Assessment of Various Entities(21)

Applied Direct taxation282

Assessment of Various Entities

STUDY NOTE - 21

ASSESSMENT OF VARIOUS ENTITIES

This Study Note includes

• Provisions relating to Assessment of Various Entities

21.1 ASSESSMENT OF VARIOUS ENTITIES

Assessment of Individuals

Tax incidence on Individuals

While computing taxable Income of an Individual following points should be consideredNature of Income Tax TreatmentIncome earned by the taxpayer

Share of Profit from Hindu undividedfamily

Share of Profit from a firm assessed as firm

Salary and Interest from the aforesaid firm

Share of profit from an association ofpersons/body of Individuals

Income earned by others and included inthe income of the taxpayer by virtue ofsection 60 to 64

Except the following all other incomesshall be included

v) income exempt undersections 10 to 13A

vi) incomes to be includedin income of others byvirtue of section 60 to 64.

It is exempt under section 10(2)

It is exempt under section 10(2A)

These are taxable as business Income

If the association/body is taxable at themaximum marginal rate(or at higherrate),then share of profit is not taxable inhands of recipient.Such income shall be included in theincome of the taxpayer.

Special Provisions for persons governed by Portuguese Civil law (Section 5 A)

This Section is applicable for the appropriation of income between spouses governed by thePortuguese Civil Code which is in force in the state of Goa and Union territories of Dadra and

283Applied Direct taxation

Nagar Haveli and Daman and Diu. By virtue of this section, income from all other sources,except from salary, should be apportioned equally between husband and wife. The income soapportioned will be included separately in the total income of the husband and of the wife andthe remaining provisions of act shall apply accordingly. Salary Income is, however, taxable inthe hands of the spouse who has actually earned it.

Even the income from profession will be apportioned equally between the husband and thewife-

CIT v Datta V Gaitonde [2002] 241 ITR 241/108/ taxman 533(Bom).

Taxable income- How computed

Taxable income shall be computed as follows:

Step 1- Income under the different heads of income -First find out income under the fiveheads of income

Step 2- Adjustment of losses of the current year and earlier years- Losses should be setoffaccording to the provisions of sections 70 to 78. The income after adjustment oflosses is the gross total income.

Step 3- Deduction from gross total income- Deductions specified under Chapter VI Ashould be considered while calculating the gross total income.

Step 4- Rounding off- The balance should be rounded off to the nearest Rs.10. it is calledas net income or taxable income or total income.

Tax liability

The net income derived shall be taxable at the rates prescribed below:

Income Rate (%) Up to 110000* NIL 110001 to 150000 10 150001 to 250000 20 Above 250000 30

* Threshold limit for resident women assessees below 65 years of age and resident individualsof 65 years and above to be increased to Rs.1,45,000/- and Rs.1,95,000/- respectively. Surcharge @ 10% applicable if total income exceeds Rs. 10,00,000/-. Education Cess @ 2% and Secondary and Higher education cess @ 1% leviable on tax plussurcharge.If the individual has Agricultural income then tax should be computed as per the relevantprovisions.



Special Provisions relating to non-residents [Section 115C to 115I]

The benefit of Special provisions can be claimed by non-resident Indians. The following arenon-resident Indians for the purpose:

a. citizen of India who is a non-resident ;

b. a person of Indian origin who is a non-resident.

A person shall be deemed to be of Indian origin if he or either of his parents or any of hisgrandparents, was born in an undivided India.

The Provisions of Section 115C to 115I are applicable only in respect of the following incomesderived a non resident Indian:

a. investment income derived from a “foreign exchange assets”; and

b. long term capital gains on sale or transfer of “foreign exchange assets”.

Foreign Exchange Asset- It means those “specified asset” which the assessee has acquired orpurchased with, or subscribed to in, convertible foreign exchange;

The following are the “specified assets”:

a. shares in an Indian Company (public or private)

b. debentures issued by an Indian Company which is not a private company ;

c. deposits with an Indian Company which is not a private Company, it may be evendeposit with SBI or any other banking company;

d. any security of the Central Government ; and

e. such other asset as the Central Government may specify in this behalf by notifica-tion in the Official Gazette.

Investment Income

In computing the Investment income of a non-resident Indian, no deduction in respect of anyexpenditure or allowance shall be allowed under any provision of the Act. Moreover, no de-duction under Sections 80C to 80U shall be allowed in respect of investment income of non –resident Indians.

Long term Capital gain

Long term Capital gain on sale or transfer of foreign exchange assets shall be calculated subjectto:

1. The benefit of Indexation is not available for the sale or transfer of foreign exchangeassets.

2. The non-resident Indian can claim exemption under section 115F by investing sale con-sideration in another asset.

3. No deduction is permissible under section 80C to 80U in respect of long term capitalgain.


Tax treatment on Investment and long term capital Gain:

Non resident Indians are chargeable to tax on investment and long term capital gain at the rateof 20 percent and 10 percent respectively.(plus surcharge and education cess)

Return of Income not to be filled in certain cases:

Where a non-resident Indian has income only from a foreign exchange asset or income by wayof long term capital gains arising on transfer of a foreign exchange asset, or both, and taxdeductible at source from such income has been deducted, he is not required to file the returnof income under section 139(1).

The income from foreign exchange assets and long term capital gains arising on transfer ofsuch assets would be treated as separate block and charged to tax at a flat rate as explainedabove.

If the non-resident Indian has other Income in India, such other income is treated as an alto-gether separate block and charged to tax in accordance with other provisions of the Act.

Benefit available even after the assessee becomes resident – These provisions are as follows:

1. A non-resident Indian in any previous year, becomes assessable as resident in India inany subsequent year.

2. He may furnish to the Assessing Officer a declaration in writing(along with his returnof income under section 139 for the assessment year for which he is so assessable)to theeffect that the special provisions shall continue to apply to him in relation to the invest-ment income derived from any foreign exchange asset.

3. The foreign exchange assets for this purpose are debentures and deposit with an Indianpublic limited company and Central Government securities.

The special provisions shall continue to apply for that assessment year and for every subse-quent assessment year till the transfer or conversion (otherwise than by transfer) into money ofsuch assets.

Special Provisions not to apply if the assessee so chooses (section 115-I)

A non Resident Indian may opt that the special provisions should not apply to him by makinga declaration to that effect in his return of income for the relevant assessment year. In such casethe whole of his Income (including income from foreign exchange assets and long term capitalgains arising on transfer of a foreign exchange asset) is chargeable to tax under the generalprovisions of the Act.

ASSESSMENT OF HINDU UNDIVIDED FAMILY

U/s. 4 of the Income Tax Act, 1961, Income-tax is payable by ‘every person’. ‘Person’ includesa ‘Hindu Undivided Family’ as defined in sec. 2(31). The definition of ‘Hindu Undivided Fam-ily’ is not found in the Income-tax Act. Therefore the expression ‘Hindu Undivided Family’must be construed in the sense in which it is understood under the ‘Hindu Law’ [Surjit LalChhabda vs. CIT 101 ITR 776(SC)].



