisions of DTC shall be applicable. It seems that special provisions under Schedule 13 of the DTC prescribed for computing profits and gains from certain infrastructure facilities may not be applicable to telecommunication services.
  • The conditions specified under section 80-IA for availing Tax Holiday shall continue to be applicable.

Comments:

The telecom sector has been a key driver to India’s economic growth trajectory. The tax incentives offered to companies operating in this sector have provided them a breather in today’s fiercely competitive market.

As such, continuation of these tax incentives to the existing undertakings under the DTC regime, has provided some respite to the telecom sector.

Deduction in respect of telecom license fees and 3G spectrum fees

Current situation: Under the existing provisions of the Act, deduction is available to the telecom operators in respect of capital expenditure incurred for obtaining licence to operate telecommunication services (Section 35ABB). The deduction is allowed equally over the tenure of the licence. There is no specific provision dealing with deductibility of the 3G spectrum fees.

DTC Proposals:There is no specific provision dealing with the deductibility of the licence fees or grandfathering of the deduction under Section 35ABB for the balance period. Further, the DTC is also silent vis-à-vis deductibility of the 3G spectrum fees.

Comments:Considering the huge outlay by the telecom companies for acquiring the telecom licence and the 3G spectrum, a specific provision dealing with deductibility of these payments would have provided much needed clarity to the telecom companies.

Carry forward of business losses

Current situation:Under the existing provisions of the Act, carried forward of unabsorbed business losses is allowed for a period of eight years. Further, unabsorbed depreciation is allowed to be carried forward for an infinite period of time.

DTC Proposals:Under the DTC, unabsorbed business losses and depreciation is allowed to be carried forward for an infinite period of time. However, there is no specific provision allowing the carry forward of unabsorbed business loss / unabsorbed depreciation pertaining to the period prior to the DTC coming into force.

Comments:Having regard to the huge investments, most of the telecom companies have incurred substantial losses in the initial years of their operations. A specific provision allowing the carry forward of such business losses under the DTC regime would have been a welcome step.

Withholding tax provisions

Bandwidth and software payments

The telecom companies earn significant revenues from provision of bandwidth facility to the customers. Further, the telecom companies also incur cost towards procurement of standardized software for provision of the telecommunication services.

Current Situation: Based on various judicial precedents, bandwidth charges are not subjected to tax withholding on the basis that such charges to the overseas service providers are not in the nature of ‘royalty’. Further, the payments towards software are akin to payment for purchase of goods and not ‘royalty’ or ‘FTS’.

DTC Proposal: Under DTC, the definition of ‘royalty’ has been amended to specifically include consideration for use or right to use of transmission by satellite, cable, optic fiber or similar technology. Also, the definition of the term ‘Fees for technical services’ is redefined to include “development and transfer of a design, drawing, plan or software or similar services”.

Comments: These amendments could raise an issue whether the definition of royalty would cover charges for bandwidth which is merely a ‘facility’ provided by the telecom companies and whether the term FTS would also cover payment for standardized software which are essentially akin to payment for purchase of goods.

Payments made in kind

Current Situation: Under the existing Act, there is no specific provision relating to withholding tax in a case where the payment is made in kind. However, there are certain judicial precedents wherein it has been held that the tax would need to be withheld even where the payment is in kind.

DTC Proposals: A specific provision has been inserted providing that if the payment is wholly or partly in kind, the provisions of withholding tax would apply.

Comments: While the specific provision dealing with the withholding tax requirement vis-à-vis payment in kind would remove the anomaly, there is no mechanism for computing the value of the payment made in kind. This would be of specific relevance to the telecom sector, especially under the ‘Bill-And-Keep’ model for the interconnect charges.

Others

Current Situation: The withholding tax rate on royalty and fees for technical services payable to non-residents is 10% (excluding surcharge and education cess).

DTC Proposals: The withholding tax rate in respect of payment of royalties and FTS to non¬residents is proposed to be increased to 20%.

