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The Budget has made it tougher for tax evaders, and simpler for small businesses to file returns. Small businesses and service providers now have no reason to shy away from paying taxes because they have been brought under the provision for presumptive taxes.

At the same time, concealing income from tax authorities has become more difficult. If tax authorities find jewellery, money,, or other valuables relating to undeclared income from a previous year during a search, the assessee can be penalised, even if the return has been filed, but these assets or income have not been declared. Earlier, the law penalised non-disclosure arising on account of non-filing of returns. “The provision clarifies the intent of the law,” said a tax lawyer, who did not wish to be named. The revised provision will be effective retrospectively from June 1, 2007.

For small businesses and service providers with a turnover of Rs 40 lakh or lower, it will be simpler to file returns as the taxable income will be deemed to be 8% of their total sales. These businesses will not be required to maintain books of accounts or pay any advance tax. Till now, this provision was applicable only to those in the business of civil construction. “By giving them the benefit of simplicity, the government is trying to bring under the tax net those businesses that are not filing returns for fear of having to maintain books of accounts and other complexities.”

This new provision will apply to all individuals, HUFs and partnership firms (excluding limited liability partnerships) from April 1, 2011. The same provision will also be applicable to retail businesses, which were earlier taxed on a deemed income of 5% of their total turnover.

However, the provision will not apply to those in the business of hiring or leasing goods carriages (up to 10 vehicles). These businesses will continue to be covered under Section 44AE, but their deemed taxable income will now be Rs 5,000 per month per heavy goods vehicle — up from Rs 3,500. For non-heavy goods vehicles, the presumed income will be Rs 4,500 per month per vehicle — up from Rs 3,150. The annual minimum taxable income for these businesses thus stands increased to Rs 60,000 per heavy and Rs 54,000 per non-heavy goods vehicle.

SUMMARISED BRIEF PROVISIONS-
1.Threshold exemption limit for individual, HUF, BOI and AOP increased by Rs. 10,000/-.

2.Threshold exemption limit for women increased by Rs. 10,000/- and for senior citizen increased by Rs. 15,000/-.

3.Surcharge on all assessees except company is abolished.

4.No changes in corporate Tax rates.

5.Tax holiday in respect of export under section 10a/10b is extended for further one year i.e. up to A.Y. 2011-12. further hike computing the exemption under section 10aa of the act, the total turnover of the assessee is substituted with total turnover of the undertaking.

6.Section 40a(3) is amended to increase the limit of cash payment in respect of expenses of plying hiring or leasing goods carriages from Rs. 20,000 to Rs. 35,000 per day per person.

7.Definition u/s 56 of the act is enlarged to include specified properties other than a sum of money received without consideration or for inadequate consideration exceeding Rs. 50,000/- within the preview of the act.

8.Section 80ccd is amended to allow the deduction in respect of pension scheme to any assesses in addition to assesses being employee.

9.Section 80dd is amended to increase the deduction from Rs. 75,000/- to Rs. 1,00,000/- in respect of expenditure on a dependent who is a person with severe disability.

10.Scope of section 80e is widened by enlarging the definition of higher education to include any couRs.e of study after passing the senior examination. now deduction u/s 80e is available in respect of loan taken to puRs.ue any couRs.e of study after passing the senior secondary school.

11.Relief of section 89 of the act is not available in respect of payment received on retirement/termination where the assessee is also getting ezemption under section 10(10c) of the act and vice-veRs.a.

12.FBT is abolished and fringe benefit is taxable in the hands of employee as perks.

13.Mat is increased from 10% to 15%. however, mat credit is available for ten subsequent assessment year instead of seven assessment year available presently.

14.Defination of book profit is amended retrospectively from AY 1998-1999 to include the provision for diminution of value of any assets.

15.Commodities transaction tax (CTT) is abolished w.e.f. AY 2010-2011.

16.Amendment in section 145a to provide that the interest received by an assessee on compensation or enhanced compensation shall be deemed to be his income in the year in which it is received, irrespective of the method followed by the assessee.

17.TDS rates of rent & contractoRs. has been changed from 1st october 2009.

18.Higher tax withholding rates has been prescribed in case of deductees not having plan.

19.Enhancement of advance tax limit from Rs. 5,000/- to Rs. 10,000/-.

20.Document identification number (din) will be alloted by the department for every notice, correspondence etc.

21.enhancement of wealth tax exemption limit from Rs. 15,00,000/- to Rs. 30,00,000/-.

