Section 10AA of the Income-Tax Act, 1961 ushered in by the Special Economic Zones Act, 2005, along with a few other Sections, confers a 15-year tax holiday for units located in Special Economic Zones (SEZs) with the first five years allowed 100 per cent exemption with no quid pro quo, the next five a 50 per cent exemption, again no quid pro quo, and the last five granted an exemption of zero to 50 per cent depending on how much is debited to the SEZ Reinvestment Reserve.

Convertible foreign exchange

The absence of two specific provisions in the new regime is worrying. The first, the conspicuous absence of the requirement to earn one's revenue in convertible foreign exchange as a precondition for grant of this exemption a requirement which has hitherto characterised practically all Sections conferring exemption for foreign exchange earnings, be it the now-defunct Section 80HHC or Section 10A.

One may contend that with the country sitting on a comfortable forex reserve, there was no need to continue to insist on positing the tax incentive on earning of convertible foreign exchange. But this goes against the basic condition underpinning the Section that the exemption is only to the extent attributable to export activities. The government ought to have insisted on export proceeds being designated and received in convertible foreign exchange, unless, of course, the intention is to hint at the impending full convertibility of the rupee.

Second-hand machinery

The second de rigueur safeguard that characterises other location-specific exemptions regime but absent in Section 10AA is the prohibition on installing second-hand plant and machinery in excess of 20 per cent of the total investment thereon, unless such second-hand machinery is imported.

The absence of this safeguard may draw potential entrepreneurs into buying existing assets installed in non-SEZ areas besides facilitating shifting of a unit lock, stock and barrel from a non-SEZ area to an SEZ. One does not know whether this omission was deliberate or an oversight.

It is possible to contend that in an era of M&A, where the accent is on better use of existing facilities rather than on going for greenfield projects, especially in an industry facing a glut situation, the omission if anything is well-founded.

A discrimination

But Section 54GA ushered in by the SEZ Act does not take this objective forward and reflects muddled thinking when it exempts capital gains from transfer of machinery, plant, land and buildings of industrial undertakings located in urban areas from tax, provided the capital gain there from is used to purchase one or more of these assets in a SEZ. If the idea is to encourage shifting of units to SEZs, then no discrimination should have been made between units in urban and in non-urban areas.

S. Murlidharan
(The author is a Delhi-based chartered accountant.)