According to Hindu Law, ‘Hindu Undivided Family’ is a family which consists of all personslineally descended from a common ancestor and includes their wives and unmarried daugh-ters. A ‘Hindu Undivided Family’ is neither the creation of law nor of a contract but arisesfrom status.

A Hindu coparcenary includes those persons who acquire by birth an interest in joint familyproperty. Only a male member of a family can be a coparcener while the membership of a HUFconsists of both males and females. All the coparceners of the family constitute what is called a‘Coparcenery’. All the coparceners are members of a HUF but all members of a HUF are notcoparceners. A coparcener of a joint family, who acquires by birth an interest in the joint prop-erty of the family, whether inherited or otherwise acquired by the family, may have a right toenforce partition whereas the members of the family who are not coparcenars have no right toenforce partition. When a partition takes place, member (mother or widow) of the joint familymay get a share equal to the sons and also it is necessary to provide for maintenance andmarriage of the unmarried daughter out of family property.

There are two schools of Hindu Law- 1) Mitakshara and 2) Dayabhaga. Under the Mitaksharaschool, each son acquires by birth an equal interest with his father in the ancestral property.Under the Dayabhaga School which prevails in West Bengal and Assam, a son does not acquireby birth in ancestral property. He acquires interest only on the death of his father. Fatherenjoys an absolute right to dispose of the property of the family according to his desire. Afterthe death of father, his son does not, by operation of law, become members of the joint family.The sons remain as co-owners with definite shares in the properties left by father unless theydecide to live as a joint family.

Case Laws:

i) A single person, male or female, cannot constitute a Hindu Undivided Family. An indi-vidual, who has obtained a share on partition of a joint family, has potentialities of creating ajoint family; but until he marries, he alone cannot be considered as a joint family. C. KrishnaPrasad vs. CIT97 ITR 493.

ii) A joint family may consist of a single male member with his wife and daughter(s) and it isnot necessary that there should be two male members to constitute a joint family [GowliBuddanna vs. CIT 60 ITR 193.

Jain & Sikh families are not governed by Hindu Law. However, for the purpose of Income taxAct, such families are treated as ‘Hindu Undivided Families’.

The income of a joint Hindu family may be assessed in the status of HUF if the followingconditions are satisfied:-

i) there should be a coparcenership

ii) there should be a joint family property which consists of ancestral property, prop-erty acquired with the aid of ancestral property and property transferred by itsmembers. It may be pointed out that once a joint family income is assessed as thatof Hindu Undivided Family, it will continue to be assessed as such in future yearstill partition is claimed by its coparceners.


Under the Hindu Law, ancestral property is the property which a person inherits from any ofthis three immediate male ancestors, i.e. his father, grand father and great grand father. In-come of ancestral property is taxable as income of HUF in the following cases:

i) family of husband and wife without any children;

ii) family of two widows of deceased brothers;

iii) family of two or more brothers;

iv) family of uncle and nephew;

v) family of mother, son and son’s wife;

vi) family of a person and his late brother’s wife;

vii) family of widow mother and her sons.

While computing income of a Hindu Undivided Family one should give due consideration ofthe following :

i) where a member of HUF converts his self acquired property into joint family, in-come from such property shall not be treated as income of HUF u/s. 64(2). It shallcontinued to be taxed in the hands of the transferor who is the member of the HUF.

ii) Income from an impartible estate is taxable in the hands of the holder of the estateand not in the hands of HUF.

iii) income from Stridhan of a woman is not taxable in the hands of HUF.

iv) personal income of members cannot be treated as income of HUF.

v) where the funds of HUF are invested in a company or a firm, fees or remunerationreceived by the member as a director or a partner in the company or a firm may betreated as income of HUF in case the fees and remuneration is earned essentially asa result of investment funds

vi) where remuneration is paid by HUF to Karta or any other member for servicesrendered by him in conducting family’s business, the remuneration is deductibleprovided the remuneration is paid :

i) under a valid bonafide agreement;

ii) in the interest of, and expedient for the business family, and

iii) genuine and not unreasonable.

Case law:

i) remuneration and commission received by the Karta of HUF on account of his personalqualifications and exertions and not on account of investments of the family funds in the com-pany cannot be treated as income of HUF. Subbiah Pillai (K.S.) vs. CIT103 Taxman 400/237 ITR11



PARTITION OF HUF

‘Partition’ may be a (i) total or complete partition (ii) partial partition.

Where all the properties of the family are divided amongst all the members of the family, andthe family ceases to exist as an undivided family, it is known as total or complete partition.

On the other hand, where one or more coparceners of the HUF may separate from others andthe remaining coparceners may continue to be joint or some of the properties are divided andthe balance remain joint it is known as partial partition.

W.e.f. 31st December, 1978 partial partition are not recognised for tax purposes and as such thejoint family shall continue to be liable to be assessed as if no such partial partition had takenplace. Each member of such family, immediately before such partial partition and the familyshall be jointly and severally liable for any sum payable under the Act. [Sec. 171(9)]

ASSESSMENT OF FIRMS

From the Assessment Year 1993-94 partnership firm has been classified for the purpose ofcomputation of income and its assessment as under:

(a) partnership firm assessed as such (PFAS)

(b) partnership firm assessed as an association of person.Provisions relating to assessment of firms and partners are analyzed as under:–


Particulars Sections

Definition- ‘Firm’, ‘Partner’ & ‘Partnership’ 2(23)

Income includes interest and salary to partners refer to Sec. 28(v) 2(24)

Share of profit from PFAS- not forming a part of total income 10(2A)

Salary to a partner of a firm not taxable under the head ‘Salaries’ Expl. to Sec. 15

Charging of interest and salary to partner under the head‘Profits and gains of Business or Profession’ excluding the amountdisallowed u/s. 40(b) 28

Conditions and monetary limits for disallowance of interest and 40(b)salary to partnersCapital gains on transfer of capital asset by a partner to a firm 45(3)

Capital gains on distribution of capital assets to partners on dissolutionor otherwise of a firm 45(4)

Restriction to firm on carry forward loss attributable to the retired or

deceased partner 78(1)

Amendments of order in case of a partner if any remuneration assessed

in his case has been disallowed in the assessment of the firm 155(1A)

Charge of tax on income (other than long term capital gain) in case

of a firm of of a firm 167A

Charge of tax on long term capital gain in case of a firm 112

Conditions to assess the firm as such or as an association of person 184, 185

Change of constitution of firm 187

Assessment in case of a succession of firm 188

Joint and several liability of a partners 188A

Status of the firm and liability of the partners on dissolution ordiscontinuance of the business of the firm 189



Assessment of firms and conditions to be fulfilled to avail the status of PFAS [Sec. 184]

