financial services post budget analysis
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Financial Services in IndiaPost Budget 2011 Analysis:Insight at a glance
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The Indian Finance Minister Mr. Pranab Mukherjee
presented the Union Budget 2011 in the Indian
Parliament on February 28, 2011.
The budget announcements as they may impact regu-
lations and taxation relevant to fnancial services sector
entities in India are highlighted hereunder:
Industry Overview
The past year saw banking deposit growth slow-
down, as real interest rates were depressed, especially
compared to returns in other ast-recovering asset
markets (real estate, gold, and stock markets).
The priority is to considerably extend the reach o
banking to. help mobilize more savings, add more
depth, and more efciently intermediate opportuni-
ties, including those in the traditional ‘priority’ sectors.
Also equally important is deepen domestic capital
markets and the role o non-bank institutions, espe-
cially in corporate bond and debt markets.
The Finance Minister has announced many reorms
and changes to policy ramework or deepening o the
market and or inclusive growth o the market.
Key announcements / changes to policy
framework
Tax ReformsThe introduction o the DTC and the proposed GST
will result in moderation o rates, simplifcation o laws
and better compliance.
The Direct Taxes Code Bill was introduced in
Parliament in August, 2010. Ater receiving the
report o the Standing Committee, the Government
will be able to fnalise the Code or its enactment
during 2011-12. This has been a pioneering eort in
participative legislation. The Code is proposed to be
eective rom April 1, 2012 to allow taxpayers, prac-
titioners and administrators to ully understand the
legislation and adjust to the revised procedures.
Unlike DTC, decisions on the GST have to be taken
in concert with the States and considerable progressin the last our years. Areas o divergence have been
narrowed. As a step towards the roll-out o GST,
the Constitution Amendment Bill is proposed to be
introduced in Parliament in this session. Work is also
underway on drating o the model legislation or the
Central and State GST.
Further a strong IT inrastructure is being established
alongwith the NSDL that will establish and operate the
IT backbone or GST.
Regulatory Reforms (During 2010-11)
Draft discussion paper on entry of new banks in
the private sector.
In August 2010, RBI released a discussion paper on
banking licenses to private sector players. The discus-
sion paper outlines the criteria and requirements on
capitalisation, governance, shareholding, priority
sector norms that may be laid down or the banking
aspirants. These include corporate houses, existing
NBFC groups seeking banking license, other fnancialservices players etc.
Core Investment Companies
In August 2010, RBI brought holding companies
within its regulations by notiying them as CICs. With
this regulation, most industrial groups / corporate
houses which held portolio companies under a
holding company would be required to register such
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Financial Services in India Post Budget 2011 Analysis: Insight at a glance | 3
holding company as a CIC with RBI. Such CICs would
be governed by the specifed capital adequacy and
leverage ratios and would need to make regular
reporting / disclosures to RBI.
Draft discussion on presence of foreign banks in
India
In January 2011, RBI released a discussion paper onpresence o oreign banks in India. The discussion
paper seems to make a compelling case or Wholly
Owned Subsidiary orm o presence or oreign banks,
both or existing banks as well new banks. RBI has
outlined the possible requirements that may be laid
down or oreign banks as regards capitalisation,
governance, priority sector norms, etc.
Reforms announced in Budget 2011
Foreign Investments in Mutual Fund Schemes
Currently, oreign investments in Mutual Fund Schemes
is allowed only or Foreign Insitutional Investors (FIIs)
and Sub-accounts. It has been decided to permit SEBI
registered Mutual Funds to accept subscriptions rom
oreign investors who meet the KYC requirements
or equity schemes. This would enable Indian Mutual
Funds to have direct access to oreign investors and
widen the class o oreign investors in Indian equity
market.
Banking license to private sector playersPursuant to the release o discussion paper on banking
licenses to private sector players, RBI has proposed
some amendments in the Banking Regulation Act. It
is proposed and suitable amendments may be made
towards the same. It is expected that RBI would issue
the fnal guidelines beore the close o the fnancial
year 2012.
Recapitalisation of Public Sector Banks & Regional
Rural Banks
To enable Public Sector Banks to maintain a minimum
Tier I CRAR at 8 percent, it is proposed to provide a
sum o a sum o Rs 6000 crore or the year 2011-12
towards the same.
