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Comments on Taxation Laws Amendment Bill, 2006 by Ved Jain
June, 21st 2006

Amendments proposed by the Taxation Laws Amendment Bill, 2005

 

 Ved Jain

The Honble Finance Minister while presenting his budget has stated his intention to introduce a separate bill on amendments to  the direct and indirect tax laws during the budget session itself.   Keeping his commitment, the Finance Minister introduced the Taxation Laws (Amendment) Bill, 2005 in the Lok Sabha on 12th May, 2005.   The important changes proposed in the bill are as under:

1.     Filing of Income Tax Return by Educational and Medical Institution having annual receipt less than Rs. 1 Crore.

 

All educational and medical  institutions claiming exemption under Section 10(23C) shall be required to file the income tax return in case the total income exceeds (before claiming exemption under Section 10(23C)) the maximum amount not chargeable to tax, i.e., Rs. 1 lac at present.  Presently only such institutions which have annual receipts of more than Rs. 1 Crore are required to file returns. The new amendment requires that even institutions where annual receipt is less then 1 crore but total income before exemption exceeds the maximum amount not liable to tax shall also be required to file the return of income.

2.                Audit of educational and medical institutions having annual receipt of exceeding 1 crore

 

All educational and medical institutions claiming exemption under Section 10(23C) shall be required to get the accounts audited by a Chartered Accountant in case the total income exceeds the maximum amount which is not chargeable to tax (presently Rs. 1 lac). 

        This requirement of audit shall be applicable to all educational and medical institutions where the annual receipt exceeds Rs. 1 Crore.   The criteria for audit shall be the total income before claiming exemption under Section 10(23C).   

Thus an educational institution having say receipt of Rs. 5 Crores and expenditure of say Rs.4,99,50,000 may not be required to get the accounts audited as its total income does not exceed the maximum amount not chargeable to tax.

Further, trusts and institutions notified by the Central Government claiming exemption under section 10(23C)(iv) and public religious institution notified by the Central Government and claiming exemption under section 10(23C)(v) shall also be required to get the account audited in case the total income exceeds the maximum amount which is not chargeable to tax,i.e., Rs. 1 lac at present  before exemption under this section.

The new requirement of getting the accounts audited and filing return shall be effective from the Asstt. Year 2006-07.

3.                Educational institutions, hospital and medical institutions to obtain one time approval

 

The present system of obtaining approval periodically in case the annual receipts are more than Rs. 1 Crore is being replaced by  one-time approval.   This approval shall be granted or rejected within a period of 12 months from the end of the month in which such application is received.  The approval granted before this Bill receives the assent of the President shall be effective for the period for which the same has been given.

 

 

  1. Audit of Charitable Trust and institution  claiming exemption under Section 11

 

        The condition of getting the accounts audited by the trust and institution claiming exemption under Section 11 or 12 of the Act in case the total income without giving effect to the provisions of Section 11 and 12 exceeds Rs.50,000 is being amended to provide now that the audit shall be required when the total income of the trust or institution exceeds the maximum amount not liable to tax, i.e., Rs. 1 lac at present.   Further, charitable trust or institution which have total receipts including voluntary donation, donation towards corpus, income from rent, interest etc., less than Rs. 1 lac in the year shall also not be required to file the return as under the provisions of Section 139(4A) only those trusts and institutions are required to file return whose total income including from voluntary donation, contribution towards corpus exceeds the maximum amount not chargeable to tax.  In view of the basic exemption limit raised by the Finance Act, 2005 from Rs.50,000 to Rs.1,00,000, the trusts and institutions falling in the total income bracket of Rs.50,000 to Rs.1,00,000 have got the exemption from the requirement of filing the return of income. 

5.          Approval under Section 35 to university, college and institution for scientific research

 

Approval by Central Government to an association, university, college or other institution under clause (ii) and (iii) of Section 35(1) of the Act shall now be one time affair and shall be granted within a period of 12 months from the end of the month in which such application is received.  Under Section 35(1) expenditure on scientific research is eligible for weighted    deduction and includes payment to approved university, college or other institution to be used for scientific research.   Further, it is proposed to empower the Central Board of Direct Taxes to lay down the rules for granting approval and the guidelines and conditions to be fulfilled.  The amendment shall be effective from the date from which this bill receives the assent of the President.  Approval granted before that date shall continue to be effective for the period for which the approval was given.

6.     Approved institutions under Section 35(1) to file return of income

 

        A new sub-section (4D) is being inserted in Section 139 to provide that university, college or other institutions which are approved under clause (ii) and clause (iii) of Section 35(1) of the Act for scientific research shall be required to file return of income.  The requirement of filing return of income shall be deemed to be a requirement of Section 139(1) and as such the penalty for failure to file return of income shall be governed in such cases by Section 271F of the Act which prescribe penalty of Rs.5,000 in case return is filed before the end of the asstt. year as against minimum penalty of Rs.100 per day and maximum penalty of Rs.200 per day leviable under Section 272A(2)(e) of the Act in the case of charitable trust, institution, claiming exemption under Section 11 or 12 which are required to file return of income under Section 139(4A) of the Act. 

7.       Payment for expenditure to be made by account payee cheque

         Provision of Section 40A(3) is being amended to ensure that the payment for expenditure is made only by account payee cheque.  The present provision of allowing the expenditure in case the payment has been made by crossed cheque is being amended to ensure that the cheque or draft is issued in the name of the payee only and it gets credited in payees bank account to have an effective audit trail.  This will discourage payment being made through crossed draft whi.ch usually gets endorsed.  However, it may create practical difficulty in case of those buyers who come from different cities to buy goods and bring draft in their own name for making spot payment as in such cases the draft has to be in the name of the payee only which the buyer may not be aware at the time when he gets the draft prepared. The above amendment shall be effective from the date when the bill receives the assent of the President. 

