Social security contributions
Indian social security is broadly governed by the Employees’ Provident Fund and Miscellaneous Provisions Act 1952 (PF Act) and schemes made thereunder, namely, the Employees’ Provident Fund Scheme (EPF) and the Employees’ Pension Scheme (EPS). The Employees’ Provident Fund Organisation (EPFO), a statutory body established by the government of India, administers social security regulations in India.
Currently, Indian social security regulations apply mandatorily to an establishment in India employing 20 or more persons or where an establishment voluntarily seeks registration with the authorities. Employees (including foreign nationals) working with an establishment in India to which the PF Act applies are liable to contribute towards the provident fund at the fixed rate of 12% of salary. The employer is required to make the matching contribution and deposit both the employer’s as well as the employee’s contributions (i.e. 24%) to the provident fund of the employee by the 15th day of the following month.
Out of the employer’s contribution of 12%, an amount equal to 8.33% of salary (salary capped at INR 15,000 per month in respect of Indian employees) is allocated to the pension fund of the employee. For an employee who has joined the establishment on or after 1 September 2014, no allocation to the pension fund is made. In such cases, the entire employer’s contribution will be allocated to the provident fund of the employee.
The government of India made the social security scheme mandatory for cross-border workers. A foreign national qualifies as an ‘international worker’ if he/she is coming to work for an establishment in India to which the PF Act applies.
Similarly, an Indian national qualifies as an ‘international worker’ if he/she has worked or is going to work in a country with which India has entered into a social security agreement (SSA) and is eligible to avail benefits under the social security program of the host country, according to the terms of the relevant SSA. However, it has been clarified that Indian employees holding a certificate of coverage (COC)/detachment certificate, obtained from Indian social security authorities and contributing to the Indian social security schemes, will not become international workers and will continue to be treated like any other domestic Indian employees. Also, Indian employees qualifying as international workers on account of working/having worked in a country with which India has an SSA will re-acquire the status of Indian employees upon repatriation to India after completion of the overseas assignment. Accordingly, such employees will not be subject to the special provisions applicable to international workers after repatriating to India.
An international worker, from a country with which India has an SSA in force, is exempted from Indian social security where he or she:
- is contributing to his/her home country’s social security, either as a citizen or resident, and
- enjoys the status of ‘detached worker’ for the period, and according to the terms, specified in the relevant SSA.
Similarly, an international worker from a country with which India has entered into a bilateral comprehensive economic agreement prior to 1 October 2008 is exempted from Indian social security where:
- he or she is contributing to his/her home country’s social security, either as a citizen or resident, and
- the agreement specifically exempts natural persons of the other contracting country from contributing to the social security system of India.
Goods and services tax (GST)
The government of India took a landmark step and implemented the GST with effect from 1 July 2017. GST is an indirect tax, which is a transaction-based taxation regime.
For smooth GST implementation, the government has formed a GST Council. The Council consists of the State Finance Ministers representing their states. The GST Council provides recommendations to the government on various aspects of GST law, such as rate revisions and amendments in GST rules, etc.
Prior to GST, there were multiple indirect taxes leviable on various transactions at each stage separately by the Union Government and the states at varying rates. Such taxes included excise duty, service tax, value-added tax (VAT)/central sales tax (CST), entertainment tax, luxury tax, lottery taxes, state cesses and surcharges, etc. All such taxes (except customs duty) have been subsumed under GST, and there is one single tax applicable on supply of goods and services. However, there are a few products that continue to be outside the ambit of GST, like petrol, diesel, aviation turbine fuel (ATF), natural gas, and crude oil.
GST is a comprehensive ‘consumption tax’ levied on the supply of all goods and services. Indian GST is a dual model:
- Central GST (CGST), levied by the Central Government.
- State GST (SGST)/Union Territory GST (UTGST), levied by the State Government/Union Territories.
In case of intra-state supply of goods and services, CGST+SGST/UTGST would become applicable, and in case of inter-state supply of goods and services, Integrated GST (IGST) would become applicable. IGST is a sum of CGST and SGST/UTGST. The rate of GST varies from 5% to 28% depending upon the category of goods and services, the general rate of tax being 18%. Additionally, some category of goods/services, like vehicles, aerated beverages, etc., notified by the government are subject to Compensation Cess under GST.