Comments: The higher withholding tax rates would increase the overall cost of the Indian companies in case of payments to tax residents of the country with whom India does not have a Tax Treaty.

Minimum Alternate Tax (MAT)

Current situation: Currently, MAT is applicable at the rate of 18% (effective 19.93% considering surcharge & cess) of the book-profits computed after making specified adjustments to the net profit of the company.

Further, the companies are allowed to carry forward the MAT credit (which is the excess of MAT tax paid over the tax computed in accordance with normal corporate tax provisions) to future years.

DTC Proposals: Under DTC, the concept and computation methodology of MAT have been retained broadly. However, MAT rate has been increased to 20% of book profits.

Comments: Retention of the MAT provisions based on book profits methodology is a relief as compared to the earlier proposal of asset based MAT provisions. This would provide significant respite to the capital intensive companies like telecom sector, as the asset based MAT would have entailed huge tax cost for them despite having losses in initial years.


Corporate tax provisions – Key provisions Tax rates

Current Situation:Currently, the domestic companies are subject to corporate tax of 30% (plus surcharge and education cess) on their taxable income.

DTC Proposals:-While the Direct Tax Code Bill, 2009 stipulated the corporate tax rate as 25%, the Revised Discussion Paper had hinted that tax rates could be reviewed and suitably calibrated considering the reduction in the tax base due to certain tax benefits spelt out in the said paper.The DTC now has retained the existing corporate tax rate of 30%.

Comments:Maintaining the corporate tax rate at 30% is not a positive development, in as much as other levies such as DDT of 15% and branch profit tax of 15% make the effective tax rate quite high.

Test of Residency

Current Situation:Under the provisions of the Act, a company is resident in India in any previous year, if the control and management of its affairs is situated ‘wholly’ in India.

DTC Proposals:Under DTC, it is proposed to shift the test of residence of a company from ‘control and management’ to ‘place of effective management’ in line with international practice.

Accordingly, a company incorporated outside India will be resident in India, if its ‘place of effective management’ is situated in India.

Place of effective management of the company would mean:

  • Place where the board of directors or its executive directors make their decisions
  • In cases where the board of directors routinely approve the commercial and strategic decisions made by the executive directors or officers of the company, the place where such executive directors or officers of the company perform their functions.

Comments:Although the concept of ‘place of effective management’ proposed under DTC is in line with international practice, it is important that this provision is administered in a fair and pragmatic manner. The new residency definition could impact businesses where key decisions are taken by Indian management / executives and merely adopted by the board overseas.

Treaty Override

Current Situation:Under the Act, the provisions of the tax treaties prevail over the domestic law to the extent they are more beneficial to the taxpayer.

DTC Proposals:The initial draft of the Direct Tax Code Bill, 2009 provided that in the case of a conflict between the provisions of a treaty and the provisions of the Code, the one that is later in point of time shall prevail. This led to apprehensions whether the proposal would lead to treaty override and render the existing treaties otiose. Post the Revised Discussion Paper, the DTC seeks to restore the beneficial treatment between the Act and the Tax Treaty except in specified cases-

  • · where GAAR is invoked or
  • · when CFC provisions are invoked or
  • · when Branch Profits Tax is levied

Comments:The proposals seem to be in line with international practice.

Controlled Foreign Corporation (CFC) Provisions

Current Situation: Under the Act, there are no CFC provisions.

DTC Proposals: The introduction of the CFC provisions has come as a major surprise for India Inc. The CFC provisions have been brought in as an anti-avoidance measure. Under this, passive income earned by a foreign company controlled directly or indirectly by a resident in India, and where such income is not distributed to the shareholders, resulting in deferral of taxes shall be deemed to have been distributed to the shareholders in India. The CFC provisions are broadly summarized as under:

  •  The total income of a Resident taxpayer to include income attributable to a CFC which means a foreign company:

§ that is a resident of a territory with lower rate of taxation (i.e. where taxes paid are less than 50 percent of taxes on such profits as computed under the DTC)

§ whose shares are not listed on any stock exchange recognised by such Territory

§ individually or collectively controlled by persons resident in India (through capital, voting power, income, assets, dominant influence, decisive influence, etc.)