Tax holiday in respect of exemption of export u/s 10A/10B further extended to one year.

Tax holiday in respect of export under section 10A/10B is extended for further one year i.e. up to A.Y. 2011-12.

Further while computing the exemption under section 10AA of the Act relating to special provision in respect of newly established Units in Special Economic Zones, the total turnover of the assessee is substituted with total turnover of the undertaking. The amendment will be effective w.e.f AY 2010-2011.

Definition of charitable purpose is amended from AY 2009-10 to provide the exemption u/s 11 of the Act to trust engaged in such activity.

Definition of charitable purpose is amended from the AY 2009-10 to include preservation of environment (including watersheds, forests and wildlife) and preservation of monuments or places or objects of artistic or historic interest along with relief of the poor, education and medical relief to provide the exemption u/s 11 of the Act to trust engaged in such activity.

TP Regulation

It has been clarified that where more than one price is determined by the most appropriate method, the arm length price shall be arithmetical mean of such prices. It is further provided that the variation between the arm length price so determined and the price at which the international transaction has actually been undertaken if within the range of 5% difference, then the same shall be deemed to be an arm's length price.

Further the board has been authorized to make rule for 'Safe Harbour', i.e. in the circumstances in which the income tax authorities shall accept the transfer price declared by the Assessee. Also Dispute Resolution Panel set up has been recommended w.e.f. 1st October 2009 to address the disputes relating to additions to be made by the TPO and additions in case of foreign companies.

FBT is abolished and fringe benefit is taxable in the hands of employee as perks.

FBT is abolished w.e.f. A.Y. 2010-2011. Consequently fringe benefit is taxable in the hands of the employees under section 17(2) of the Act. ESOP, contribution to superannuation fund exceeding Rs. 1,00,000/- and value of other prescribed fringe benefit will be taxable in the hands of the employees as perks w.e.f. A.Y. 2010-2011.

MAT is increased from 10% to 15% of book profit. Further MAT credit is available for ten subsequent years.

MAT is increased from 10% to 15% of the book profit. MAT credit is available for ten subsequent assessment year instead of seven years available presently. Further Definition of Book profit is amended retrospectively from AY 1998-1999 to include the provision for diminution of value of any assets.

Tax Deduction at source(TDS)

The new TDS rates of Rent & contractor w.e.f. 1st October 2009 are as under:-

In case of Rent:-

-Rent of plant, machinery & equipment \ 2% -Rent of land, building or furniture to an Individual/HUF & others 10%

However, the rate of TDS @ 20% will be charge if the PAN No. is not quoted by the deductee w.e.f. 01/04/2010.

In case of Contractor:-

All contractual payment to individual / HUF the TDS rate will be 1%.

However in case of other than individual or HUF the TDS rate is 2% including the payment of advertisement.

Contractor / sub-contractor engaged in transport business, NIL rate of TDS will be applicable if the transporter quotes his PAN. If the PAN no. is not quoted the rate will be 1% for individual / HUF transporter & 2% for other transporter.

However, the TDS rate @ 20% in all cases of contractor if the PAN No. in not quoted by teg deductee w.e.f. 01/04/2010. As per section 194C "work" shall not include manufacturing or supplying a product according to the requirement or specification of a customer by using raw material purchased from a person other than such customer as such a contract is a contract for 'sale', Further for manufacturing or supplying a product according to the requirement or specification of a customer by using material purchased from such customer, is covered within the definition of 'work'. In such a case TDS shall be deducted on the invoice value excluding the value of material purchased from such customer if such value is mentioned separately in the invoice.

Where the material component has not been separately mentioned in the invoice, TDS shall be deducted on the whole of the invoice value.

Verification of TDS Returns

As per new section 200A, while processing the statement of TDS made under section 200, the sums deductible under Chapter XVII-B shall be computed after making adjustments of any arithmetical error or apparent incorrect claim in the statement and interest shall be charged on the sum so computed.

It is proposed to provide that after making adjustment, tax and interest would be calculated and sum payable by the deductor or refund due to the deductor will be determined. An intimation will be sent to the deductor informing him of his tax liability or the refund due to him within one year from from the end of the financial year in which the statement is filed.

No intimation shall be sent after the expiry of aforesaid period.

Time limit for passing the orders of TDS

Presently, there is no limitation of time for passing the order u / s 201 (1) for making the deductor assessee in default.

Now the AO is required to pass the order within two years from the end of the financial year in which the statement of TDS is filed by the deductor and where no statement is filed by the deductor, such order should be passed within four years from the end of the financial year which the payment is made or credit is given.