Where a firm wants to avail the status of PFAS, it has to satisfy the following conditions:-

i) The firm shall be evidenced by an instrument and the individual shares of thepartner shall be specified therein. [Sec. 184(1)]

ii) A certified copy of the instrument of partnership shall accompany the returnof income of the previous year relevant to the assessment year 1993-94 or subsequent year in respect of which assessment of the firm is first sought. [Sec.184(2)]

iii) Wherever during a previous year a change takes place in the constitution ofthe firm or in the sharing ratio of partners, a certified copy of the revised instrument of partnership be submitted along with the return of income of the concerned year of assessment. [Sec. 184(4)]

iv) There should not be any failure on the part of the firm as is specified in Sec.144 [Sec. 184(5)]

It may be mentioned that once a firm is assessed as PFAS after fulfillment of the above condi-tions, it will be assessed as PFAS, for every subsequent year provided there is no change ineither firm’s constitution or partner’s profit sharing ratio. However, there should not be anyfailure mentioned in sec. 144. [Sec. 184(3)]

A partnership deed shall be certified in writing by all the major partners. Where, however, thefirm is dissolved and the return is filed after its dissolution, then the copy of deed may becertified by all the major partners in the firm immediately before is dissolution. Where apartner is dead, then it will have to be certified by his legal representative. [Sec. 184(2) Expl.]

Computation of Income

The following provisions should be given due consideration while computing income of afirm-

Dis

Me

Rat

Tax


i) Provision relating to deductibility of remuneration paid to partners by firm.

ii) Provision relating to deductibility of interest paid to partners by firm.

ASSESSMENT OF ASSOCIATION OF PERSONS / BODY OF INDIVIDUALS

Association of Persons:

Where two or more persons voluntarily joint together in a common purpose or action withthe object of producing income, Profits and gains they are said to have formed an Associationof Persons.

Body of Individuals:

It is a conglomerate of individuals who happen to have come together to carry on sum activ-ity with a view to earn income i.e. co-heirs inheriting shares or securities.

Distinction between AOP & BOI:

i) AOP may consist of non-individuals but BOI has to consist of individualsonly

ii) An AOP is a voluntary combination of persons in a joint enterprise or common action to produce income whereas in case of BOI will only consist oftwo or more persons, may or may not have any common object.

iii) A BOI may become an AOP, but not vice versa.

Share of members of AOP/BOI shall be deemed to be indeterminate or unknown, if suchshares (in relation to the whole or any part of the income) are indeterminate or unknown onthe date of formation of such AOP/BOI or any time thereafter.

Any payment of interest, salary, bonus, commission or remuneration by the AOP/BOI to amember is not allowable as deduction. Where interest is paid by AOP/BOI to a member whohas also paid interest to the AOP/BOI, the amount of interest to be disallowed will be limitedto the net amount of interest paid by the AOP/BOI. [Sec. 40(ba)]

Tax Rates :



Maximum marginal rate means the rate of tax (including surcharge, if any) applicable to thehighest slab of income in case of individuals. [Sec.2(29C)]

Ascertainment of member’s share in AOP/BOI where shares are determinate and its taxabil-ity [Sec. 67A, 86 & 110]

i) Ascertainment of share in AOP/BOI [Sec. 67A] Rs.

Total income of the AOP/BOI ***

Less: Interest, salary, commission or other remuneration paid to any member ***

Balance apportionable to the members in proportion to their shares ***

Share of income allotted to a member ***

Add: Salary, interest, commission or other remuneration received by themember of the AOP or BOI ***

Total share ***

Less: Interest paid on capital borrowed for the purpose of investmentin the AOP/BOI ***

1. None of the members At the rates applicable At the maximum having taxable income to individual marginal rate.

2. Any member having At the maximum marginal rate At the maximumtaxable income. marginal rate.

Where shares of members Where shares of members are determinate and known are indeterminate or unknown


Net assessable share income ***

ii) Tax treatment of share income of members [Sec. 86 and Sec. 110]

In computing total income of an assessee, there shall be included share incomeof a member of an AOP or BOI subject to sec. 86 and 110 of the I.T. Act.

“Average rate of Income-tax” is defined u/s. 2(10) to mean the rate arrived at by dividing theamount of Income-tax calculated on the total income, by such total income.

ASSESSMENT OF COMPANIES

In computing tax incidence companies are classified as follows :

i) Domestic Company

ii) Foreign Company

‘Company’ means —

i) any Indian company; or

ii) body corporate incorporated outside India under the laws of a foreign country;or

iii) any institution, association or a body which is assessed or was assessable/as-sessed as a company for any assessment year commencing on or before 1.4.1970;or

Taxation of AOP/BOI [Sec 167B ] Tax treatment of share income in thehands of members of AOP/BOI [Sec. 86& 110]

1 AOP or BOI is taxed at maximum marginal Share income of the member is notrate orat a higher rate. taxable.

2 AOP or BOI is taxed at normal rates Share income computed u/s. 67A isapplicable included into an Individual. the total in-

come of the member but rebate u/s.110 at the average of tax in respect of suchshare income has to be allowed.

3 AOP or BOI is not taxed at all. Share income will be included in thetotal income of the member and taxed atthe rates applicable to him.



iv) any institution, association or body whether incorporated or not and whetherIndian or non-Indian which is declared by general or special order of the CentralBoard of Direct Taxes to be a company. [Sec. 2(17)]

‘Domestic Company’ means —

i) an Indian company; or

ii) any other company which, in respect of its income liable to tax under the Act,has made the following prescribed arrangements for the declaration and payment of dividends within India in accordance with Sec. 194 read with Rule 27of the Rules:

a) The share register of the company for all shareholders should be regularly main-tained at its principal place of business in India, in respect of any assessment year,from 1st April of the relevant assessment year.

b) The general meeting for passing of accounts of the relevant previous year and fordeclaring dividends in respect thereof should be held only at a place within India.

c) The dividends declared, if any, should be payable only within India to all share-holders. [Sec. 2(22A)]

‘Foreign Company’ means company which is not a domestic company. [Sec. 2(23A)]

‘Indian Company’ means a company formed and registered under the Companies Act, 1956.Besides, it includes the following:-

a) a company formed and registered under any law relating to companies formerly inforce in any part of India;

b) a corporation established by or under a Central, State or Provincial Act;

c) any institution, association or body which is declared by the Board to be a com-pany u/s. 2(17).

d) a company formed and registered under any law in force in the State of Jammu andKashmir;

e) a company formed and registered under any law for the time being in force in theUnion territories of Dadra and Nagar Haveli, Daman and Diu, Pondicherry andState of Goa.