Also it is proposed to provide a sum o Rs. 500 croresto enable Regional Rural Banks to maintain a CRAR o
9 % as on March 31, 2012.
Micro Finance Institutions
It is proposed to create “India Microfnance Equity
Fund” with SIDBI with a corpus o Rs 100 crores. This
Fund would be used to provide equity to smaller MFIs
and would help them maintain growth and achieve
scale and efciency in operations.
Further, it is proposed to create a “Womens SHG
Development Fund” with a corpus o Rs 500 crore.
This Fund would be used to empower women and
promote their Sel Help Groups.
The committee set up by RBI to look into issues
relating to micro fnance sector in India has submitted
its report. The Government is considering putting in
place appropriate ramework to protect the interest o
small borrowers.
Financial Sector legislative Initiatives
With a view to continuing the fnancial sector reorms,
it is proposed to take up the ollowing legislations:
(i) The Insurance Laws (Amendment) Bill, 2008
(ii) The Lie Insurance Corporation (Amendment) Bill,
2009
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(iii) The revised Pension Fund Regulatory and
Development Authority Bill, frst introduced in
2005
(iv) Banking Law Amendment Bill, 2011
(v) Bill on actoring and Assignment o Receiveables
(vi) The State Bank o India (Subsidiary Banks Laws)
Amendment Bill, 2009, and
(vii) Bill to amend RDBFI Act 1993 and SARFAESI Act
2002.
Housing Sector Finance
The existing scheme o interest subvention o 1
percent on housing loans is extended to cover housing
loans upto Rs 15 lakhs where the cost o the housedoes not exceed Rs 25 lakh. Further the existing limit
under priority sector lending or housing loan to
dwelling units, has been increased rom Rs 20 lakhs to
Rs 25 lakhs.
Financial Sector Legislative Reforms Commission
The Government had set up a Financial Sector
Legislative Reorms Commission under the Chair o
Justice B. N. Srikrishna. It would rewrite and streamline
the fnancial sector laws, rules and regulations and
bring them in harmony with the requirements o a
modern fnancial sector. The Commission is expected
to complete its work in 24 months.
The Companies Bill introduced in the Parliament
in 2009 has been received rom the Parliamentary
Standing Committee. The proposed bill will be intro-
duced in the Lok Sabha in the current session.
Financial inclusion
In the pursuit o fnancial inclusion, RBI had advised
Banks to provide banking acilities to habitationshaving a population o over 2000, by March 2012.
Banks have identifed about 73,000 such habitations
or providing banking acilities using appropriate tech-
nologies. It is expected that banks will cover around
20,000 villages during 2010-11. The remaining will be
covered during 2011-12.
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Financial Services in India Post Budget 2011 Analysis: Insight at a glance | 5
Proposed Tax Amendments
Direct Tax
The key direct tax changes pertinent to Financial
Services Sector are:
Rate o Tax
There is no change in the basic income-tax
rate applicable to domestic as well as oreigncompanies o 30% and 40% respectively.
The existing surcharge o seven and one-hal per
cent on tax o a domestic company is proposed
to be reduced to ve per cent. In case o
companies other than domestic companies, the
existing surcharge o two and one-hal percent is
proposed to be reduced to two per cent.
Additional surcharge called the Education cess
and Secondary and Higher education cess shall
continue to be levied at the rate o two per cent
and one percent respectively, o income tax
including surcharge, in all cases.
Minimum Alternate Tax (MAT) under Section
115JB
It is proposed to increase the rate o MAT to
eighteen and one – hal per cent rom the
existing eighteen per cent on book prots.
This amendment is proposed to take eect rom
1st April, 2012 and will, accordingly, apply in
relation to the assessment year 2012-13 and
subsequent years.
Alternate Minimum Tax (AMT) made appli-
cable to Limited Liability Partnerships (LLP)
It is proposed that an LLP will be liable to AMT
at the rate o eighteen and one-hal percent
on adjusted total income by introducing a new
Chapter XII- BA (Sections 115JC to 115JF).
Adjusted total income shall be the income beore
giving eect to this Chapter as increased bydeductions, in respect o income, claimed under
Chapter VI-A and section 10AA o the Act. LLP
means a partnership rm ormed and registered
under the Limited Liability Partnership Act 2008.