Further there is no time limit for aforesaid order:- The TDS deducted by deductor but no TDS deposited;

The employer has failed to pAY tax wholly or partly; as the employee would not have been paid tax on perquisite;

The deducted is a non-resident as it mAY not be administratively possible to recover the tax from the non-resident.

Furnishing of PAN to the deductor (Section 206AA)

The aforesaid section w.e.f. 1st April 2010 provides that if any person fails to furnish his PAN to the deductor, then the tax will be deducted at the rate mentioned in the relevant provisions of the Act or at the rate in force or at the rate to 20%, whichever is higher.

Liability of Advance Tax u/s 208

W.e.f. 1st April 2009 the liability for payment of advance tax will be applicable only if the amount of such tax payable during the year Rs.10,000/- or more.

Document Identification Number (DIN) (Section 282B)

From 1st October 2010 the income tax department shall allot a computer generated document identification number in respect of every notice, order, letter or any correspondence issued by them. Without issue of DIN, the documents issued shall be treated as invalid and shall be deemed never to have been issued.

Further every documents, letters or any other correspondence received by the income tax authority, shall be accepted after allotting & quoting of computerized generated document identification number. Without quoting the document identification number, the documents shall be treated as invalid and shall be deemed never to have received.

(a)Extension for time limit for obtaining exemption from EPFO

The time limit for obtaining exemption under section 17 of the EPF & MP Act has been extended from 31st March 2009 to 31st December 2010.

Wealth Tax

The threshold limit of wealth tax has been increase from Rs. 15 lakhs to Rs. 30 lakhs from AY 2010-11.

Service Tax

A. New Services introduced (to be applicable from the date of notification after passage of finance (No.2) Bill 2009)

1. Services provided in relation to transport of goods by rail;

2. Services provided in relation to transport of

a) Coastal goods; and

b) Goods through Inland Water including National Waterways

3. Services provided in relation to advice, consultancy or assistance in any branch of law excluding appearance before any court or authority. Individuals are exempted.

4. Cosmetic and Plastic Surgery Services.

B. Scope of certain services extended/ altered (to be applicable from the date of notification after passage of Finance (No.2) Bill 2009)

1.Business Auxiliary Services: Definition amended to provide that only those processes, which result in the manufacture of 'excisable goods' are excluded fro the purview of the definition.

2.Stock-broker: Definition amended to exclude sub-broker.

C. Exemptions provided ( effective from immediate effect)

1.Club or Association Services: To Federation of Indian Export Organizations and Specified export Promotion Councils, upto 31.03.2010.

2.Banking and other Financial or Foreign Broking Services: Inter-bank purchase and sale of foreign currency between scheduled banks.

D. Certain changes in Act & Rule (effective from immediate effect)

1.CENVAT Credit Rules 2004: Rule 6(3), provider of both taxable and exempted services, who does not maintain separate accounts of inputs, shall pAY an amount equal to 6% of the value of exempted services instead of 8%.

2.Works Contract Rules, 2007: Explanation provided being modified to allow benefit of optional compensation scheme only to such works contracts where the taxpayer declares the entire value of goods and services used in the execution of the works contract as the 'gross value' chargeable for works contract.

E. Refund Scheme for Exporter of Goods

1.Services of 'Transport of goods by road' and 'Commission paid to foreign agents' have been exempted from the levy of service tax, if the exporter is liable to pAY service tax on reverse charge basis. For other services, the exports shall be required to claim refund after paying service tax.

2.Other Salient features of the Scheme:

a)Terminal Handling Charges is being added in the list of eligible services:

b)Time limit for filing claim is increased to one year from the date of export.

c)Condition for filing claim once in quarter has been dispensed off.

d)Simplified format prescribed for filing claim:

e)Self certification of documents is introduced where refund claim does not exceed 0.25% of f.o.b value of exports under claim.

f)In case refund claim exceeds 0.25% of f.o.b value of exports under claim, the documents submitted shall be certified by Chartered Accountant who audits the annual accounts.

g)Refunds shall be granted within one month without any pre-audit.

ISSUES FOR COMPANY FORMATION BY OVERSEAS COMPANIES / INVESTORS

A. Government Policy on Foreign Direct Investment:

􀀩 The government allows foreign companies to set up majority controlled/whollyowned

subsidiaries in most sectors except in few sectors like Banking, telecom, civil

aviation where the cap is 49%-74%. The balance is to be held by local partner or public.