8.     Exemption limit for gift increased to Rs.50,000

        Provision of Section 56(a)(v), whereby any sum of money received without consideration by an individual or HUF is considered  income,  is being amended to provide that the same will be treated income when the aggregate value of money received without consideration in any previous year from any person or persons exceeds Rs.50,000.  By this amendment a cap has been put on the total amount of gift, one can receive during the year.    As per existing provision, there was a possibility of receiving gift of Rs.25,000 each on different dates or from different persons and the same being not liable for taxation.   However, with the above amendment the total amount of gift has been restricted to Rs.50,000 during the year irrespective of the fact whether the same has been given on different dates or from different persons.

        Further, the list of exemption has been expanded to exclude sum of money (gift) or gift, donation or grant received from any trust or institution registered under Section 12AA or covered by provision of Section 10(23C) or from a local authority, i.e., panchayat, municipality, district board and cantonement board etc.  It may be noted that the provisions of Section 2(24)(xiii) have not been covered by the amendment to include sum received by way of gift as income by including sub-clause (vi) of Section 56(2) which shall be applicable in respect of gift received on or after 1st April, 2006.     The above amendment shall be effective in respect of the sum of money/gift received on or after the 1st day of April, 2006.   However, exemption in respect of the gift received from local authority or charitable institution shall have retrospective effect i.e.,  from the Asstt. Year 2005-06.

9(i).  TDS provisions extended to royalty and rent for plant and machinery etc.

 

        The scope of Section 194-I in respect of tax to be deducted on payment of rent is being extended by including payment of rent for machinery, plant, equipment, furniture or fittings also.   The liability to deduct tax shall be irrespective of the fact whether any or all of these assets are owned by the payee or not.   The above amendment shall be effective from the date when the bill receives the assent of the President.

  (ii)  Provision of Section 194J in respect of deduction of tax at source on payment of professional and technical services is being extended to include payment of royalty and payment of non-compete fee.   Now the tax will be required to be deducted at source in case where payment of such sum  is of Rs.20,000 or more. Royalty shall have the meaning as given in Explanation 2 to Section 9(1)(vi) of the Act which will include lumpsum consideration excluding those payments which are chargeable under the head capital gain in the hands of recipient.  The above amendment shall be effective from the date when the bill receives the assent of the President.

10.    Expenditure on account of rent and royalty to be disallowed on failure to deduct tax at source

 

         Provision of Section 40(a)(ia) is being extended to include payment of rent and royalty also.   As per this section, where any payment is made to a resident of any amount which is liable for deduction of tax at source, then the said amount, in case of failure to deduct tax at source or make payment of such tax within the time prescribed,  is not eligible as expenditure while computing income of the business or profession.,  The above amendment shall be effective from the Asstt. Year 2006-07.  Since the liability to deduct tax at source in respect of royalty and rent for plant and machinery shall arise from the date when this bill is approved by the President, the default for such payment will be taken into account from that date only.   However, the default in respect of payment of rent for land and building which is already liable for tax deduction at source, shall be effective from the 1st day of April, 2005 itself.

11.    Power to enhance or reduce penalty

         Provision of Section 275 relating to the bar of limitation for imposing penalties is being amended to provide that in case where the assessment is subject matter of appeal either before the Commissioner (Appeals), Appellate Tribunal, High Court or Supreme Court or revision before the Commissioner and if an order imposing penalty has been passed before the order of appeal or revision is received by the Commissioner or Chief Commissioner or order under Section 263 or Section 264 is passed by the Commissioner a further order, imposing or enhancing or reducing or cancelling or dropping the proceeding for imposing the penalty can be passed on the basis of the assessment order as revised after giving appeal effect.  However, this order has to be passed within a period of 6 months from the end of the month in which the appeal order or revision order is received by the Commissioner. 

This provision will help both the taxpayer as well as the Revenue.  In case the taxpayer gets a relief in the quantum appeal and penalty has been imposed before that, he can get it amended under this provision.   Similarly, in case penalty has been imposed on a reduced amount consequent to the order of the Appellate Authority and the Revenue succeeds in the further appeal, the Revenue shall be entitled to levy or increase the penalty.    Since the time limit prescribed is with reference to the date of the Appellate order only, it may further help the taxpayer to get the penalty order amended or cancelled where he succeeds in quantum appeal and no appeal, per chance, has been filed against the penalty order. Provision of Section 246A is being amended simultaneously to provide that such amended order of penalty shall be an appealable order.   The above amendment shall be effective from the date when the bill received the assent of the President.

12.       Income of North-eastern Development Finance shall be exempt under Section 10(23BBF)

 

A new section 10(23BBF) is being introduced to provide that income of North-eastern Development Finance shall be exempt.   The above amendment shall be effective from the Asstt. Year 2006-07.

 

13.            Rectification to be carried out in case the export proceeds are received late

 

        The benefit of rectification under Section 155 in case export proceeds are realized late is being extended to include those assesses which are eligible for claiming deduction under Section 10A, 10B or 10BA of the Act.  The above amendment shall be effective from the Asstt. Year 2006-07.

14.    Tax Recovery Officer to also perform the function of Assessing Officer

 

        Provision of Section 2(44) is being amended to provide that the Tax Recovery Officer (TRO) can also exercise or perform such power or function which are conferred or assigned to an Assessing Officer (AO) under the Act.   The above amendment shall also be effective from the date the bill receives the assent of the President.

15.   Tax to be rounded off to Rs. 10

        Provision of Section 288B is being amended to provide for that tax is to be round off to the nearest multiple of Rs. 10 as against the present provision of rounding off to nearest Re. 1.   The above amendment shall be effective from the date when the bill receives the assent of the President.  

 

 

 
 
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