In the aforesaid cases, a company, corporation, institution, association or body will be treatedas an Indian company only if its registered or principal office is in India. [Sec. 2(26)]

“Company’ in which the public are substantially interested” –

a company is said to be a company in which the public are substantially interested, if-

a) a company owned by Government or Reserve Bank of India or in which not lessthan 40% shares are held singly or taken together by the Government or the Re-serve Bank or a corporation owned by the Reserve Bank; or


b) it is a company registered u/s. 25 of the Companies Act, 1956, i.e., companiesincorporated for promotion of Commerce, Arts, Science, Religion, Charity andprohibiting the payment of any dividends to its members; or

c) it is a company having no share capital and it is declared by the CBDT to be acompany in which the public are substantially interested; or

d) it is a company which carries on, as its principal business, the business of accep-tance of deposits from its members and which is declared by the Central Govern-ment u/s. 620A of the Companies Act to be a Nidhi or Mutual Benefit Society; or

e) it is a company which is not a private company and its equity shares are, as on thelast day of previous year, listed in a recognised stock exchange in India; or

f) it is a company which is not a private company and its shares carrying not lessthan 50% of the voting power (40% in the case of Indian companies whose busi-ness consists mainly in the construction of ships or in the manufacture or process-ing of goods or in mining or in the generation or distribution of electricity or anyother form of power)have been allotted unconditionally to or acquired uncondi-tionally to, or acquired unconditionally by, and were through out the relevantprevious year beneficially held by-

i) the Government; or

ii) a statutory corporation; or

iii) a company in which the public are substantially interested or any whollyowned subsidiary of such company.

g) it is a company, wherein equity shares carrying not less than 50% of the votingpower have been unconditionally allotted to or acquired by and were throughout the relevant previous year beneficially held by, one or more cooperativesocieties. [Sec. 2(18)]

Minimum alternative tax on certain companies

A company is liable to pay tax on the total income computed in accordance with the provisionsof the Income Tax Act, but the profit and loss account is prepared as per provisions of theCompanies Act. There were large number of companies who had book profits as per profitand loss account but the total income as per provision of the Income-tax Act was either nil ornegative or insignificant and as a result such companies were not paying any income-tax throughsometimes, such companies were paying dividends to shareholder. These companies are popu-larly known as “Zero tax companies”.

In order to being these companies under the Income-tax Act, the following sections were in-cluded time to time from assessment year 1997-98.

“Average rate of Income-tax” is defined u/s. 2(10) to mean the rate arrived at by dividing theamount of Income-tax calculated on the total income, by such total income.



ASSESSMENT OF COMPANIES

In computing tax incidence companies are classified as follows :

i) Domestic Company

ii) Foreign Company

‘Company’ means —

i) any Indian company; or

ii) body corporate incorporated outside India under the laws of a foreign country; or

iii) any institution, association or a body which is assessed or was assessable/assessedas a company for any assessment year commencing on or before 1.4.1970; or

iv) any institution, association or body whether incorporated or not and whether In-dian or non-Indian which is declared by general or special order of the CentralBoard of Direct Taxes to be a company. [Sec. 2(17)]

‘Domestic Company’ means —

i) an Indian company; or

ii) any other company which, in respect of its income liable to tax under the Act, hasmade the following prescribed arrangements for the declaration and payment ofdividends within India in accordance with Sec. 194 read with Rule 27 of the Rules:

a) The share register of the company for all shareholders should be regularly main-tained at its principal place of business in India, in respect of any assessment year,from 1st April of the relevant assessment year.

b) The general meeting for passing of accounts of the relevant previous year and fordeclaring dividends in respect thereof should be held only at a place within India.

c) The dividends declared, if any, should be payable only within India to all share-holders. [Sec. 2(22A)]

‘Foreign Company’ means company which is not a domestic company. [Sec. 2(23A)]

‘Indian Company’ means a company formed and registered under the Companies Act, 1956.Besides, it includes the following:-

a) a company formed and registered under any law relating to companies for merlyin force in any part of India;

b) a corporation established by or under a Central, State or Provincial Act;

c) any institution, association or body which is declared by the Board to be acompany u/s. 2(17).

d) a company formed and registered under any law in force in the State of Jammuand Kashmir;


e) a company formed and registered under any law for the time being in force in theUnion territories of Dadra and Nagar Haveli, Daman and Diu, Pondicherry andState of Goa.

In the aforesaid cases, a company, corporation, institution, association or body will be treatedas an Indian company only if its registered or principal office is in India. [Sec. 2(26)]

“Company’ in which the public are substantially interested” –

a company is said to be a company in which the public are substantially interested, if-

a) a company owned by Government or Reserve Bank of India or in which not lessthan 40% shares are held singly or taken together by the Government or the Re-serve Bank or a corporation owned by the Reserve Bank; or

b) it is a company registered u/s. 25 of the Companies Act, 1956, i.e., companies in-corporated for promotion of Commerce, Arts, Science, Religion, Charity and pro-hibiting the payment of any dividends to its members; or

c) it is a company having no share capital and it is declared by the CBDT to be acompany in which the public are substantially interested; or

d) it is a company which carries on, as its principal business, the business of accep-tance of deposits from its members and which is declared by the Central Govern-ment u/s. 620A of the Companies Act to be a Nidhi or Mutual Benefit Society; or

e) it is a company which is not a private company and its equity shares are, as on thelast day of previous year, listed in a recognised stock exchange in India; or

f) it is a company which is not a private company and its shares carrying not lessthan 50% of the voting power (40% in the case of Indian companies whose busi-ness consists mainly in the construction of ships or in the manufacture or process-ing of goods or in mining or in the generation or distribution of electricity or anyother form of power)have been allotted unconditionally to or acquired uncondi-tionally to, or acquired unconditionally by, and were through out the relevantprevious year beneficially held by-

i) the Government; orii) a statutory corporation; or

iii) a company in which the public are substantially interested or any whollyowned subsidiary of such company.

g) it is a company, wherein equity shares carrying not less than 50% of the votingpower have been unconditionally allotted to or acquired by and were through outthe relevant previous year beneficially held by, one or more cooperative societies.[Sec. 2(18)]



Minimum alternative tax on certain companies

A company is liable to pay tax on the total income computed in accordance with the provisionsof the Income Tax Act, but the profit and loss account is prepared as per provisions of theCompanies Act. There were large number of companies who had book profits as per profitand loss account but the total income as per provision of the Income-tax Act was either nil ornegative or insignificant and as a result such companies were not paying any income-tax throughsometimes, such companies were paying dividends to shareholder. These companies are popu-larly known as “Zero tax companies”.

In order to being these companies under the Income-tax Act, the following sections were in-cluded time to time from assessment year 1997-98.

Sections Particulars

Explanation to 115JA Definition of Book Profit.115JAA Tax credit in respect of tax paid on deemed income shall be computed

under section 115JA as under :

Rs.

Step–1 Tax payable by the company u/s. 115JA ***

Step–2 Tax payable by the company without applying the provisionsof section 115JA ***

Step- 3 Difference (Step-1 – Step- 2) being Tax credit which shall beallowed to carry forward to subsequent years and set off againstthe tax payable without applying the provisions of S. 115JA. ***

115JA[Applicable forassessment year1997-98 to 2000-01]

If the taxable income of a company computed under the I.T. Act, inrespectof previous year 1996-97 and onwards are less than 30% of its bookprofits, the total income of such company chargeable to tax for the rel-evant previous year shall be deemed to be an amount equal to 30% ofsuch book profit


Note:

1. Tax credit in any year shall not exceed the difference between [the tax pay ablewithout applying the provision of MAT (Sec. 115JA/JB) (-) tax payableafter applying the provision of section 115JA/JB]

2. Carry forward of Tax credit shall not be allowed beyond the fifth assessment yearimmediately succeeding the assessment year in which tax credit becomes allow-able.

