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Is there any special tax rate for capital gains under Direct tax Code?

September 1, 2010 By taxworry Leave a Comment

No, unlike Income Tax Act 1961, the new Direct Tax Code 2010 , likely to be effective from 01/04/2012 , does not prescribe any special tax rate. Now the long term or short term are  part of total income and is taxed at the normal tax rate applicable to you. Note following points regarding taxation of capital gains.

1. Every asset which held for more than a year is long term. If less than one year, it is short term.

2. Long term gains on equity shares or mutual fund units  on which STT is deducted are tax free as 100 %  deduction is allowed. For knowing more . read this.

3. Short term gains on equity shares or mutual fund units  on which STT is deducted are taxed at 50 % of the STCG . For knowing more . read this.

4. Loss on long term gains on quity shares or mutual fund units  on which STT is deducted is not allowed to be adjusted with any other income.

5. Loss on short term gains on quity shares or mutual fund units  on which STT is deducted is  allowed to be adjusted upto the extent of 50% with the head capital gains only and not with income under any other head . If not adjusted , the loss can be carried forward.

6. Any other capital gains , whether Long Term or Short Term , is added to total income and shall be taxed at normal tax rate applicable to that person.

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Filed Under: Capital Gains under DTC 2010, Direct Tax Code Tagged With: , , , , , , , , ,

Only 50 % of short term capital gains on shares or units taxed .

September 1, 2010 By taxworry Leave a Comment

As on now tax rate on short term capital gains on shares or units which is subject to STT are taxed @ 15 % . However under Direct Tax Code 2010 ,not only there is no specific tax rate for STCG ,  it is proposed that the STCG on listed shares or units shall be taxed only to the extent of 50 %  of gains computed. For example , let us say you bought a share of X ltd for Rs 100 and sold for 150 after six months. Since it  is held for less than a year, Rs 50 (Rs150 – 100  ) shall be treated as short term capital gains and only 50 % of Rs 50 i.e 25 shall be included in your total income and shall be taxed at noraml rate along with other income.

What happens if there is loss in case of short term asset sale?

Even in case there comes a loss in case of short term asset , 50% of such loss only can be treated as “Short Term Loss” . It can be adjusted with any other capital gains of the current year and not with income from any other heads. Balance if any shall be allowed to be carried forward.

51(2) In the case of transfer of an investment asset, being an equity share in a company or a unit of an equity oriented fund and such transfer is chargeable to securities transaction tax under Chapter VII of the Finance (No.2) Act, 2004,—
(a)……..

(b) where the asset is held for a period of one year or less,

(i) if the income computed after giving effect to sub-section (1) is a positive income, a deduction amounting to fifty per cent. of the income so arrived at shall be allowed;

(ii) if the income computed after giving effect to sub-section (1) is a negative income, fifty per cent. of the income so arrived at shall be reduced from such income.

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Is long term gain on shares or units tax free under Direct Tax Code?

August 31, 2010 By taxworry 1 Comment

The good news is : Yes, the long term capital gains on sale of shares of companies or mutual funds on which securities transaction tax has been deducted is made tax free.

taxworry.com explains direct tax code

But , just note that instead of exemption being given like section 10(38) , now everyone who wants that tax not be paid on shares sold or mutual fund units sold by redemption or through stock exchange , can claim deduction euivalent to the income on such sale.

For example , let us say you held the shares for one year . You sold the shares through stock exchange.  Let us say indexed  cost of shares were Rs 20 and you sold for Rs 100. In that case , you will have to compute the gains as under

Sale consideration   Rs 100

Less Cost (indexed)  Rs 20

Gain                                Rs 80

Less

Deduction as per section 51(2) Rs 80

Income from capital gains    Rs NIL

Why is such method of allowing same exemption in form of deduction?

The purpose of allowing deduction not  exemption , seems to me ,that  Govt wants  proper accounting of income in return itself. It wants that every tax payer must show the proper computation even if such income is not subject to tax while filing return of income . This will bring more transparency and control in terms of true reflection of ones affair in return of income.

