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Direct Taxes Code: Need for Greater Reflection

A new tax code that overhauls the complexities that have emerged in the Income Tax Act of 1961 has been long overdue. The draft Direct Taxes Code put out by the Finance Ministry for discussion and comment does just that in a number of areas. At the same time questions must be posed of the sweeping reduction in rates and restructuring of slabs in income tax, which are likely to rob the exchequer of a significant amount of income. Questions must also be asked of the proposed taxation of not-for-profit organisations.


Direct Taxes Code: Need for Greater Reflection

M Govinda Rao, R Kavita Rao

base proposed in the code will compensate for the revenue loss due to a change in the structure. It was John Maynard Keynes who stated, “Soon or late, it is ideas and not vested interests that are dangerous for good or evil”. But in India, the tax system has been affected more by vested

A new tax code that overhauls the complexities that have emerged in the Income Tax Act of 1961 has been long overdue. The draft Direct Taxes Code put out by the Finance Ministry for discussion and comment does just that in a number of areas. At the same time questions must be posed of the sweeping reduction in rates and restructuring of slabs in income tax, which are likely to rob the exchequer of a significant amount of income. Questions must also be asked of the proposed taxation of not-for-profit organisations.

M Govinda Rao ( and R Kavita Rao ( are with the National Institute of Public Finance and Policy.

Economic & Political Weekly

september 12, 2009

n the 2009-10 budget speech, Union Finance Minister Pranab Mukherjee promised to build “…a trust based simple, neutral tax system with almost no exemptions and low rates designed to promote voluntary compliance” and towards that end, committed to unveil a Draft Code of Direct Taxes for public discussion. The purpose of the new code is to simplify the enormous complexities in direct taxes since the enactment of Income Tax Act, 1961. As stated by the finance minister, the objective of the new code is, “…to improve the efficiency and equity of our tax system by eliminating distortions in the tax structure, introducing moderate levels of taxation and expanding the tax base”. In fact, periodic redrafting of the code is n ecessary to update the tax system to conform to emerging economic realities and clean up the complexities it acquires over the years.

Income taxes – both individual and corporate – have indeed become extremely complex over the years. The plethora of exemptions and tax preferences to fulfil a variety of objectives has not only eroded the base, it has also complicated the tax system with unintended consequences on resource allocation. The complexities in the Income Tax Act have only made the legal and accountants’ professions very lucrative. The situation has led not only to high administrative and compliance costs but also significant distortions in resource allocation.

Not surprisingly, the taxpayers are very enthused at the all-round reduction in the rates, but not on giving up exemptions and preferences. On the whole, the media and businesses have welcomed the draft code on the perception that a significant proportion of the taxpayers – both persons and businesses – will have to pay lower taxes. In fact, virtually everyone is oblivious of the revenue implications, and take it for granted that the expansion in the

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interests than by ideas and eventually, we should not end up with lower rates along with continued exemptions and preferences! This article attempts to evaluate the important changes proposed by the new code.

1 Personal Income Tax

The attempts to broaden the base by doing away with several exemptions and preferences in the new code are truly welcome and they can help in reworking the strategy towards achieving fiscal consolidation. In general, removal of exemptions and preferences is also important from the point of view of avoiding unintended distortions in the economy, reducing the compliance cost and ensuring greater horizontal equity. The best practice approach to tax reform advocates broadening the base not only to achieve greater neutrality and minimise the influence of vested interests on the tax system but also to raise revenues at lower tax rates. The latter is important, for, the distortions caused by the tax system is roughly equivalent to the square of the tax rate, and the lower the rate, the lower will be the distortions.

The new code seeks to broaden the base of individual income tax in a number of ways. The benefits provided by the employer such as free or concessional housing, medical benefits in any form, value of leave travel concessions and any encashment of unavailed earned leave would be included in the taxable income. Similarly, limited deductions will be allowed in medical expenses, interest on loans taken for higher education, rent paid and donations to specified causes. This reduces the scope of deductions to a considerable extent when compared to the present regime.

Removal of Housing Loan Exemptions

An important area where a substantial change is sought to be made to limit the


deductions is in respect of housing loans. In the prevailing system, interest paid on a housing loan is deductible from total income irrespective of whether the house is earning rental income or not. Further, repayment of the principal could be utilised as a part of the investments under section 80C. However, in the new code, deduction of loan repaid will no longer be deductible, and deduction on interest paid will be available only when the house earns rental income and will be limited to the extent of rent received. This is an important change, for there is no evidence to show that this incentive enhances the purchasing power of the taxpayer to acquire residential dwellings. In fact, anecdotal evidence suggests that the expansion in the benefits from this tax preference is accompanied by an increase in the price of dwellings. In other words, the benefits of this tax preference could be appropriated by the developers rather than individuals.

