India Inc is facing tax uncertainty on account of a slew of taxation changes kicking in from the next financial year to plug leakages and discourage treaty abuse but without much clarity. With barely three months to go for the current financial year to end, the government is yet to release a guidance note or final rules of general anti-avoidance rules (GAAR) and place of effective management (PoEM), which tax consultants argue the government could defer implementation by at least a year to prevent avoidable litigation. In fact, the new accounting standard for large companies, IndAS, was implemented from the current financial year, but final rules are still awaited.
“Companies are in the dark and grappling with a bit of tax uncertainty. We have asked them to opt for guidance available as of now. There is no finality on issues like GAAR and PoEM. Guidance note on country-by-country reporting (CBCR) under base erosion and profit shifting (BEPS) are expected, but have not come out yet. Large companies have to prepare accounts based on IndAS, but there are a lot of issues,” said Neeru Ahuja of Deloitte. “If final rules are released even by next month, we will have certainty; else, companies will be forced to go with the best available guidance,” she added.
GAAR – a set of rules designed to give Indian authorities the right to scrutinise and tax transactions structured solely to avoid taxes – will kick in from April 1, 2017.
Rahul Garg, leader (direct tax) at PwC, said that while the regulation for GAAR was already there, a guidance note will bring in more uniformity in people following it. The government could consider deferment of GAAR and PoEM by another year to prevent avoidable litigation.
While the government earlier this year deferred rules for determining PoEM of a company to 2017-18 to give time to companies to prepare accounts according to their place of residency, it is yet to notify guidelines. PoEM rules will assess tax liabilities of firms.
“With three quarters of the 2016-17 already passed, the guidelines of PoEM are yet to be finalised; it is recommended that the CBDT (Central Board of Direct Taxes) should defer the applicability of PoEM for another two years and finalise the guidelines first,” said Rakesh Bhargava, director, Taxmann.
Sudhir Kapadia of EY said GAAR had been in discussion for a very long time. So, there are only specific points on which a section of industry is seeking clarification. “GAAR has gone through many changes with the government having incorporated many suggestions. The government has asked for very specific doubts that the industry wants clarity on. A final view is pending on that.”
He added that since final rules and clarifications are not out nine months down the year, in case of PoEM it is only fair to expect its deferment by a year.
IndAS, which came into effect this year, recognises income on fair market value concept. So, even returns on investment made by a company are not realised; they will have to be part of its income on notional basis. As minimum alternate tax (MAT) is applied on book profit, it would increase MAT as well. IndAS is applicable on all companies with net worth above Rs 500 crore and listed companies or companies that are being listed.
A committee under retired Indian Revenue Service officer M P Lohia has probed the issue. It submitted its fourth and final report on December 2. But, it has not been made public. “The inputs of the committee would be taken up in the Finance Bill, 2017 to amend the provisions. So, for that time, there is uncertainty as to how to compute the income. Sebi (Securities and Exchange Board of India) has asked companies that they may factor this into the fourth quarter,” said Rohinton Sidhwa of Deloitte.
Sources said some companies may have already opted for it in two quarters. In that case, advance taxes should have shown the increase, which has not happened.
Guidance note on CBCR under BEPS is yet to be issued. CBCR under BEPS will require companies with overseas presence and consolidated revenue of $849 million to comply with extensive data reporting and documentation requirement from April 1, which the India tax department will share with tax authorities of other jurisdictions. In India, close to 200 companies will be eligible to comply with increased data reporting legislation, being mandated to furnish details such as revenue, capital, taxes paid and employees on a country-by-country basis.