Reference

Section 51 (2)  of proposed Direct Tax Code 2010 is relevant

51. (2) In the case of transfer of an investment asset, being an equity share in a company or a unit of an equity oriented fund and such transfer is chargeable to securities transaction tax under Chapter VII of the Finance (No.2) Act, 2004,—

(a) where the asset is held for a period of more than one year, (i) if the income computed after giving effect to sub-section (1) is a positive income, a deduction amounting to hundred per cent. of the income so arrived at shall be allowed;

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DTC introduced , but shall be effective from 1st April 2012

August 30, 2010 By taxworry Leave a Comment

The government, on Monday, tabled the Direct Tax Code (DTC) . However , Revenue Secretary Sunil Mitra clarified that the new tax law will be effective from 01/04/2012 . The reason for postponement is that  tax administrator, tax practitioner and taxpayers need time to adjust to new tax regime.

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Can Official Liquidator be given notice to file income tax return ?

August 29, 2010 By taxworry Leave a Comment

Filing of return under Income tax is compulsory for two classes of persons-company and firm. This is provided in proviso to section 139  of the I T Act. What happens when a company goes into liquidation?

Darshan Khakhar of Ahmedabad asks “Does an official liquidator appointed by court bear any responsibility of tax? Is it a liability of Official Liquidator to pay tax on income arising out of sale of assets done by him in process of liquidation of company? Is AO correct in his stand for sending any notice for payment of tax/penalty/interest to official liquidator for recovery of tax dues? “

Answer lies in the fact that the Court have grappled with this issue and pronounced Official liquidator as “Principal Officer ” of the company which is into liquidation and that the Official Liquidator has the repsonsibility to abide by law which includes any statutory liability to file return of income. Following case laws are referred in thsi regard :

Tika Ram and Sons (Pvt) Ltd vs CIT U P and Another 51 ITR 403 , Allahabad high court held as under

“hold that assessment proceedings do not fall within the scope of “other legal proceedings” and do not automatically come to a stop the moment the company goes into liquidation. Such proceedings have to be carried out in accordance with the provisions of the Income-tax Act which is a complete code in itself. The company in liquidation is still an assessee, and income-tax proceedings up to the stage of assessment do not fall within the scope of the words “other legal proceedings” as used in section 446 of the Companies Act, 1956.”

Official Liquidator, Mysore Spun Silk Mills Ltd. vs CIT Bangalore 79 ITR 399

“Under the provisions of the Companies Act, the liquidator of a company in liquidation by orders of the court functions subject to the orders of the company court. But the legal position of the liquidator, in our view, whether he is a liquidator appointed in a voluntary winding-up or under the compulsory winding-up by orders of the court, is not different. The liquidator is an officer of the court employed for the purpose of winding-up of the affairs of the company in liquidation. The company on the making of an order of compulsory winding-up does not cease to have its corporate existence. During the course of the winding-up, the company is represented by the liquidator who functions as its agent for the purpose of winding-up. One of the duties of the court, as observed by the learned company judge, is to see that the liabilities of the company are properly met in accordance with the provisions of the law. The liability to income tax is one of such liabilities. The official liquidator is the officer employed under the Companies Act for discharge of the said liability also. He can be rightly termed as the agent of the company. Therefore, the liquidator, on an order for winding-up being made, becomes the ” principal officer ” of the company within the meaning of section 2(35)(a) of the Income-tax Act, 1961.In that view, the learned company judge was right in requiring the liquidator to file returns before the Income-tax Officer”

Income Tax Officer A- Ward Nellore Circle Nellore vs Official Liquidator 106 ITR 119