􀀩 In few strategic sectors like retailing, property dealing, publishing, defence, no foreign

investment is permitted.

􀀩 In all other cases, the foreign company can follow the automatic approval route i.e. it

has to just file a Memorandum of Information with the Reserve Bank of India and in

some sectors, holding above cap i.e. 49% or 74% is required to obtain approval of the

Govt. authorities.

􀀩 However, if the automatic approval norms are not to be followed, then the foreign

company will have to approach the government for special approval.

􀀩 A subsidiary is allowed to remit royalty / technical fees to its parent as long as its

within the guidelines prescribed by the government.

􀀩 Once the approval is obtained, the Indian company is free to remit dividends or other

payments payable in the normal course of business to its parent of course after the

payment of dividend distribution tax.

B. Government Policy for setup of Branch / Liaison Office / Site Office in India by

a Foreign Company :

􀀩 Procedures :

A Foreign Company desiring to establish a Branch / Liaison Office / Site Office in

India shall apply to reserve Bank of India in Form FNC 1 for approval except in case of

setting up at Special economic Zone.

􀀩 Permissible Activities :

A foreign company can setup a Branch / Liaison Office / Site Office, only if it engage

in following activities.

Branch Office

(i) to represent the parent company or other foreign companies in various matters in

India, for example, acting as buying/selling agents in India, etc.;

(ii) to conduct research work in which the parent company is engaged provided the

results of the research work are made available to Indian companies;

(iii)to undertake export and import trading activities;

(iv) to promote possible technical and financial collaboration between Indian

companies and overseas companies.

Liaison Office

(i) Representing in India the parent company / group companies.

(ii) Promoting export import form / to India.

(iii)Promoting technical/financial collaborations between parent / group companies

and companies in India.

(iv) Acting as a communication channel between the parent company and Indian

companies.

Project Office

Having activity relating and incidental to a project executed in India.

Site Office

Having a sub-office at the site of the project executed by the foreign Company

􀀩 Remittance of Profit / Surplus :

A foreign company can be permitted by RBI to remit outside India profits of the

branch / surplus of the project on its completion, net of applicable Indian taxes (which

at present is 42.23%) on submission of following :

􀂉 Annual Audited Accounts

􀂉 Obtaining of Chartered Accountant Certificate on certain specified matters.

C. Wholly owned Subsidiary Company:

A foreign company can also open a wholly owned subsidiary company in India, which

for all purposes be an Indian Company. This company is expected to follow all the rules

and regulations that are applicable to an Indian company. There is no requirement of

obtaining RBI to open such company.

This company, out of its profits, can pay the regular Income Tax of 33.99% and then can

declare dividend and can remit the money to the parent company after paying a Dividend

Distribution Tax, which at present is 17%.

D. Company Formation :

This would mean setting up a new Indian company with the share holdings by

individuals and/or a company incorporated locally/abroad.

􀀩 The first step in the formation of a company is the approval of the name by the

Registrar of Companies (ROC) in the State in which the company will maintain its

Registered Office. This approval is provided subject to certain conditions: for instance,

there should not be an existing company by the same name. Further, the last words in

the name are required to be "Private Limited" in the case of a private company and

"Limited" in the case of a Public Company.

􀀩 In the next step, the Memorandum of Association and Articles of Association are to be

drafted and submitted to the ROC for the purpose of incorporation of a company.

􀀩 The ROC will give the certificate of incorporation after the required documents are

presented along with the requisite registration fee, which is scaled according to the

share capital of the company, as stated in its Memorandum. A private company can

commence business on receipt of its certificate of incorporation

􀀩 The Indian company, if its private limited company, will have to have atleast 2

directors. Normally alternate directors are appointed for foreign directors. There

should be atleast 4 board meetings in a year and the first meeting should be held in the

first quarter in which the company is incorporated

􀀩 Subsequently, the Indian company should file for various registrations such as importexport

Code, sales tax, excise, service tax, profession tax, etc (as may be applicable)

before starting any commercial activity

E. Transfer Pricing:

􀀩 The Company has to follow Transfer Pricing regulation at the time of entering into

international transaction with the associated enterprises.