The threshold limit for the purpose of obtaining GST registration is INR 2 million aggregate turnover in a tax year (INR 1 million for some special category states, like the North Eastern states). For the purpose of the threshold, aggregate turnover shall be computed on an all India basis. For some specific categories of supplies and suppliers, the registration requirement is mandatory.
Similar to previous VAT laws, there is a concept of composition scheme under GST for small traders. Small traders having turnover of INR 10 million have an option to avail a composition scheme. Under the said scheme, GST at a lower rate (1% of the taxable turnover for manufacture/traders and 5% in case of restaurants) would apply. The concept of composition scheme is not applicable for services, except restaurant services.
Import of goods and services
The import of goods under the GST regime will be subject to IGST and Compensation Cess (if applicable), along with Basic Custom Duty (BCD) and Social Welfare Surcharge (up to 10% is also levied on the BCD). BCD and Social Welfare Surcharge paid at the time of imports are not available as credit under GST; consequently, they will always be a cost to the importer.
Similar to erstwhile service tax laws, on import of service, service recipient would be liable to pay IGST under reverse charge. Also, there are specified categories of goods and services notified by the government on which GST needs to be paid by the recipient under reverse charge.
Zero-rated supplies/Export of goods and services
Export of goods and services are zero rated under GST. Exporters can claim refund of input tax credit of inputs/input services used in export of goods/services, subject to fulfilment of prescribed conditions. Per GST laws, exporters will be provided provisional refund within seven days from the date of acknowledgement.
For claiming the zero rate on exports, there is a requirement to file bond/Letter of Undertaking (LUT) to the jurisdictional tax authorities. Alternatively, exporter can pay tax on output and claim refund of the same.
Also, the supplies to a Special Economic Zone (SEZ) for authorised operations have been made zero rated under GST. Unlike the erstwhile indirect tax regime, which involved a lot of paperwork for claiming export refund claims, a simplified online process for claiming refund of exports has been specified under GST. However, presently along with online refund application, documents need to be filed manually to claim refund claim.
To facilitate trade for small exporters, the concept of 'merchant exporter' has been introduced under GST. Accordingly, the merchant exporters will now have to pay nominal GST of 0.1% for procuring goods from domestic suppliers for export, subject to conditions specified in the notification.
Input tax credit
Per input tax credit provisions stipulated under GST law, a registered taxable person is eligible to claim input credit of such goods and services that are used or intended to be used in the course or furtherance of business. However, there is a specified list of goods and services mentioned below where credit will not be available under GST:
- Personal use of goods and services procured.
- Goods and services being used for effecting exempt supplies.
- Supply of the following goods and services:
- Motor vehicles (credit available in certain cases where used for transportation business).
- Food and beverages, outdoor catering, beauty treatment, health services, cosmetic and plastic surgery, except where such inward supply of goods or services of a particular category is used by a registered taxable person for making an outward taxable supply of the same category of goods or services.
- Membership of a club, health, and fitness centre.
- Rent-a-cab, life insurance, health insurance, except where the government notifies the services that are obligatory for an employer to provide to its employees under any law for the time being in force.
- Travel benefits extended to employees on vacation, such as leave or home travel concession.
- Works contract services when supplied for construction of immovable property, other than plant and machinery, except where it is an input service for further supply of works contract service.
- Goods or services received by a taxable person for construction of an immovable property on one's own account, other than plant and machinery, even when used in the course or furtherance of business to the extend capitalised.
- Goods lost, stolen, destroyed, written off, or disposed of by way of gift or free samples.
Under GST, taxpayers are allowed to take credit of taxes paid on inputs (input tax credit) and utilise the same for payment of output tax liability. However, no input tax credit on account of CGST can be utilised towards payment of SGST/UTGST and vice versa. The credit of IGST is permitted to be utilised for payment of IGST, CGST, and SGST/UTGST in that order. Also, it is pertinent to note that the credit pool is state-specific (i.e. IGST, CGST, and SGST of one state cannot be used to offset output of IGST, CGST, and SGST liability of another state).
There are three monthly returns for a normal taxpayer under GST viz. GSTR 1 for output (to be filed by the tenth day of the succeeding month), GSTR 2 for input tax credit (by the 15th day of the succeeding month), and GSTR 3 a monthly tax return (by the 20th day of the succeeding month), and one annual return (by 31 December of the succeeding financial year). The government has also issued a requirement to file monthly GSTR 3B (to be filed by the 20th day of the succeeding month), and such monthly return need to be filed till December 2018.