Facts of the case

The company by name Messrs. Civil Supplies Corporation Ltd., Pamur, was registered with the Registrar of Companies on July 189, 1949. The registered office of the company was in Pamur, Kanigiri taluk, Prakasam district. The company went into voluntary liquidation by a special resolution passed by the members of the company on September 9, 1963. One Sri V. Sankara Narayana Rao of Pamur was appointed as voluntary liquidator of the company. The final meeting of the members under section 497 of the Companies Act had taken place of December 6, 1967, and the return of final winding-up by the voluntary liquidator was filed with the official liquidator on December 14, 1967. The voluntary liquidator furbished all the records available with him to the official liquidator for investigation under section 497(6) of the Companies Act. The official liquidator is in charge of the scrutiny of the accounts and books of the company which is in voluntary liquidation. The voluntary liquidator died in January, 1974, Subsequent to the death of the voluntary liquidator, no other liquidator has been appointed by the company. The official liquidator, after completion of the scrutiny of the accounts and books of the company, has to submit his report under section 497(6) of the Companies Act to the court. At that stave, the appellate-Income Tax Officer who was in charge of the company’s assessments, by his letter dated December 3, 1974, requested the official liquidator to file the income-tax return of the company for the assessment year 1966-67 informing him that he was issuing a notice under section 148 read wits section 139(2) of the Income-tax Act. Subsequently, the said notice was issued and served on the then official liquidator, Sri K. Ramachandran, on March 29, 1975, treating him as the principal officer within the meaning of section 2(350 of the Income-tax Act. The official liquidator objected to the course adopted by the Income Tax Officer with an assertion that he was only discharging a statutory function under subsection (6) of section 497 of the Companies Act for the limited purpose of filing a report to the court in respect of the company and he could not be treated as the principal officer of the company who could be called upon to file a return of income in respect of the company.

The Court Held

We hold that the official liquidator who is in charge of the scrutiny of the books and papers of the company for the purpose of submitting his report to the court about the affairs, management and administration of the company during the material period, is the ” principal officers ” within the meaning of clause (35) of section 2 of the Income-tax Act and he has a statutory duty and obligation to furnish the return of the company for the assessment year 1966-67 and assist the Income Tax Officer to complete the assessment in accordance with law.

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Whether power u/s.263 can be utilized by CIT to revise intimation u/s.143(1) ?

August 29, 2010 By taxworry Leave a Comment

A recent decision of Punjab & Haryana High Court in the case of CIT vs Kartar Singh & Co. (P) Ltd. 300 ITR 440 has taken into account almost all the conflicting decision of various High Court as referred above and also the decision of the Apex Court in the case of Rajesh Jhaveri Stock Brokers (P) Ltd. and held that CIT has no power of revision under section 263 in case of summary and acknowledgement are sent to the Assessee after filing of return.

Facts of the case

The assessee is a private limited company deriving income from contract work. It had filed its return on October 4, 1990, declaring an income of Rs. 35,470. As per the statement of case, the assessment was completed by the Assessing Officer under section 143(1)(a) of the Act on December 12, 1990. Subsequently, the Commissioner of Income-tax noticed that the assessee was not maintaining day to record of consumption of raw material and work-in-progress, etc. He, therefore, observed that the provisions of section 145(1) of the Act were attracted in the case of the assessee and the income was liable to be computed by applying the net profit rate of 10 per cent. on the total receipts without allowing further deduction on account of expenses or depreciation, etc. The Commissioner of Income-tax, Jalandhar, exercised his revisional jurisdiction under section 263 of the Act and after affording opportunity of being heard to the assessee, vide order dated March 10, 1993, held that the assessment framed on December 12, 1990, under section 143(1)(a) of the Act was erroneous and prejudicial to the interests of the Revenue. He accordingly cancelled the same directing the Assessing Officer to frame fresh assessment after applying the net profit rate of 10 per cent. on contract receipts without allowing further deduction on account of depreciation or other expenses.

The assessee assailed the order dated March 10, 1993, of the Commissioner of Income-tax before the Tribunal in appeal. The Tribunal, vide order dated April 12, 1994, allowed the appeal filed by the assessee, holding that the order passed by the Commissioner of Income-tax was without jurisdiction and invalid

The decision

We have thoughtfully considered the submissions made by learned counsel for the parties and are of the view that the question of law referred to for our opinion has to be answered in favour of the assessee and against the Revenue. We are of the considered view that the omission of the expression “intimation” from section 263 of the Act establishes the intention of Parliament to limit the power of revision of a Commissioner of Income-tax only to cases where an order has been passed. A plain reading of section 263 of the Act would alone be sufficient to reach the aforementioned conclusion. A perusal of section 263 of the Act brings out that the Legislature never intended to clothe the Commissioner with the powers of revision in summary cases where intimation and acknowledgment had been sent to the assessee after filing of the return. In that regard reliance may be placed on a recent judgment of the hon’ble Supreme Court in the case of Assistant CIT v. Rajesh Jhaveri Stock Brokers P. Ltd. [2007] 291 ITR 500. Two expressions “assessment” and “intimation” have been interpreted by their Lordships as used in section 143(1)(a) of the Act.