Our observation:
The long-term capital gains exempt from tax
as per section 10(38) of the Act should not
be included in calculating the adjusted total
income for the purpose of computing the
AMT liability in case of LLP whereas the same
is included for the purpose of computing MAT
liability in case of companies.
Credit in respect o tax paid by LLP under this
Chapter XII-BA (Sections 115JC to 115JF ) shall
be allowed to the extent o the excess o the
AMT paid over the regular income-tax. It shall
be allowed to be carried orward upto ten
assessment years immediately succeeding the
assessment year or which such credit becomesavailable and seto in the assessment year in
which the regular income exceeds the AMT
prots.
These amendments are proposed to take eect
rom 1st April, 2012 and will, accordingly, apply
in relation to the assessment year 2012-13 and
subsequent years.
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Employers’ contribution to new pension
system
At present, employer contribution to the
new pension system (NPS) is not allowable as
deduction and the employers and employees
contribution to the NPS was allowable as a
deduction under section 80CCD subject to
limits under section 80 CCD o 10% o salaryrespectively, within the aggregate limit o Rs.
1,00,000 under section 80 CCE [aggregate limit
o Rs.1,00,000 applies or all deductions under
sections 80C, 80CCC and 80CCD].
The Budget has proposed to insert a new sub-
section in section 36 whereby employers’ contri-
bution to NPS to the extent o 10% o the salary
o the employee will be allowed as a deduction
or the employer. The employees’ contribu-
tion will continue to be taxable as salary under
section 17 (1) (viii) o the Act. The employers’ and
employees’ contribution to the extent o 10% o
salary respectively, will be allowed as a deduction
under section 80CCD. The employers’ contribu-
tion is proposed to be allowed under section
80CCD without any monetary limit as the same
is proposed to be excluded rom the aggregate
ceiling o Rs.1,00,000 under section 80CCE.
Taxation o certain oreign dividends at areduced rate
Under the existing provisions o the Income tax
Act, dividend received rom oreign companies
is taxable in the hands o the resident share-
holder at the applicable marginal rate o tax. It
is proposed that dividend received by the Indian
company rom a oreign subsidiary company
will be taxed at teen percent (plus applicable
surcharge and cess) on the gross amount o
dividend by introducing new section 115BBD.
Subsidiary oreign company’ means a oreign
company in which the Indian company holds
more than hal in nominal value o the equity
share capital o the company.
This amendment is proposed to take eect rom
1st April, 2012 and will, accordingly, apply in
relation to the assessment year 2012-13 and
subsequent years.
Rationalisation o Tax on income distributed
to unit holders
It is proposed to amend section115R(2) to levy
additional income-tax at a higher rate o thirty
percent, on income distributed by debt unds to a
person other than an individual or HUF .
There will be no change in the rate o income-tax
in case o distribution to any individual or HUF.
Distribution o income o an equity oriented und
shall continue to be exempt rom tax.
These amendments are proposed to take eect
rom 1st June, 2011.
Inrastructure debt und To acilitate augmenting long term unds or
inrastructure rom overseas, it is proposed
to amend section 10 to enable the Central
Government to notiy such inrastructure debt
und set up in accordance with the prescribed
guidelines. The income o such debt und would
be exempt rom tax under section 10(47) subject
to ling o Return o income in India.
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Financial Services in India Post Budget 2011 Analysis: Insight at a glance | 7
It is urther proposed that the oreign investor
would be liable to tax on the income rom
such inrastructure debt und at the rate o
5% plus applicable surcharge and cess as per
amendment to section 115A o the Act, and
tax is to be deducted at that rate by introducing
new section 194LB.
These amendments are proposed to take eect
rom 1st June, 2011.
Reporting o activities o Liaison ofces
A new section 285 is introduced in the Act
which mandates the ling o annual inormation
with the Assessing ocer within sixty days rom
the end o the nancial year, in the prescribed
orm and providing the prescribed details by
non residents having liaison oces in India.
The amendment is proposed to take eect rom
1st June 2011.
Allotment o Document Identifcation
Number – Section 282B- Omitted
Considering the practical diculties due to
non-availability o requisite inrastructure on an
all India basis, the aoresaid section is proposed
to be omitted.
The above section was to come into orce rom
1st July, 2011. This amendment is proposed to
take eect retrospectively rom 1st April, 2011.