115JB [From assessment year 2001-02] where the Income-tax payable on the totalincome of a company as computed under the Act in respect of any previousyear, is less than 10% of its book profits, then the total income of the companyshall be deemed to be equal to the book profits and tax payable shall be equalto 10% of book profit.

Note:

1. Companies are liable to pay “Minimum Alternative Tax” @ 10% of Book Profits u/s. 115JB and it is clarified by CBDT that all the companies are liable for paymentadvance tax having regard to the provisions contained in sec. 115JB. Consequently,provision of sec. 234B & C for interest on defaults in payment of advance tax anddeferment of advance tax installments would also be applicable to 115JB cases.[252 ITR 50(SC)]

2. Provision of section 115JB are applicable to foreign companies also and the foreigncompanies shall calculate its Indian profits separately for the purpose of “MAT”as held by the Authorities of Advance Rulings. [P.No. 14 of 1997 in re (1998) 234ITR 335(AAR)].

CHANGES RELATING TO MAT IN CASE OF COMPANY

The Companies which declares dividend but do not pay tax, they are called ‘ZERO TAX COM-PANY’. To bring them in the net of taxation a provision was introduced during the assessmentyear 1996-97 which was named then

3. Exemption from income distribution tax extended to close-ended equity oriented mutualfunds section 115R

Currently, income distribution tax is not payable in respect of income distributions by open-ended equity mutual funds. With effect from 01.06.2006, this exemption shall be applicable toall equity oriented mutual funds (i.e. close-ended funds will also be exempt).

Further, the definition of equity-oriented fund given in section 115T has been amended to mansuch fund where the investible funds are invested in equity shares of domestic companies tothe extent of more than 65% of its total proceeds as against the earlier 50%.



AMALGAMATION [Sec. 2(1B)]

Amalgamation in relation to companies means the merger of one or more companies withanother company, or merger of two or more companies to form a new company. The companyso merged goes out of existence is “amalgamating company.” The company into which theamalgamating company merges, or the new company that is formed to effect amalgamation, is“amalgamated company” in such a manner that :–

a) All property of amalgamating company, immediately before amalgamation, shouldbecome the property of amalgamated company,

b) All liabilities of amalgamating company, immediately before amalgamation, shouldbecome the liabilities of amalgamated company,

c) Shareholders holding 75% in value of the shares in amalgamating company shouldbecome shareholders of the amalgamated company. However, if the amalgamatedcompany or its subsidiary/nominee already holds some shares in the amalgamat-ing company, value of such shares is excluded for calculating 75% of the value ofshares of the amalgamating company.

A merger of companies will not be treated as amalgamation in case of sale or liquidation ofcompany.

The effective date in a scheme of amalgamation is the date of transfer specified in the schemeand not the date of high court’s order approving the scheme. So long as the court does notmodify the date specified in the scheme, amalgamation takes effect on date of transfer speci-fied in the scheme. The income of the amalgamating company from such date of transfer shallbe assessed as income of the amalgamated company and shall be assessed accordingly. [MarshallSons and Co. (India) Ltd. v. ITO (SC), 223 ITR 809]

Certain concessions are provided under various provisions of the Income-tax Act in respect ofamalgamation which are as under:

a) To amalgamating company

i) Sec. 47 (vi): In a scheme of amalgamation capital gains tax is not attracted in case oftransfer of capital asset by the amalgamating company to the amalgamated com-pany.

ii) Sec. 47(via): Tax concession to foreign amalgamating company.


b) To shareholders of an amalgamating company

Sec.47(vii) : Transfer by a shareholder in a scheme of amalgamation of a capitalasset being a share or shares held by him in amalgamating company.

c) To amalgamated company

The following benefits in the hands of amalgamating company are available to the amal-gamated company:

Sec. 35(5) : Expenditure on scientific research

Sec. 35A(6) : Expenditure on acquisition of patent right or copy right

Sec. 35AB(3) : Expenditure on know how

Sec. 35ABB(6) : Expenditure for obtaining license to operate telecommunica tion services

Sec. 35D(5) : Amortisation of preliminary expenses

Sec. 36E(7) : Deduction for expenditure on prospecting etc. for certainminerals

Sec. 36(ix) : Expenditure incurred for the purpose of promoting family planning.

Sec. 72A : Carry forward and set off of accumulated and unabsorbed depreciation

Further, the amalgamated company is entitled for:

Sec. 35DD : Amortisation of expenditure in case of amalgamation or

demerger

DEMERGER SEC. 2(19AA)

“Demerger” in relation to companies, means the transfer, pursuant to a scheme of arrangementunder sections 391 to 394 of the Companies Act, 1956, by a demerged company of its one ormore undertakings to any resulting company in such a manner that —

i) all the property of the undertaking, being transferred by the demerged company, im-mediately before the demerger, becomes the property of the resulting company by vir-tue of the demerger;

ii) all the liabilities relatable to the undertaking being transferred by the demerged com-pany, immediately before the demerger, become the liabilities of the resulting com-pany by virtue of the demerger;

iii) the property and the liabilities of the undertaking or undertakings being transferred by



the demerged company are transferred at values appearing in its books of account im-mediately before the demerger;

iv) the resulting company issues, in consideration of the demerger, its shares to the share-holders of the demerged company on a proportionate basis;

v) the shareholders holding not less than three-fourths in value of the shares in thedemerged company (other than shares already held therein immediately before thedemerger, or by a nominee for, the resulting company or, its subsidiary) become share-holders of the resulting company or companies by virtue of the demerger. Otherwisethan as a result of the acquisition of the property or assets of the demerged company orany undertaking thereof by the resulting company;

vi) the transfer of the undertaking is on a going concern basis;

vii) the demerger is in accordance with the conditions, if any, notified under sub-section (5)of section 72A by the Central Government in this behalf.

For the purpose of this definition, “undertaking” shall include any part of an undertaking, or aunit of division of an undertaking or a business activity taken as a whole, but does not includeindividual assets and or liabilities or a combination of these not constituting a business activ-ity. For determining the value of the property which is subject matter of demerger, any changein the value of assets on account of revaluation shall be ignored.

Splitting up or the reconstruction of any authority or a body constituted or established underany Act, or a local authority or a public sector company, into separate authorities or bodies orlocal authorities or companies shall be deemed to be the demerger if such split up or recon-struction fulfils the conditions as may be notified by the Central Government.

DEMERGED COMPANY SEC. 2(19AAA)

It means the company whose undertaking is transferred, pursuant to a demerger, to a resultingcompany.