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Why service tax not collected can not be disallowed u/s 43B ?

August 28, 2010 By taxworry 2 Comments

There is a fundamental difference between Sales tax and Service tax. In case of Sales tax , the seller is responsible to deposit the sales tax even if he has not collected that from the customer but in case of service tax the liability of service provider arises only when he has received the value of taxable service from the customer.

Section 68  read with Rule 6 of Service Tax Rules  show that service provider becomes liable to make the payment of service tax by the 5th of the month immediately following the calendar month in which the payments are received towards the value of taxable service.

If there is no liability to make the payment to the credit of Central Government because of non receipt of payments from the receiver of the services, then it cannot be said that such service tax has become payable in terms of Clause (a) of Section 43B because that clause specifically mentions “sum payable by the Assessee“. So, in such case , disallowance   u/s 43B of such service tax amount which is yet to be collected is bad in law.

Supporting decisions

Two case laws are referred in this regard

  • ACIT vs Real Image Media Technologies (P) Ltd  306 ITR 106
  • CIT vs Noble and Hewitt India (P) Ltd. 305 ITR 324

ITAT , Chennai’s order in case of ACIT vs Real Image Media Technologies (P) Ltd  306 ITR 106

The brief facts of the case are that the Assessee company is engaged in the business of running a recording and dubbing studio, production of advertisement film and TV serials, manufacturing of specialised computers, trading in technical solutions, production of distribution of feature film and software development. During the Assessment proceedings the Assessing Officer noticed that service tax was not being routed through profit and loss accounts and the Assessee had shown liability towards service tax at Rs. 5,72,374/- as on 31.3.2002 in its balance she

Decision by Tribunal

The decision of Tribunal was based on the decision of the Hon’ble Andhra Pradesh High Court in the case of Srikakollu Subba Rao and Co. and Ors. v. Union of India and Ors. Which while deciding the issue of application of section 43B on the liability of payment of sales tax in last month of the financial year , has made the following observations:

“ In order to apply the provisions of Section 43B, it seems to us that not only should the liability to pay the tax or duty be incurred in the accounting year but the amount also should be statutorily “payable” in the accounting year.

Section 43B itself is clear to this extent. It refers to the “sum payable” in cl. (a) as well as in cl. (b). If the Legislature intended, it should have so provided that any sum for the payment of which liability was incurred but the Assessee would not be allowed unless such sum is actually paid.

Keeping in mind the object for which Section 43B was enacted, it is difficult to subscribe to the view that a routine application of that provision is called for in cases where the “taxes and duties” for the payment of which liability was incurred in the accounting year, were not statutorily payable in that accounting year.

If, under the provisions of any statute, a tax or duty is payable after the close of the accounting year, different consideration would prevail and it may not be open to the ITO to disallow tax or duty which is statutorily payable after the accounting year. In fact, the amendment brought about, which is coming into force on 1st April 1988, permitting the deduction of taxes and duties paid before the filing of the 77″ returns clearly supports the view that “taxes and duties” not statutorily payable during the accounting year do not fall to be disallowed under Section 43B.”

The second decision on the same issue is that of Delhi High court in case of CIT vs Noble and Hewitt India (P) Ltd. 305 ITR 324 .

Facts of the case

The Assessee maintains a mercantile system of accounting. Out of the service tax so collected Rs. 14.40 lakhs was not deposited by the Assessee with the concerned authorities. The Assessee neither claimed any deduction nor did it debit the amount as an expenditure in the Profit and Loss Account.

The Assessing Officer as well as the Commissioner of Income Tax (Appeals) ['CIT(A)'] nevertheless disallowed the amount and added it back to the income of the Assessee.

The Tribunal allowed relief to assessee on the ground since the Assessee had not claimed a deduction there was no question of disallowing the deduction which was not even claimed.