Rationalisation o Transer Pricing provisions
a) Revision proposed to +/- 5% variation in
computing arm’s length price
Currently, i the variation between the arm’s
length and the actual price o the transac-
tion is within a range o 5%, then a transer
pricing adjustment to the price is not made.Instead o 5%, the allowable variation will be
such percentage as may be notied by the
Central Government.
b) Enhancement o TPO’s jurisdiction
The Act currently provides that the TPO can
determine the arm’s length price o an inter-
national transaction, only i such transaction
is reerred by the AO.
Eective 01 June 2011, it is proposed, that
the jurisdiction o the TPO shall extend to the
determination o arm’s length price o any
international transaction that comes to his
notice in the course o proceedings.
c) Power o survey conerred on the TPO
The TPO can currently exercise powers
o summoning and calling o details or
the purposes o inquiry or investigation in
determining an arm’s length price. It is
now proposed to grant additional powers
o survey, so as to conduct on-the-spot
enquiry and verication. This amendment isproposed eective 01 June 2011.
d) Extension o time limit or fling return o
income or certain Corporate Assessees
The Act species 30 September as the
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due date or ling o return o income or
corporate assessees. In addition, corporate
assessees having international transactions
are required to le the transer pricing report
in Form 3CEB on or prior to the specied
date.
This ling date is extended to 30 Novemberin view o practical diculties o accessing
contemporaneous comparable data that is
required to le such a transer pricing report.
Counter measures in respect o transactions
with persons in notifed jurisdictional area
Anti avoidance measures have been proposed
to discourage transactions by a taxpayer with
persons located in a country or jurisdiction
which does not eectively exchange inorma-
tion with India. As per the proposed section
94A o the Act, the Central Government will
notiy such country or territory as a notied
jurisdictional area.
All parties to the transaction entered into with
a person located in such area to be deemed
associated enterprises and the transaction to be
deemed international transaction and transer
pricing provisions will apply. No deduction or
payment made to any nancial institution shall
be allowed unless the taxpayer urnishes an
authorization in prescribed orm to seek inor-mation rom the institution. No deduction o
any other expenditure or allowance (including
depreciation) arising rom such transaction to
be allowed unless prescribed documentation
is maintained by the assessee. The onus is on
the assessee to satisy the source o receipt o
money rom such notied area, in the absence
o which the amount shall be deemed to be
income o the assessee. Any payment made to
a person in such notied area shall be liable to
withholding tax at the higher o rate in the Act
or rate in orce or 30 percent.
This amendment is proposed to be eective
rom 01 June 2011.
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Indirect Tax
• Followingamendmentshavebeenmade/
proposed with regard to Lie Insurance Service:
- The scope o Lie Insurance Service has been
expanded to cover all services, including in
relation to management o investments. This
change will come into eect rom the date
to be notied ater the enactment o theFinance Bill.
- Ater the enactment o the new levy, it is
proposed to amend the Service Tax Rules to
give the option to pay tax at the standard
rate on that portion o the premium that has
not been invested and is so indicated in any
o the documents given to the policy holder
where such option is presently not available.
- Where the break-up is not indicated in any
document issued to the policy holder, the
optional composition rate o service tax is
proposed to be 1.5% o the gross amount
o premium instead o 1% at present.
• Services provided by an insurer carrying on
General Insurance business to any person
or providing insurance under the Rashtriya
Swasthya Bima Yojana have been exempted
rom the whole o the service tax w.e.. 1
March 2011.
• PointofTaxationRules,2011willbeintro-
duced w.e.. 1 April 2011 which determine
the point in time when the services shall be
deemed to be provided. The general rule will
be that the time o provision o service would
be the earliest o the date on which service
is provided or to be provided, the date o
invoice or the date o payment. Consequential
changes have also been made in the Service
Tax Rules, 1994 to alter the provisions relating
to date o payment o service tax.
• Thescopeofthedenitionof‘inputservices’
has been extensively amended.
• NewmethodofproportionatereversalofCENVAT Credit in case o providing o taxable
and exempted services has been introduced
w.e.. 1 April 2011 with the ollowing
exceptions:
- 50% o the CENVAT credit availed would be
required to be reversed by a Banking and
Financial Institution in case o payment o
service tax under the taxable category o
Banking and Other Financial Services.