Further, filing of GSTR 2 and 3 continues to be suspended. Recently, in a GST Council meeting, a new return design has been proposed. The highlights of the new design structure has been mentioned in the ensuing paragraphs.
Recently, in the 27th GST Council meeting, the GST Council has approved the revised design of GST returns. The GST Council has also decided to make GSTN a 100% government-owned company by buying out the shares. The major decisions taken by the GST Council are mentioned below:
- All taxpayers shall file one simplified monthly return with due dates being staggered based on the taxpayer’s turnover.
- Composition dealers and dealers having nil transaction will have facility to file returns on a quarterly basis.
- On the matching principle of GST, the supplier will continue to be required to upload the invoices in the system. For all business-to-business (B2B) supplies, the Harmonised System of Nomenclature (HSN) at the four-digit level will need to be used. The invoices can be uploaded any time. The system will automatically calculate tax liability based on the details of invoices.
- The input tax credit will also be calculated automatically by the system based on invoices uploaded by suppliers, and the buyer will not be required to upload any invoices for claiming credits.
- To incentivise digital payment, 2% concession in the GST rate on business-to-consumer (B2C) supplies is proposed if payment is made through cheque or digital mode, subject to a ceiling of INR 100 per transaction.
Customs duty is levied by the Central Government on goods imported into, and exported from, India. The rate of customs duty applicable to a product imported or exported depends upon its classification under the Customs Tariff Act, 1975. With regard to exports from India, customs duty is levied only on a very limited list of goods.
The Customs Tariff is aligned with the internationally recognised HSN provided by the World Customs Organisation (WCO).
Customs duty is levied on the transaction value of the imported or exported goods. According to section 14 of the Customs Act, 1962 (CA), the concept of transaction value is the sole basis for valuation for the purpose of import and export of goods. While the general principles adopted for valuation of goods in India are in conformity with the World Trade Organisation (WTO) agreement on customs valuation, the Central Government has framed independent Customs Valuation Rules that apply to the export and import of goods.
The customs duty applicable to any product is composed of a number of components, which are as follows:
- The import of goods under the GST regime will be subject to IGST and Compensation Cess (if applicable).
- BCD is the basic component of customs duty levied at the effective rate under the First Schedule to the Customs Tariff Act (CTA) and applied to the landed value of the goods (i.e. the cost, insurance, and freight [CIF] value of the goods). The peak rate of BCD is 10%.
- BCD and Social Welfare Surcharge ( at 10% are also levied on the BCD). BCD and Social Welfare Surcharge paid at the time of imports are not available as credit under GST; consequently, they will always be a cost to the importer.
The duty incidence arising on account of the IGST may be set off or refunded, subject to prescribed conditions. Where goods are imported, the Indian supplier may take credit of the IGST paid at the time of import for offset against the output IGST, CGST, and SGST liability. Also, the Central Government provides exemption from payment of BCD and IGST on import of certain specified goods, subject to fulfilment of prescribed conditions. For example, goods imported for petroleum operations are exempt from BCD.
Recently, during April 2018, the Central Board of Indirect Taxes and Customs (CBIC) notified the Pre- Consultation Regulations under customs law. Under the said regulations, before issuance of notice, importer will be informed in writing along ,with grounds for the intention of issuing the notice. The importer, within 15 days, is expected to respond in writing including the option to be heard in person. In absence of response within the time period specified, the officer will proceed with issuance of notice.
The e-way bill is an electronic bill that will be required for the movement of goods in case the value of the consignment is above INR 50,000. The movement of goods may be (i) in relation to supply, (ii) for reasons other than supply, or (iii) due to inward supply from unregistered persons.
The bill can be generated from the GSTN portal, and every GST-registered taxpayer is required to comply with the requirement to issue an e-way bill.
Recently, with effect from 1 April 2018, the Central Government has notified the requirement to generate an e-way bill for inter-state goods movement. For intra-state goods movement, the government has provided that the e-way bill system will be introduced with effect from a date to be announced in a phased manner, but not later than 1 June 2018.
However, majority states like Maharashtra, Assam, Madhya Pradesh, and Himachal Pradesh, etc. have already started issuing notifications for issuance of an e-way bill for intra-state goods movement.
Advance rulings for customs and GST
To enable foreign investors to ascertain their indirect tax liabilities arising from proposed business ventures in India, the Central Government has constituted the Authority for Advance Rulings (AAR) as a high-level, quasi-judicial body. The functions of the AAR consist of giving advance rulings on a specific set of facts relating to specified matters under customs and GST.