The decision of High Court

Learned counsel for the Revenue urges that the decision of the Calcutta High Court in Chowringhee Sales Bureau covers the point in its favour. We are unable to agree. In that case it was held that the liability to pay sales tax arose the moment a sale or purchase was effected and if an Assessee was maintaining accounts on the mercantile system it would be entitled to deduction of the estimated liability of sales tax, even though such sales tax had not been paid to the sales tax authorities. The question there concerned was the entitlement of the assessee to deduction under Sections 10(1) and 10(2)(xv) of the Income Tax Act, 1922. The decision is clearly distinguishable in its application to the present case. Here we are concerned with an Assessee who has not even claimed any deduction on the ground of service tax and has not debited the amount to its Profit and Loss Account. Moreover the provisions of Section 43B of the Act are quite clear in this regard. The decision of the Calcutta High Court in Chowringhee Sales Bureau was not in the context of the applicability of Section 43B of the Act.

In our opinion since the Assessee did not debit the amount to the Profit and Loss Account as an expenditure nor did the Assessee claim any deduction in respect of the amount and considering that the Assessee is following the mercantile system of accounting, the question of disallowing the deduction not claimed would not arise.

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Can A.O issue summon u/s 131 without any pending proceedings?

August 28, 2010 By taxworry Leave a Comment

The power of summon u/s 131 of the I T Act is great power vested with income tax authorities. These powers are equivalent to powers vested in judge of  a court under the Code of Civil Procedure, 1908 (5 of 1908), when trying a suit. The section u/s 131 of the I.T.Act is as under

131. (1) The Assessing] Officer, Deputy Commissioner (Appeals)], Joint Commissioner] , Commissioner (Appeals) , Chief Commissioner or Commissioner and the Dispute Resolution Panel referred to in clause (a) of sub-section (15) of section 144C  shall, for the purposes of this Act, have the same powers as are vested in a court under the Code of Civil Procedure, 1908 (5 of 1908), when trying a suit in respect of the following matters, namely :—

(a)  discovery and inspection;

(b)  enforcing the attendance of any person, including any officer of a banking company and examining him on oath;

(c)  compelling the production of books of account and other documents; and

(d)  issuing commissions.

The question is whether an A.O can issue notice u/s 131 without any proceeding being pending ?

If you read opening lines of section 131 of the I .T. Act, no where it is written that the powers u/s 131 is applicable during the proceeding u/s 131 . Therefore , an A.O can take plea that the notice can be issued without any pendng proceeding . However, this issue was subject matter before Mumbai Hgh court in case of G. M. Breweries Ltd and Another vs Union of India and Others [241 ITR 446 ]  . The court held as under

So far as the scope and ambit of section 131(1) of the Income-tax Act is concerned, it is clear from a plain reading of the provision itself that the powers there under can be exercised only “for the purposes of the Act”. The expression “for the purposes of the Act” must mean for the purposes of proceedings under the Act pending before the concerned authority. The powers given to the income-tax authorities under section 131(1) are powers of the court of law. While exercising these powers, the income-tax authorities act in a quasi-judicial capacity. These powers must be exercised strictly for the purposes set out in sub-section (1) of section 131 of the Act and not for any extraneous purposes. The powers under section 131 can be exercised only if proceedings are pending before the authority concerned under the Income-tax Act. The same is the position under the Wealth-tax Act and the Gift-tax Act. In the present case, the petitioners seriously challenged the exercise of the powers by the Income-tax Officer. It was contended by the petitioners before the Income-tax Officer that no proceedings whatsoever were pending before him for the purpose for which the books of account and documents called for could have been required. The jurisdiction of the Income-tax Officer to issue the summons was also questioned. The Income-tax Officer did not bother to consider the same. On the other hand. he directed the petitioners to comply with the same under the threat of penalty for non-compliance. It is in such circumstances that the petitioners challenged the summonses and notices before this court.

As stated above, none of the contentions of the petitioners in the writ petition have been challenged by the respondents by filing any affidavit nor the records have been produced. There is even no appearance on behalf of the Revenue to oppose the writ petition. Even at the time of admission, the notice before admission issued by this court went unattended.