Treatment of Savings

The code proposes to make a major departure in the treatment of savings from the prevailing system of total exemption on savings as well as the return from savings to a system of Exempt-Exempt-Tax (EET). It is proposed to increase the exemption from the prevailing Rs 1 lakh to Rs 3 lakh in prespecified instruments. However, in the new regime, the list of eligible instruments will be pruned and while the savings as well as the returns on such savings will not be taxed, the tax will be levied when they are withdrawn for purposes of consumption. This treatment applies to current savings as well as to any superannuation and savings in pension funds. This brings the taxation system closer to one based on taxation of consumption rather than taxation of incomes per se. While theoretically there is much to commend this treatment of taxing savings, its political acceptability remains to be seen for, levying taxes on superannuation benefits and pension funds may be unpopular as it is perceived, inappropriately so, to place hardship on senior citizens who may not have any other regular source of income.

Treatment of Capital Gains

A major rationalisation proposed in the new code is in the treatment of capital gains and this applies to both individuals and companies. According to the new code, capital gains from all “investment assets” of an enterprise as well as all capital assets of an individual would be subject to tax upon realisation. The distinction between long-term and short-term capital gains is removed. For all assets, capital gains are to be measured as the value realised, net of inflation adjusted costs. While all capital gains will be subject to tax as a part of the income, the securities transactions tax will be abolished. Both taxing capital gains regardless of the length of holding the assets and abolition of securities transaction tax are in the right direction. There is no reason for not considering capital gains as legitimate income and subjecting them to tax. Further, any tax on transactions including the securities transaction tax adds to transaction costs and therefore is undesirable.

It is also important to note that rollover provisions for capital gains are limited to only a few transactions – sale of agricultural land to buy agricultural land, sale of investment assets to finance the purchase of the first house by an individual, and sale of investment asset if the proceeds from the same are invested into a capital gains savings scheme. There are evidently some other transactions where rollover is considered integral to business practices – fund management in a mutual fund for instance. If tax becomes due for each realignment of the portfolio based on current market assessment, there would be considerable outflow from the fund even if the final investor is not liquidating the investment. In other words, there is a lock-in into early investments resulting from the tax structure proposed. It is important to ask whether this is the intent of the

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provisions or whether such transactions should be permitted a rollover. It may be pointed out that in the absence of a rollover, it could alter the structure of financial markets. For instance, there could be more transactions in derivatives of the primary assets held without actual sales in the same. It is important to provide some clarity on this issue.

Rates and Slabs

The most important change proposed in the code is in regard to the structure of individual income taxation. The code has proposed substantial changes in the various brackets. While the exemption limit has been kept unchanged, it is proposed to levy the tax at 10% up to Rs 10 lakh, 20% between Rs 10 lakh to Rs 25 lakh and above that at 30% as against the prevailing brackets of up to Rs 3 lakh, Rs 5 lakh and Rs 10 lakh. Thus, virtually every taxpayer excluding those up to Rs 3 lakh income will be paying less by a third or more of the present tax liability and over 97% of the present taxpayers will be paying the tax at just 10%.

By any reckoning this is a massive reduction in the tax rates involving substantial loss of revenue. Surely, high income earners would welcome this change as they will have to pay less of the tax by a third or more. In fact, all the expansion in the base proposed in the code is not likely to offset the revenue loss. In 2009-10, the revenue from personal income tax is estimated at 2.2% of GDP and the reduction in the tax rates is likely to reduce the revenue by at least half a per cent of GDP at the present level and distribution of incomes. At a time when it is necessary to garner higher revenues to return to the path of fiscal consolidation,

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such a massive giveaway may only make fiscal adjustment process that much more difficult. Such a liberal giveaway does not serve the cause of vertical equity either. For a country with per capita income of Rs 25,500, levying the 10% tax up to Rs 10 lakh income is tantamount to throwing the baby out with the bath water.

The proposal to bring back the wealth tax into the tax system in the code is welcome from the viewpoint of equity as well as revenue. However, levying the tax at 0.25% of the value of wealth when it exceeds Rs 50 crore makes a mockery. Such tokenism is unlikely to either garner revenue nor will it improve equity and it will not be surprising if the tax is given a sound burial after trying it for a few years It is not clear what is intended to be achieved with such a tax.