Advance rulings may be sought by any resident/non-resident investor entering into a joint venture in India in collaboration with another non-resident or resident of India, or by a resident setting up a joint venture in India in collaboration with a non-resident. Through the Finance Act 2005, this facility has also been made available to existing joint ventures in India. The Central Government is also empowered to include any other class or category of persons as eligible for the benefit of an advance ruling. Under the customs law, the Central Government has allowed a ‘resident public limited company’ to be eligible for an advance ruling. Under the erstwhile excise and service tax regime, advance rulings could be given only on a proposed transaction, whereas under GST, advance rulings can be obtained on a proposed transaction as well as a transaction being undertaken by the appellant.
In terms of GST provisions, the following matters/questions specified can be sought before the AAR:
- Classification of any goods or services, or both.
- Applicability of a notification issued under the provisions of the CGST Act.
- Determination of time and value of supply of goods or services, or both.
- Admissibility of input tax credit of tax paid or deemed to have been paid.
- Determination of the liability to pay tax on any goods or services, or both.
- Whether applicant is required to be registered.
- Whether any particular thing done by the applicant with respect to any goods or services, or both, amounts to or results in a supply of goods or services, or both, within the meaning of that term.
The comprehensive provision for advance rulings is provided under GST to ensure that disputes are minimal. Timelines are also given within which the ruling is to be given by the concerned authority. The aim is to provide certainty to the taxpayer with respect to one's obligations under the GST Act and an expeditious ruling, so that the relationship between the taxpayer and administration is smooth and transparent and avoids unnecessary litigation.
There are no wealth taxes in India.
Inheritance, estate, and gift taxes
There is no inheritance tax in India.
There is no gift tax liability on the donor. However, any sum of money aggregating to INR 50,000 or more received during the relevant tax year without consideration or for an inadequate consideration by an individual from any person not being a relative (see below for details) is subject to income tax in the hands of the recipient.
Similarly, the following receipts are also subject to tax:
- Any specified movable property/sum of money received without consideration, the FMV of which exceeds INR 50,000: Total amount is taxable.
- Any specified movable property received for a consideration less than FMV, where the difference of the FMV and a consideration is more than INR 50,000: Such difference is taxable.
- Any immovable property received without consideration, the stamp duty value of which exceeds INR 50,000: Total amount of stamp duty value is taxable.
- Any immovable property received for a consideration less than stamp duty value, where the difference of the stamp duty value and consideration is more than the higher of INR 50,000 and 5% of the consideration: Such difference is taxable.
The above receipts are not considered as taxable if the same is/are received from any relative, i.e.:
- brother or sister of the spouse
- brother or sister of either of the parents of the individual
- any lineal ascendants/descendants of the individual or spouse of the individual, or
- spouse of individual or of any of the above.
Further, the same are not considered as taxable if received on the occasion of marriage, under a will/inheritance, in contemplation of death of the payer, or through any other criteria specified in the law.
There is no comprehensive system of property taxation. Not only does it differ amongst the states, but it also varies between the municipalities within the states. The rate of tax levied is generally related to the prevailing market prices for property in each locality.
Capital gains taxes
As a general rule, capital gains from the disposal of capital assets are liable to tax in the tax year in which such assets are sold or transferred. Capital assets include all forms of property, stocks and shares, land and buildings, goodwill, etc. (but exclude personal effects except jewellery, stock-in-trade, stores, and raw materials held for business purposes). Jewellery also forms part of capital assets.
Categorising capital gains
Capital assets held for more than 24 months (12 months in the case of shares or securities listed on a recognised stock exchange in India, equity oriented mutual funds, and zero coupon bonds; 36 months in case of debt oriented mutual funds and unlisted debentures) are termed as ‘long-term capital assets’, and the assets not so held are called ‘short-term capital assets’. Capital gains arising from the transfer/disposal of long-term capital assets are called ‘long-term capital gains’. Gains arising from the disposal of short-term capital assets are called ‘short-term capital gains’. This distinction is important as long-term capital gains are taxed or treated beneficially and there are also planning opportunities to save taxes provided the consideration or gain is re-invested, subject to fulfilment of certain other conditions.
Long-term capital gains are subject to tax at a flat rate of 20% (plus applicable surcharge and health and education cess). Short-term capitals gains are added to the taxable income of the individual and subject to tax at normal slab rates.