􀀩 Two enterprises shall be deemed to be associated enterprises if:

􀂉 One enterprise holds, directly or indirectly, shares carrying not less than twentysix

per cent of the voting power in the other enterprise; or

􀂉 Any person or enterprise holds, directly or indirectly, shares carrying not less than

twenty-six per cent of the voting power in each of such enterprises; or

􀂉 A loan advanced by one enterprise to the other enterprise constitutes not less than

fifty-one per cent of the book value of the total assets of the other enterprises; or

􀂉 One enterprise guarantees not less than ten per cent of the total borrowings of the

other enterprise; or

􀂉 More than half of the board of directors or members of the governing board, or one

or more executive directors or executive members of the governing board of one

enterprise, are appointed by the other enterprise; or

􀂉 More than half of the directors or members of the governing board, or one or more

of the executive directors or members of the governing board, of each of the two

enterprises are appointed by the same person or persons; or

􀂉 Manufacturing or processing of goods carried out by one enterprise with the use of

know how, patents, trademark, licenses of which the other enterprise is owner and

having exclusive rights; or

􀂉 90% or more of the raw material and consumables required for manufacturing and

processing of goods carried out by one enterprise are supplied by another

enterprise and prices and other conditions relating to supplies are influenced by

that other enterprise; or

􀂉 Goods manufactured by one enterprise are mainly sold to another enterprise and

prices and other condition relating to sale are influenced by that other enterprise;

or

􀂉 Existence of relationship of mutual interest between two enterprises.

􀀩 As per transfer pricing regulation, the company has to:

􀂉 Maintain specified records as prescribed in respect of each international

transaction with associated enterprise

􀂉 Obtain a certificate of Chartered Accountants stating that above stated transaction

in a particular financial year are entered at arms length price..

F. Taxation :

􀀩 Income Tax

􀂉 Every company is required to obtain the Permanent Account Number. (PAN)

􀂉 Every year, the company has to estimate the total income for the entire year and

pay Advance Tax at the prescribed rates in 4 installments in the year. Viz. 15th June,

15th September, 15th December and 15th March.

􀂉 After the end of the year, the company is required to prepare the Computation of

Total Income and the Return of Income and file the same with the Income Tax

Department along with the Audited Annual Accounts.

􀂉 The assessment of this tax Return would be done within a period of one year from

the date of filing the return.

􀂉 Every company is also required to obtain the Tax Deduction Account Number.

(TAN)

􀂉 On the prescribed expenditure that are incurred by the company, the company is

required to deduct tax at source at the prescribed rates and pay to the credit of

government before the prescribed dates.

􀂉 The company is required to issue the certificate for such tax deduction at source to

the payee.

􀂉 The company is also required to file an eTDS Return in respect of all the tax

deductions certificates issued by the company.

􀂉 The Indian company will be subject to normal tax rates as applicable to any other

domestic company.

􀂉 In case of royalty, technical fees, one can avail of the concessional tax rates as

prescribed in the Double Taxation Agreement with India, if any

􀂉 In case there are transactions between the Indian company and the parent or any of

the group companies, then Transfer Pricing guidelines as prescribed by the

Income Tax Act will have to be adhered to

􀀩 Value Added Tax (VAT)

Every company who is engaged in the transactions of sale and purchase of goods, is

required to obtain the local sales tax and central sales tax registration certificates.

The company is required to charge sales tax on the invoices at the applicable rates and

pay the tax after the necessary workings as regards the set-off and the other prescribed

forms to the credit of government.

Depending on the quantum of the tax liability, the company is required to file the sales

tax returns monthly or annually.

􀀩 Profession Tax

Every company doing business in India is required to obtain the Profession Tax

certificate and pay Rs. 2,500/- annually towards profession tax for the company.

Every company employing people in India is required to deduct from the salary of the

employees an amount as per the slab prescribed by the profession tax authority and

pay to the credit of the government.

􀀩 Service tax

Every company who is engaged in the business of providing services of the nature

prescribed under the service tax act, is required to obtain the service tax registration

certificate.

The company is required to charge service tax on the invoices at the applicable rates

(Presently 12.36%) and pay the tax after the necessary workings as regards the input

credit to the credit of government.

Service tax is payable only on receipt basis.

Service tax is payable on monthly basis for all the corporate assessees.

A. Shop/establishment license

Every company having business or any kind of establishment in India, is required to

obtain shop and establishment license. The company is required to renew this license

periodically by paying necessary fees to the government.

B. Provident Fund/E.S.I.C.

Every company employing more than 20 people in their organization is required to get

itself registered with the Provident Fund and E.S.I.C. authorities.

The company is required to deduct an amount that is equivalent to certain percentage of

the salary, contribute an equal amount and deposit with the provident fund authority.

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