DEFINITIONS

• Undertaking : includes any part of an undertaking or a unit or division of an undertakingor a business activity taken as a whole, but excludes individual assets or liabilities orcombination of both not constituting a business activity.

Resulting Company : means one or more companies (including wholly owned subsid-iary thereof) to which the undertaking of the demerged company is transferred in ademerger and the resulting company in consideration of such transfer of undertaking,issues shares to shareholders of the demerged company and includes any authority orbody or local authority or public sector company or a company established, constitutedor formed as a result of demerger


• Provisions applicable to Company — Amalgamation/Demerger

Capital Gain - Gains arising on transfer of a capital asset in a scheme of amalgamation/demerger to the amalgamated/resulting company being an Indian Company is exempt.

Carry forward of accumulated loss and/or unabsorbed depreciation

• Accumulated loss and unabsorbed depreciation of an amalgamating company owningan industrial undertaking or a ship or a hotel or a banking company can be transferred tothe amalgamated company provided:

1. it continuously holds 3/4th value of the assets acquired in a scheme of amalgamation for at least five years from the date of amalgamation.

2. it continues to carry on business of amalgamating company for at least five yearsfrom the date of amalgamation and the amalgamating company

• Accumulated loss and unabsorbed depreciation of a demerged company will be trans-ferred to resulting company:

1. Where it is directly relatable to undertaking transferred, it should be such relatable amount.

2. Where it is not directly relatable to the undertaking transferred, it should be apportioned in the ratio of assets retained by the demerged company and transferred to resulting company.

Carry forward of accumulated loss and/or unabsorbed depreciation of the banking companyin a Scheme of amalgamation with banking institution

Allowability of expenditure relating to amalgamation/demerger

• An Indian company will be allowed a deduction of 1/5th of the expenditure incurred for thepurposes of amalgamation or demerger after 1st April, 1999 for five years from the years ofamalgamation/demerger. (S. 35DD)

Depreciation in the year of amalgamation/demerger

• Depreciation to amalgamated company and amalgamating company in the year of amal-gamation and depreciation to demerged company and the resulting company in the year ofdemerger shall be apportioned in the ratio of the number of days for which the assets wereused (S. 32) (5th proviso).

Actual cost

• Actual cost of the capital asset transferred to amalgamated/resulting company shall be theactual cost in the hands of the amalgamating/demerged company provided it does not exceedWDV of such assets in the hands of the demerged company.



Written Down Value

• WDV in the hands of amalgamated company shall be the WDV of the block of assets in thehands of the amalgamating company less depreciation allowed in the year of amalgamation.

• WDV in the hands of the resulting company shall be the WDV of transferred assets as perbooks of the demerged company immediately before demerger.

• WDV in the hands of the demerged company shall be the WDV of the block of assets beforedemerger less book value of assets transferred to the resulting company.

• Deduction claimed under Section 33AC (Reserve for shipping business) would not be with-drawn on sale or transfer of a ship in any scheme of demerger.

• Transfer of patent rights or copyrights (S. 35A) or transfer of licence to operate telecommuni-cation services (S. 35ABB) or transfer of business for prospecting etc. mineral oil (S. 42) in ascheme of amalgamation/demerger will not be treated as either sale or transfer.

• The deductions hitherto granted to amalgamating/demerged company relating to patentrights and copyrights (S. 35A) / Expenditure on know-how (S.35AB) / Licence fees to operatetelecommunication services (S. 35ABB) / Preliminary expenses (S. 35D) / expenditure for pros-pecting etc., for certain minerals (S. 35E) / business for prospecting etc., for mineral oil (S. 42)would be available for balance period to the amalgamated/resulting company.

Provisions applicable to Shareholders

• Gains arising on transfer of shares of amalgamating company in exchange of shares of amal-gamated company, being an Indian Company is exempt.

• Acquisition of shares of the resulting company by the shareholders in demerger will not betaxed either as capital gain or deemed dividend.

• Cost of acquisition of shares of:

— the amalgamated company will be the cost incurred for acquiring shares of amalgamatingcompany.

— the resulting company will be the :

— Original cost of shares of demerged company X net book value of assets transferred to re-sulting company/net worth of the demerged company before demerger (net worth is equal toPaid-up Share Capital + General Reserve as per books.)

— the demerged company will be the original cost of shares of demerged company – cost ofshares of the resulting company as computed above.


Assessment of Cooperative Societies

Introduction

Cooperative society is a society registered under the Cooperative Societies Act, 1912, or underany other law for the time being in force in any State for registration of cooperative societies.

A cooperative society is entitled, to some deduction u/s. 80P of the Income-tax Act.

Steps in computing tax liability of Cooperative Societies

The steps are-

Step- I :Compute gross total income, ignoring income exempt from tax u/s. 10 to 13A

Step-II : Deduct permissible deductions u/ss. 80G, 80GGA, 80I, 80I-A 80IB, 80JJA, etc. and 80Pas applicable.

Step-III :Apply the tax rates for the relevant assessment year to arrive at the tax incidence.

The tax rates applicable are as follows :–

The rates of Income-tax are —

Income Range Rates of tax

1 Where the total income does not exceed Rs. 10,000 10% of the total income

2 Where the total income exceeds Rs.10,000 but Rs. 1,000 plus 20% of thewhich the does not exceed Rs. 20,000 amount by total income exceeds

Rs.10,000

3 Where the total income exceeds Rs.20,000 Rs. 3,000 plus 30%, of the amountby which the total income ex-ceeds Rs.20,000

However, the tax payable by every cooperative society shall be increased by a surcharge @10%of the income-tax and education cess @2% and secondary and higher education cess @ 1%.

ASSESSMENT OF TRUSTS

Introduction

Trust : A “Trust” is an obligation annexed to the ownership of property,and arising out of a confidence reposed in and accepted by the owner,or declared and accepted by him, for the benefit of another, or ofanother and the owner.

Author of trust : The person who reposes or declares the confidence is called the “author of the trust”.

Trustee : The person who accepts the confidence is called the “trustee”.

Beneficiaries : The person for whose benefits the confidence is accepted is calledthe “beneficiary”.



In order to ascertain the incidence of tax it is essential to know the nature and character oftrusts and also the mode of computation of its income and conditions for exemptions. For thepurpose of levy of income-tax, trusts may be of the following types :-

1. Charitable trust

2. Private discretionary trust

3. Oral trust

Charitable Trusts

A charitable trust is a trust established in accordance with law for charitable purpose. Chari-table purpose includes relief of the poor, education, medical relief and the advancement of anyother object of general public utility. [Sec. 2(15)]

Promotion of sports and games is considered to be a charitable purpose and as such an associa-tion or institution engaged in promotion of sports and games can claim exemption u/s.11,although it is not approved u/s. 10(23).