Computation of long-term capital gains
Except in cases of debentures and bonds (other than capital indexed bonds issued by the government/Sovereign Gold Bonds issues by the Reserve Bank of India), the cost of acquisition of long-term capital assets is determined after indexing costs by a prescribed inflation factor (known as ‘indexed cost of acquisition’). The base year for computation of indexed cost of acquisition is 2001. Assets acquired before 1 April 2001 can be taken at fair market value as of 1 April 2001 at the option of the taxpayer.
In case of non-residents where shares or debentures of an Indian company are purchased by utilising foreign currency, the subsequent capital gains are determined by computing the gains in the same foreign currency in which it was purchased and reconverting the gains into Indian rupees to calculate the tax payable on the same.
However, there are a few exceptions for indexation and rate of tax on long-term capital gains/short-term capital gains:
- For equity shares and equity-oriented mutual funds, which have been sold on recognised stock exchanges in India and securities transaction tax (STT) has been paid, the long-term capital gain earned (if any) is fully exempt from tax. For long-term capital gain to be exempt in such cases, STT should also be paid on acquisition stage for shares acquired on or after 1 October 2004 (subject to certain exceptions as prescribed in this regard for acquisition of shares in an IPO, bonus, or rights issue by a listed company, etc.).
- Effective 1 April 2018, the above-mentioned exemption has been withdrawn, and long-term capital gain exceeding INR 100,000 will be taxable at the rate of 10% (without any indexation benefit). It is important to note that gains accrued based on FMV as on 31 January 2018 have been grandfathered (i.e. will not be liable to tax).
- For transaction of sale effective 1 April 2018, the cost of acquisition will be determined as the higher of the following:
- Actual cost of acquisition.
- The lower of:
- FMV as of 31 January 2018.
- The full value of consideration arising on transfer.
- Tax on long-term capital gains (arising to any person) on transfer of securities (other than units) listed on a recognised stock exchange in India or a zero coupon bond is computed at the lower of 10% on gains computed without indexation or 20% of gains computed without indexation (if applicable).
- In case of non-resident, if the securities are not listed on an Indian recognised stock exchange, the tax on corresponding long-term capital gains is computed at 10% (without indexation and/or conversion reconversion to/from foreign currency, as mentioned above).
- Short-term capital gains earned on equity shares and equity-oriented mutual funds, which are listed on a recognised stock exchange in India, are taxable at 15%, provided STT has been paid.
Note: For NRs, the basic exemption limit of INR 250,000 does not apply against the gains earned on sale of such shares/units.
Tax liability on long-term capital gains can be reduced by taking benefit of exemptions provided in the Act when gains/sale proceeds from the sale of the capital assets are reinvested into house property and/or prescribed investments, as the case may be.
Short-term capital losses can be offset against any capital gains (long-term or short-term). Long-term capital loss can only be offset against long-term capital gains. Unabsorbed capital losses (short-term or long-term) can be carried forward for a maximum of eight years to be offset only against future capital gains as mentioned above.
In order to raise funds for the ‘Start-up Action Plan’, the government has provided an exemption from long-term capital gains on sale of any long-term capital asset if the sale consideration is invested in units of a specified fund. The specified fund will be notified by the Central Government in due course, and the maximum deduction available will be INR 5 million. The investments should be held for a minimum period of three years to avail the exemption.
Further, an individual/HUF selling a residential property has the option to reinvest the long-term capital gain by subscribing to shares of a company that qualifies as a small or medium enterprise and also in shares of eligible start-ups with no cap on reinvestment of the capital gain. Investments under this provision can be made up to 31 March 2019. In case the eligible start-up is a technology driven start-up, it will be entitled to utilise the proceeds of such equity shares in computers or computer software.
Securities transaction tax (STT)
STT is applicable to transactions involving purchase/sale of equity shares, derivatives, units of equity-oriented funds through a recognised stock exchange, or purchase/sale of a unit of an equity-oriented fund to any mutual fund. The STT is levied for such transactions varies for each kind of instrument, whether delivery based or non-delivery based.
Buyback of shares
An additional tax is payable on transactions involving buyback of shares by unlisted companies from its shareholders. A tax at 20% (plus surcharge and health and education cess) is payable by the company on the difference of consideration paid on buyback and the issue price of shares. The buyback consideration received will be tax exempt in the hands of the receiver. No tax credit will be allowed in respect of such taxes paid, to the company or to the shareholder.