- 20% o the CENVAT credit availed would
be required to be reversed by providers o
Lie Insurance Service and Management o
Investment under ULIP Service.
•Rule6(5)oftheCENVATCreditRules,2004
which allows the utilization o the entire
CENVAT credit with regard to specied services
as long as these services are not entirely used
or providing exempted services has been
deleted.
• Provisionswithregardtorefundofservicetax
in case o services provided to SEZ units/ devel-
opers have been amended w.e.. 1 March
2011 as under:
- No service tax is required to be paid i the
same are meant to be ‘wholly consumed’
within SEZ including services liable to tax
under reverse charge mechanism.
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- It has been specied that all services
received by an entity in a SEZ which does
not have any other DTA operations will
constitute services ‘wholly consumed’
within the SEZ.
- The criteria or the determination o
services ‘wholly consumed’ within SEZ hasbeen laid down.
- Reund o the services which are not
wholly consumed shall be available on
pro rata basis, i.e., ratio o SEZ turnover to
total turnover.
• Anewrulehasbeenintroducedinthe
Service Tax (Determination o Value) Rules,
2006 prescribing the value o the Money
Changing Service w.e.. 1 April 2011. The
value shall be determined as under:
- Where one o the currencies is Indian
rupee, the value o the said service will be
the dierence between the buying rate or
the selling rate, as the case may be, and
the RBI reerence rate or that currency or
that day multiplied by units o currency
exchanged.
- I RBI reerence rate is not available, thevalue shall be 1% o the value o money
exchanged in Indian rupees.
- I both the currencies are not Indian
rupees, the value would be 1% o the
lesser o the amounts receivable i the two
currencies are converted at RBI reerence
rate.
• Thecompositionrateofservicetaxappli-
cable in relation to purchase or sale o
oreign currency, including money changing,has been reduced rom 0.25% to 0.1% w.e..
1 April 2011. The option o paying service
tax on billed charges without applying
composition rate has been withdrawn.
• ExportofServiceRules,2005havebeen
amended to change the perormance based
condition or services o credit rating agency
and market research agency to recipient
based condition in order qualiy as export o
service w.e.. 1 April 2011. Corresponding
changes have also been made in the Taxation
o Services (Provided rom Outside India and
Received in India) Rules, 2006.
• Therateofinterestonaccountofdelayin
payment o service tax and collection o
service tax in excess o the requirement has
been increased rom 13% to 18% w.e.. 1
April 2011.
• Prosecutionprovisionsandotherprocedural
changes as regards penalties will be made
applicable rom the date o enactment o the
Finance Bill.
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Financial Services in India Post Budget 2011 Analysis: Insight at a glance | 11
Way forward
The Finance Minister has introduced or will be
introducing major policy changes to the regula-
tions, e.g. conversion o branch o oreign banks
into subsidiaries; conversion o NBFC to banks
requiring hiving o o certain business, etc.,
the tax implications o which have not beenaddressed in the Budget.
There could opportunities to structure Debt
Inrastructure Funds or investment by oreign
investors.
Tax payers beore entering into transactions or
contracts with entities should ascertain whether
they are rom countries with which India has a
DTAA or India has signed TIEA so as to reduce
the disallowance or addition to total income.
In case o existing contracts / transaction with
entities in notied jurisdictional areas, the
taxpayer should obtain proper documentations
to reduce the risk o disallowance / addition to
total income.
India has entered into Tax Inormation Exchange
Agreements (TIEA) with 10 countries, which are:
Argentina, Bahamas, Bermuda, British Virgin
Islands, Cayman Islands, Isle o Man, BritishIsland o Jersey, Marshal Islands, Monaco, and
Saint Kitts and Nevis. Cabinet Approval, we
understand, has been granted in case o 8 o
them.
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Glossary
Abbreviation Long Form
CIC Core Investment Company
RBI Reserve Bank o India
SEBI Securities Exchange Board o India
RDBFI Recovery o Debts due to Banks and FinancialInstitutions
SARFAESI The Securitisation and Reconstruction o Financial
Assets and Enorcement o Security Interests
CRAR Capital Risk Adequacy Ratio
KYC Know Your Client
The Act The Income-tax Act, 1961
DTC The Direct Tax Code
GST Goods and Services Tax
NSDL National Securities Depository Limited
SIDBI Small Industries Development Bank o India
SEZ Special Economic Zones
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