Under these circumstances, we are left with no option but to quash the impugned summonses and all consequential notices issued for non-compliance of the same. In the result, the writ petition is allowed with no order as to costs.

Therefore, if the A.O issues notice u/s 131 without any pending proceeding, such notice is illegal and bad in law.

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10 answers every NRI wants to know about demat account !

August 27, 2010 By taxworry Leave a Comment

Where can an NRI/PIO open a demat account?

Ans. NRI/PIO can open a demat account with any Depository Participant [DP] of NSDL. Almost every bank in India today also gives service of demat account . So, you can contact your bank , and they will do the rest .

Does an NRI need any RBI permission to open a demat account?

Ans. Generally permission is not required from RBI to open a demat account.  However, credits and debits from demat account may require general or specific permissions as the case may be, from designated authorised dealers.

If NRI/PIO desires to make investments under different schemes, can he hold all such securities in a single demat account?

Ans. NRIs can not hold all types of securities in one single demat account. Separate demat account is required Securities received against investments under ‘Foreign Direct Investment scheme (FDI)’, ‘Portfolio Investment scheme (PIS)’ and ‘Scheme for Investment’ on non – repatriation basis have to be credited into separate demat accounts. Investment under PIS could be on repatriation or non – repatriation basis. Investment under FDI scheme is on repatriation basis.

Does an NRI require RBI permission for dematerialiation/rematerialisation of securities?

Ans. No special permission is required.  Only those physical securities which already have the status as NR – Repatriable / NR- Non-Repatriable can be dematerialised in the corresponding Depository Accounts.

Can securities purchased under repatriable and non-repatriable category be held in a single demat account?

Ans.     No. An NRI must open separate demat accounts for holding ‘repatriable’ and ‘non-repatriable’ securities.

In case a person who is resident in India becomes a non-resident, will he/she be required to change the status of his/her holding from Resident to Non-Resident?

Ans.     As per section 6(5) of FEMA, NRI can continue to hold the securities which he/she had purchased as a resident Indian, even after he/she has become a non resident Indian, on a non-repatriable basis.

In case a non-resident Indian becomes a resident in India, will he/she be required to change the status of his/her holding from Non-Resident to Resident?

Ans.     Yes. It is the responsibility of the NRI to inform the change of status to the designated authorised dealer branch, through which the investor had made the investments in Portfolio Investment Scheme and the DP with whom he/she has opened the demat account.

Can NRIs invest in shares, debentures and units of mutual funds in India?

Ans.    NRIs are permitted to make direct investments in shares/ debentures of Indian companies/ units of mutual fund. They are also permitted to make portfolio investments i.e. purchase of share / debentures of Indian Companies through stock exchange. These facilities are granted both on repatriation and non-repatriation basis.

Can an NRI purchase securities by subscribing to public issue? What are the permissions /approvals required?

Ans.     Yes. The issuing company is required to issue shares to NRI on the basis of specific or general permission from GoI/RBI. Therefore, individual NRI need not obtain any permission.

Does an NRI require any permission to receive bonus/rights shares?

Ans.     No.

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New tax rate proposed under Direct Tax Code !

August 26, 2010 By taxworry Leave a Comment

Direct Tax Code is cleared by Cabinet and now the road for introducing the DTC Bill in parliament is paved. There is some relief given in form of small tax rate cut.

The corporate tax rate, which currently stands at 33% has been reduced to 30%, including cess and surcharge. The original draft had proposed 25%, but it has been revised upwards.

  1. The basic tax exemption has been set at Rs 2 lakh.
  2. Incomes between Rs 2 lakh and Rs 5 lakh will be taxed at 10%,
  3. income between Rs 5 lakh and Rs 10 lakh will be taxed at 20% and
  4. for income above Rs 10 lakh a tax of 30%. Tax exemption for senior citizens will be Rs 2.5 lakh.
  5. Dividend distribution tax and capital gains tax will remain unchanged.
  6. Wealth tax has been set at 1% above Rs 1 crore, while
  7. minimum alternate tax or MAT has been set at 20% on book profits.
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