2 Corporation Income Tax

The code proposes to make some significant changes in the treatment of corporate sector which are summarised in the following:

  • (i) A reduction in the corporate tax rate from 30% to 25%. Usually, the corporation income tax rate is aligned to the highest marginal rate of individual income tax. This is because individual income tax applies to individuals, Hindu Undivided Families, association of persons including small businesses and partnership firms. Keeping the corporation tax rate lower than the highest marginal rate of individual income tax can be desirable if that provides incentives to these smaller proprietary and partnership firms to graduate into becoming corporations. Any tax that helps to formalise the non-formal sector is desirable. However, whether this will happen is doubtful. There are various other taxes and regulations that actually provide incentives to the small firms to remain so.
  • (ii) In computing taxable profits of an enterprise, assets of the enterprise are segregated into business and investment assets. Value realised from the sale of the former would be included in the computation of profits of the enterprise. However, in the case of the latter, there is a separate regime for treatment of capital gains (discussed above). This segregation and differential treatment has certain implications for enterprises – the investment
  • Economic & Political Weekly

    september 12, 2009

    assets would not constitute an integral part of the business planning of a firm. Losses in the business activity of a firm cannot be offset by sale of “investment assets”. It is possible to view this as a mechanism to ensure that “business activity” of a firm is not diluted. Further, there is a notional segregation of the assets of the firm connected to the “business activity” and the rest. Surely, this is a potential area for litigation.

    (iii) The above reduction in the tax rate is combined with a reduction in the number of exemptions available within the statutes. While exemptions relating to the development of infrastructure units remain, most of the other exemptions of the existing tax regime do not find place in the new code. Specifically, exemptions for investment in specified geographical areas, those related to the information techno logy and business process outsourcing sector, as well as those relating to exports from the special export zones (SEZs) are excluded from the code. The code provides for grandfathering in these provisions, meaning thereby that while units currently availing incentives would continue to do so, no new units established after the enactment of this code will be eligible for these concessions. Hopefully, the sunset provisions in regard to some of these incentives will not be renewed. The rationalisation of the exemptions regime would increase the liability of the corporate entities, to the extent some benefits accrued in the present regime.

    In determining the dimensions of the tax incentives in sectors or activities where the incentives remain, the code limits the extent of incentive that the unit can avail to the amount of capital investment. In other words, the incentive regime is designed to help the units to recover their capital costs. Given the considerable apprehensions regarding extensive tax planning in response to the tax preferences resulting in evasion and avoidance, it is useful to limit the benefits proposed in the act. Since a bulk of the incentives now available extend to infrastructure sectors, this seems reasonable an interesting mechanism to quantify the benefits that the units can derive from the schemes.

    (iv) Another major change is in the form of the Minimum Alternate Tax (MAT)

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    – in the present regime, the tax is on book profits. Further, it was formulated in the nature of an advance tax from the potential taxes payable on corporate income – hence MAT paid was creditable against the taxes payable in subsequent years. The new code proposes to change the regime to a tax based on the value of assets and, further, it is proposed as a sunk cost rather than as an advance tax. This change is likely to have a profound impact on the tax liabilities of corporate firms in India. The proposed tax is at the rate of 2%1 of the value of assets, where the value of assets includes all existing operational assets as well as assets under construction.

    The rationale provided for this change is that a tax on assets allows for better and more efficient utilisation of the capital invested, since there are gains from the improved efficiency at least until such time as the companies are paying MAT in the place of a regular income tax. For a 2% tax on value of assets to be at least equivalent to a 25% tax on profits, there is an underlying assumption that the profits in the enterprise are at least 8% of the value of assets. While for most functional companies this may not be an unfair assumption, for start-ups and companies that are yet to establish a business presence, it could be an additional cost to surmount. Further, the cost of a business is altered by introducing this additional levy into the picture – the overall tax liability for any firm increases, implying thereby that the post-tax profits would be adversely affected, even if we assume that the pretax profits remain unaltered.

    It should be mentioned here that the reasons for introducing a MAT in the first place was to reduce the scope for companies to undertake tax planning and become no or low profit companies with very little liability for corporate tax, while, at the same time, declaring reasonable book profits. The difference between the profits for income tax purposes and book profits arises on account of two major reasons – owing to accelerated depreciation provisions within the income tax act and as a result of tax incentives that might be available in law. It is not clear why these differences should be retained and at the same time an attempt to correct for the imbedded impact is attempted through an


    additional levy such as the MAT. It should be kept in mind that the impact of these provisions is different across companies. Companies which derive benefits from accelerated depreciation and exemptions can broadly be classified into two categories – those that are expanding their businesses and those that are in the nature of start-up firms working with the first or first few units. Since the former would have some reasonable tax liability from the older units, they can use this to offset the gains from the concessions available from the new units. In the case of the l atter, however, such possibilities do not exist and hence the tax imposes additional costs on these units. In other words, these provisions seem to be driving a wedge between the already existing prosperous firms and the new entrants. With a binding cost, this wedge would be driven in deeper than before.