§ that is not engaged in active trade or business (i.e. it is not engaged in commercial / industrial / financial undertakings through employees / personnel or less than 50 percent of its income is of the nature of dividend, interest income, income from house property, capital gains, royalty, sale of goods/services to related parties, income from management, holding or investment in securities/shareholdings, any other income under the head income from residuary sources, etc.)

§ has specified income of such company exceeds INR 2.5 million

  • Tie breaker tests have been provided to determine the place of residence of a controlled foreign company. Scope of passive income also covers supply of goods / services to associated enterprises.
  • · Specific formula prescribed for computing income attributable to a CFC. Income attributable to the CFC to be based on specified income. Specified income to be based on the net profit as per the profit and loss account of the CFC, subject to prescribed adjustments.

Comments:-CFC provisions are likely to bring additional complexity in the tax legislation and could significantly impact Indian companies having outbound investment structures. Specifically, CFC provisions could create cash flow problems for Indian companies since they would be subject to tax without corresponding receipt of actual dividends. This may necessitate a review of the existing overseas investment structure.

Transfer Pricing

Current Situation:Currently, there are no provisions under the Act in respect of Advance Pricing Arrangement (‘APA’).

DTC Proposals:It is proposed to introduce APA for upfront determination of pricing methodology of an international transaction.

Comments:Whilst the scheme specifying the procedure of APA has not yet been released, the industry would expect that the same is in line with the international practice.

Leased Assets

Current Situation: In the absence of any specific provision under the Act, there is a lack of clarity surrounding the treatment of assets obtained on finance lease by telecom entities. In certain cases, companies are facing litigation from revenue authorities on the question of whether they are eligible to claim depreciation on such assets.

DTC Proposals:Under DTC, the lessee would be treated as the owner of assets obtained on finance lease and therefore, eligible to claim depreciation on the same.

Comments:This is an important provision as it will help to end the long drawn litigation regarding ‘ownership’ of such assets & depreciation eligibility with the Revenue authorities.

General Anti Avoidance Rule (‘GAAR’)

Current Situation:Under the Act, there are limited specific anti-abuse provisions.

DTC Proposals

  • The Code seeks to introduce GAAR which provides sweeping powers to the Revenue authorities. The same is applicable to domestic as well as international arrangements.
  • GAAR provisions empower the Commissioner of Income-tax (“CIT”) to declare any arrangement as “impermissible avoidance arrangement” provided the same has been entered into with the objective of obtaining tax benefit and satisfies any one of the following conditions :

– It is not at arm’s length

– It represents misuse or abuse of the provisions of the DTC

– It lacks commercial substance

– It is carried out in a manner not normally employed for bona fide business purposes

  • An arrangement would be presumed to be for obtaining tax benefit unless the tax payer demonstrates that obtaining tax benefit was not the main objective of the arrangement.
  • CIT to determine the tax consequences on invoking GAAR by reallocating the income or disregarding/recharacterising the arrangement.
  • Meaning of ‘tax benefit’ widened to include any reduction in tax bases including increase in loss.
  • GAAR provisions to be applicable as per the guidelines to be framed by the Central Government.
  • GAAR shall override Tax Treaty provisions.
  • Forum of DRP available in a scenario where GAAR is invoked.

Comments: The guidelines to be issued by the Central Government would need careful examination to assess the scope and impact of these provisions. It is an open question whether GAAR can be invoked for transactions undertaken prior to the enactment of DTC. A suitable clarification may be provided for this purpose.

Concluding Remarks-It is interesting to note the path of the Direct Tax Code from the 2009 Bill to the 2010 one. The promises of a lower corporate tax rate have not crystallised. Introduction of GAAR and CFC signals a tough tax regime for the corporate sector. All in all, DTC seems to be a mixed bag of goodies.

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