Conditions for exemption

The following essential conditions are to be fulfilled for claiming exemption u/s. 11 :–

i) The property from which income of the trust is derived should be held for charitable orreligious purposes.

ii) The exemption is confined to such portion of the trust’s income as is applied to chari-table or religious purposes in India except in cases enumerated in sec.11(1)(c)

iii) If the trust property comprises of a business undertaking, the income shown in the booksof account should not be less that the income determined by the A.O. according to pro-visions of the Income-tax Act. From A.Y. 1992-93, trusts or institution can carry outbusiness activities if such business activities are incidental to the attainment of its objec-tives and separate books of accounts are maintained.

iv) The trust should make an application in Form No. 10A to the Commissioner of IncomeTax within one year of creation of trust or the institution and such trust or institution getregistered u/s. 12AA.

V) Limit for audit of charitable institutions

rationalized [Section 12A]

- Trusts and institutions covered under sections 11 and 12 to get their accountsaudited only when their total income, before giving effect to the provisions ofsections 11 and 12,exceeds Rs.1,00,000.

vi) The funds of the trust should be invested or deposited in any one or more of themodes or forms [Sec. 11(5)] such as —


Forfeiture of Exemption [Sec. 13]

The following incomes of charitable or religious trusts and institutions will not qualify forexemption u/s. 13 :–

i) income from property held under a trust for private religious purpose which does notensure for the benefit of the public. [sec. 13(1)(a)]

ii) income of a charitable trust/institution established on or after 1.4.1962 for the benefit ofany particular religious community or caste. [sec. 13(1)(b)]

• investment in Government Savings Certificate;

• deposits in any Post Office Savings Bank Account;

• deposit in any account with any scheduled or cooperative Bank;

• investment in any Central Government or State Government securities orin the units of the Unit Trust of India;

• investment in debentures of any corporate body, guaranteed by the CentralGovernment or a State Government ;

• investments in immovable property or deposit in any public sector com-pany ;

• deposit or investments in any Bond issued by a public company havingmain object of carrying on business of providing long term finance for ur-ban infrastructure in India.

• any other form or mode of investment/deposit as may be prescribed in thisbehalf.

In order to claim exemption, a charitable trust or institution will have to apply at least 85% of,the income to charitable and religious purposes. Where 85% of the income is not applied tocharitable or religious purposes the trust or institution may accumulate or set apart either thewhole or part of its income for future application for such purposes in India.

Special rates of tax on Certain Income of Charitable Institutions.

Taxation of certain anonymous donations under section 115BBC

Income of wholly or partly charitable or religious trust etc. is exempt subject to certain condi-tions:

Unaccounted contribution to those institutions by way of anonymous donation a new section115BBC has been inserted so as to provide that any income by way of anonymous donationshall be included in the total income and taxable @ 30%.

Note :

Anonymous donation means any voluntary contribution referred to sec 2(24)(iia).



iii) income of religious/charitable trust/institutions established after 31.3.1962 for the ben-efit of any person specified in sec. 13(3) viz. author, founder or substantial contributorof the trust or any relative of them. Where the income is used or applied during therelevant year for the direct or indirect benefit of the above mentioned persons. [sec.13(1)(c)(i) and (ii)]

iv) income of a trust/institution, if its funds are invested/deposited otherwise than as speci-fied u/s. 11(5). [sec. 13(1)(d)]

However, the provisions of section 13(1)(d) shall not apply in relation to following :-

• any asset forming part of the corpus of the trust as on 1.6.1973;

• any accretion to the corpus shares by way of bonus shares allotted to the trust;

• debentures issued by or on behalf of any company or corporation and acquired by thetrust before March 1, 1983;

• any asset not covered u/s. 11(5) where such asset is held for not more than 1 year fromthe end of the previous year in which such asset is acquired;

• any fund representing the Profits and gains of business, being Profits and gains of anyprevious year relevant to the assessment year 1984-85 or any subsequent assessmentyear. But such relaxation of the restriction will be denied unless the trust keeps sepa-rate accounts for the business. As already noted, subject to certain exceptions, suchbusiness profits no longer enjoy exemption u/s. 11.

CHANGES RELATING TO INCOME OF CHARITABLE INSTITUTIONS.

Anonymous donations to form part of income of trust [section 13 ]

As per the new section 115BBC, anonymous donation shall now be taxable at the maximummarginal rate of 30%. Consequently, a new sub-section (7) has been inserted in section 13 toprovide that nothing contained in section 11 or section 12 shall operate so as to exclude fromthe total income of the previous year of the person in receipt thereof, any anonymous dona-tion referred to in the new section 115BBC on which tax is payable in accordance with theprovisions of that section. In other words anonymous donation shall not be excluded from thetotal income of the assessee.

Taxation of Trust

A.Public Trust u/s. 164(2) —

i) If income is not exempt u/s. 11 or 12, income of Trust is taxable at the ratesapplicable to an Association of Person.

ii) If the exemption is forfeited due to contravention of sec. 13(1)(c) or 13(1)(d),such income of trust is taxable at minimum marginal rate.


B.Private Trust (shares of beneficiaries are determinate or known) —

i) If income does not include business Profits, the trustee is assessable at the ratesapplicable to each beneficiary. [Sec. 161(1)]

ii) If income includes profits from business, the whole income is taxable at maximum marginal rate. [Sec. 161(1A)]

C.Private Trust (share of beneficiaries in determinate or unknown) [S. 164(i)] —

i) If income does not include business profits, income is taxable at the rates applicable to an AOP if –

• none of the beneficiaries has taxable income or is a beneficiary in any othertrust.

• the trust is non-testamentary trust created before 1.3.1970.

• exclusively for the relative dependents of the settle; or

• it is the only trust declared by a WILL exclusively for the benefit of any dependent relative. In any other case, income is taxable of minimum marginal rate.

ii) If income includes business profits, the whole income is taxable at maximummarginal rate.

D.Oral Trust [Sec. 160(1)(v), Sec. 164A] : “Oral Trust” means a trust which is not declared by aduly executed instrument in writing including any wakf deed which is valid under theMussalman wakf validating Act, 1913 and which is not deemed to be trust by virtue of expla-nation I to Sec. 160.

i) Income of Oral trust is taxable at maximum marginal rate.

ii) If Oral trust is declared to be a trust by furnishing a statement in writing containing purposes, particulars and details of trust, beneficiaries and prop erty tothe assessing officer within 3 months from the date of declaration of the trust,indicating the share of beneficiaries, the income of the trust is assess able in thehands of trustee at the rates applicable to beneficiaries.

Income from property held under Trust Party for religious purposes and partly for otherpurposes [Sec. 164(3)]

Where property is held under trust partly for religious purposes and partly for other purposesand the individual share of the beneficiaries in the income applicable to purposes other thancharitable purposes, is not known, the income-tax liability will be aggregated as follows :

i) the tax which would be chargeable on the part of the relevant income which isapplicable to charitable or religious purposes (as reduced by the income which isexempt u/s. 11 as if such part were the total income of an association of persons;and

ii) the tax on that part of income attributable to purposes other than charitable orreligious and in respect of which shares of beneficiaries are indeterminate orunknown, at the maximum marginal rate.