    3 Treatment of Non-Profit Organisations

    The most contentious issue is the proposal to withdraw exemptions to charitable institutions. Presently, not for profit organisations (NPO) enjoy exemption on their donations as well as any surplus they create under Sections 80-G or 35(1)(3) of the Income Tax Act. Many recent committees on tax reform have suggested changes in the treatment of NPOs to avoid the misuse of the exemptions by them. Indeed these institutions provide various public services and serve a variety of public purposes which the government is unable to. Although the intent is to prevent the misuse of the exemptions, the proposal extends the scope of the tax even to genuine institutions involved in anti-poverty interventions, social organisations, education and healthcare activities and those engaged in serious academic and policy research.

    The code dispenses away with the term “Charitable Purpose” and replaces it with “permitted welfare activities” which include relief of the poor, advancement of education, provision of medical relief, preservation of environment, preservation of monuments or places and objects of artistic or historic value and any other object of general public utility. It is proposed that the surplus earned by these organisations be taxed at the rate of 15%.

    The surplus would be computed to include surplus from the welfare activity and the capital gains from transfer of any financial investment asset. Here, any donations to the corpus of the institution are not to be included in the computation of surplus. All expenditure, current and capital incurred in order to provide the welfare activity can be deducted from the gross receipts from the activity. It may be mentioned that the gross receipts would include all receipts from the transfer of any business asset of any investment asset of a non-financial nature. In order to ensure that tax planning does not drive the establishment of a non-profit organisation (which can then transform into a body corporate, for instance) it is proposed that whenever a non-profit organisation changes form such that it no longer remains non-profit, tax at the rate of 30% would be payable on its net worth.

    Working under the assumption that the rationale for providing tax preferences to the non-profit sector remains unchanged, and given the fact that the surplus in any NPO does not accrue to any individual, there is a continuing need to support such institutions. Closer and more effective regulation and a more precise definition of what constitutes welfare activities might help to minimise the perceived misuse. The former is critical since, part of the rationale for introducing a tax on these institutions is to provide a regulatory and monitoring mechanism within the income tax system, in the absence of such a mechanism outside the tax network. It should, however, be recognised that with the introduction of the tax, even if the rate is a lower 15%, limits the scope for these activities. It is, therefore, important to explore the alternative mechanisms to limit misuse rather than the proposed taxing their surpluses even if it is at a lower rate.

    Clearly, the code seems to have underestimated the good work done by many NPOs. While it is possible that provision for exemption has been misused, it would be improper to deny the benefit to genuine charitable institutions, research organisations and other NPOs which do considerable philanthropic work, further the cause of education, health and research. In fact, providing incentive to them to generate surpluses will enable

    september 12, 2009

    them to build corpuses which in the longer run will reduce their dependence on the government.

    Concluding Remarks

    The proposal to expand the tax base by doing away with various exemptions and preferences in the new code is welcome. However, its actual implementation will require the finance minister to resist the pressure from special interest groups who, while welcoming the reduction in rates, would like the exemptions to continue. In particular, the proposal to expand the tax base by rationalising savings incentives, deductions for housing and partial allowance for education and medical expenses should help to expand the tax base and simplify the tax system. The distinction between short-term and long-term capital gains, abolition of securities transaction tax and tax on the income from gains after indexation at regular rates too is welcome.

    However, the proposed changes in the tax brackets will rob the exchequer of the benefits of a larger tax base and is likely to result in significant revenue loss to the exchequer. If, indeed, the special interest groups prevail in keeping the exemptions and preferences unchanged while the tax rate is reduced, there will be a huge loss of revenue. The important question is whether the country can afford this at the time when the need of the hour is to return to the path of fiscal consolidation. The proposed wealth tax is likely to be a mere token and it is not likely either to generate any significant revenue or improve equity in the tax system. It makes no sense to have an exemption limit as high as Rs 50 crore and levy the tax at 0.25% on the wealth above that. The code does not r ecognise the good work many of the NPOs have done over the years in providing various services which the government cannot and in its attempt to prevent m isuse ends up reducing a conceptual argument for not taxing these organisations into a tax preference.


    1 The rate for firms in the banking sector is different at 0.25% of the value of assets. Since the usual relationship between the assets of a bank and the returns from the same are significantly different from the returns on assets in the rest of the economy, this seems like a fair differentiation.

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