Where any part of income is not exempt u/s. 11 or 12 by virtue of sec. 13(1)(c) or (d), tax ischarged on the relevant income at the maximum marginal rate.

Taxation of non-resident Indian

i)Who is non-resident individual — Sec. 6 [refer to Study Note 1 of study material]

ii)Who is non-resident Indian — An individual who is a citizen of India or a person of Indianorigin not resident in India, is called non-resident Indian.

iii)Taxation of non-resident assessees

» Provisions as applicable to resident assessees.

» Special provisions as provided in Sec. 115C to 115I.

The non-resident has an option to be assessed or not to be assessed under specialprovision for any assessment year. The option is to be exercised by a declarationin his return of Income for the Assessment Year. [Sec. 115-1]

iv)General Provisions —

Rate of tax Similar to resident assessees.

Special rates of tax on Dividends, interest income from units of Mutual Fund.UTI, bonds or shares purchased in foreign currency and capital gains aris-ing from their transfer.

• 20% of the dividends [which have not been subjected to additional In-come Tax u/s 115-O] [other than dividends mentioned in clause (iv)below];

• 20% of the interest received from Government or an Indian concern onmonies borrowed or debt incurred in foreign currency;

• 20% of the income received in respect of units purchased in foreigncurrency, of a Mutual Fund specified u/s 10(23D) or of the Unit TrustIndia;

• 10% of the interest or dividends [which have not been subjected to ad-ditional income tax u./s 115-O], in respect of bonds or Global Deposi-tory Receipts in an Indian company purchased in foreign currency andissued under the Foreign Currency Convertible Bonds and Ordinaryshares (Through Depository Receipt Mechanism) Scheme, 1993 (com-monly known as Euro Issues/Euro Bonds) or in respect of bonds orGlobal Depository Receipts issued against shares of a public sector com-pany sold by the Government to the non-resident in foreign currency;and

• 10% of the long-term capital gains arising from the transfer of the afore-said bonds or Global Depository receipts.


v)Filing of return — Similar to resident assessees :

However, a non-resident shall not be required to file a return of income u/s. 139(1), if his totalincome consists only of income subject to special rates of tax as mentioned in rate of tax underclauses (iv) supra and the tax has been deducted therefrom at source.Case Laws:i) For purpose of section 164(1) what is relevant is that income is receivable on behalf of benefi-ciaries and is not necessary that income is received by beneficiaries - Gosar Family Trust v. CIT81 Taxman 146/215 ITR 55.ii) Provision merely sets out how tax is to be charged and does not create a charge on the income. CIT v.Kamalini Khatau 209 ITR 101.

Double Taxation Relief [Secs. 90 & 91]

Double taxation of income arises when a resident taxpayer derives income from a source inanother country and such income is charged to tax in both the countries i.e. country of resi-dence of the taxpayer as well as in the country of the source of income. For avoidance of suchdouble taxation of income and grant of relief, India has entered into agreement with foreigncountries. (The copy of this agreement is available with the Public Relation Officer, Income TaxOffice).

This agreement contains two alternatives :

i) Method of Exclusion : Income which arises in the territory of one of the contractingStates, is not taxed by other contracting State. However, such income can be takeninto account by the latter State for determining the rate of tax applicable to thetaxpayer’s other income, if the law of that State so requires.

ii) Method of Tax Credit : Income is taxed in both the countries in accordance with theirrespective tax laws. However, the country of the ‘residence’ of the taxpayer allowshim a credit against the tax charged thereon in the country of the source of suchincome.

Where any such agreement for avoidance of double taxation exists, then in the case of an asses-see to whom such agreement applies, the provisions of this Act shall apply to the extent theyare more beneficial to him. [sec. 90(2)]

Provision relating to double taxation relief, etc. (section 90A )

A new section 90A has been inserted to provide that any specified association in India mayenter into an agreement with any specified association in a specified territory outside Indiaand the Central Government may, by notification in the Official Gazette, make the necessaryprovisions for adopting and implementing such agreement for grant of double taxation relief,for avoidance of double taxation, for exchange of information for the prevention of evasion oravoidance of income-tax or for recovery of income- tax. It is further provided that in relation toany assessee to whom the said agreement applies, the provisions of the Income-tax Act shallapply to the extent they are more beneficial to that assessee.



It is also provided that any term used but not defined in the Income- tax Act or in the agree-ment shall have the same meaning as assigned to it in the said notification, unless the contextrequires otherwise and it is not inconsistent with the provisions of the Income-tax Act or thesaid agreement. For this purpose, the ‘specified association’ and ‘specified territory’ will benotified by the Central Government.

A consequential amendment has also been made to the definition of ‘rate or rates in force’under section 2(37) so as to provide a reference to the proposed new section.

Countries with which no Agreement Exists

Section 91 of Income-tax Act provides for the grant of unilateral double taxation relief to theresidents. Thus, if an Indian ‘resident’ proves that tax has been paid in respect of his incomewhich accrued or arose to him during the relevant Financial Year in the countries with whichIndia has no agreement for double taxation relief, he is entitled to a deduction from the Indianincome tax payable by him of an amount calculated on such doubly-taxed income at the Indianrate of tax or the rate of tax of the other country, whichever is lower.

Procedure for Grant of Unilateral Relief

Doubly-taxed income consists of the income accrued or arisen to a person in the foreign coun-try and subject to income tax in the foreign country as well as in India. But income which isdeemed to accrue or arise to tax-payer in India, even though it has been charged to income taxin foreign country, is not included in such double-taxed income. For the purpose of determin-ing the rate of tax in a foreign country, income tax and super tax if any paid by him, is dividedby the total income assessed in that country.

Income-tax in relation to any country includes any excess profits tax or business profits taxalso.

In case where the tax-payer has already paid tax on his total income in excess of the amountdetermined to be payable after granting him unilateral relief from double taxation, he is en-titled to refund of the excess.

Case Laws:

i) In case of conflict between Income-tax Act and provisions of DTAA, provisions ofDTAA would prevail over provisions of Income-tax Act. Section 90(2) makes it clearthat the Act gets modified in regard to the assessee insofar as the agreement is con-cerned if it falls within the category stated therein - CIT v. P.V.A.L. Kulandagan Chettiar137 Taxman 460/267 ITR 654.

ii) Tax liability arising in respect of a person residing in both contracting States has to bedetermined with reference to his close personal and economic relations with one orother - CIT v. P.V.A.L. Kulandagan Chettiar 137 Taxman 460/267 ITR 654.

iii) In absence of permanent establishment in India in regard to carrying on of businessof rubber plantations in Malaysia, business income earned by assessee out of rubberplantations could not be taxed in India - CIT v. P.V.A.L. Kulandagan Chettiar 137 Taxman460/267 ITR 654.

Documents

Assessment of Various Entities(21)