CBDT issues clarifications regarding unabsorbed depreciation and unutilised MAT credit for companies opting for concessional tax rates

Background

The Government of India recently announced significant reduction in corporate tax rates through The Taxation Laws (Amendment) Ordinance, 2019 (‘Ordinance’). The Ordinance provides for a reduced tax rate of 22% for existing domestic companies and 15% for newly set up manufacturing companies. The taxpayer has the option to opt for lower tax rate or to continue under the existing tax regime and avail existing deductions and set-off of losses.

The Ordinance also provides that Minimum Alternate Tax (MAT) shall not apply to any taxpayer opting to be governed by these lower tax rates. One of the conditions for availing the lower tax rates is that the taxpayer shall not be eligible to set-off brought forward tax losses against its taxable income.

The drafting of the Ordinance left open certain key questions. The CBDT through Circular No. 29/2019 dated 2 October 2019, has sought to clarify the following two questions:

  • Whether taxpayers will be eligible to set-off unabsorbed depreciation against taxable income of FY 2019-20 and subsequent years?
  • What will be the position of unutilised MAT credit since the provisions of MAT no longer apply to taxpayers opting for concessional tax rates

 

Clarification 1:

A company opting for the lower tax rates shall not be eligible to set-off any brought forward business loss on account of additional depreciation

Key Takeaway:

The Clarification provided by the CBDT, with due respect, appears misplaced. Denial of benefit of unabsorbed depreciation will require an amendment in section 32(2) which can be carried out only by approval from the Parliament of India or a Presidential Ordinance and not by the CBDT through issuance of Circular. Therefore, to that extent, the Circular No. 29/2019 may be considered as ultra-vires the powers of CBDT and may not survive judicial review. Please refer the subsequent paragraphs for a discussion on this aspect.

It is pertinent to note that the restriction is only on set-off of unabsorbed additional depreciation. The set-off of normal depreciation should continue unabated

Be that as it may, taxpayers opting to be governed by the Circular will have to carry out active number- crunching to determine the component of unabsorbed additional depreciation comprised in brought forward depreciation

Our reasoning:

  1. The restrictions provided under the newly inserted section 115BAA(2) has three clauses, as under:
  • Clause (i) prohibits claiming specified deductions, including additional
  • Clause (ii) prohibits set-off of brought forward tax losses relating to deductions under Clause (i)
  • Clause (iii) provides for claim of current year depreciation in such manner as may be prescribed

It is a settled position under the Income Tax Act, 1961 (Act) that depreciation is an allowance and not a deduction. Therefore, the restriction under Clause (ii) dealing with losses relating to deductions referred in Clause (i) should not cover additional depreciation.

 

  1. Under section 32(2) of the Act, unabsorbed depreciation is treated as depreciation of the current year and can be carried forward indefinitely to be set-off against taxable income of future years. As such, when the taxpayer off-sets unabsorbed depreciation, technically, the taxpayer claims off-set of the current year depreciation and not of a brought forward loss. Therefore, any restrictions on brought forward losses should not apply to brought forward depreciation

 

  1. It is also an established position that unabsorbed tax losses are different than unabsorbed A case in point is the provisions of section 79 of the Act which deny benefit of brought forward losses to closely held companies in cases of change in control. Courts have held that section 79 would not apply to brought forward unabsorbed depreciation as depreciation is not a loss.
  2. The CBDT can issue Circulars only for administrative and procedural guidance. A Circular cannot amend or restrict the operation of the law. It is pertinent to note that the clarification is provided by the CBDT by way of a Circular and has not been announced through a Supplementary Ordinance.

 

Clarification 2:

A company opting for the lower tax rates shall not be eligible to set-off unutilised MAT credit

Key Takeaway:

Since the provisions of MAT do not apply to taxpayers opting for the lower tax rates, any unutilised MAT credit available with these companies up to 31st March 2019 shall lapse. This could require writing-off of unutilised MAT credit as an expense to the Profit and Loss Account, impacting the Profit after Tax.

This provision, in effect, will make the MAT paid in earlier years a final tax payment. However, since an option has been provided to the taxpayer of not opting for the concessional tax rate and utilise the MAT credit, a constitutional challenge to this clarification may not survive

Summary

The changes made by the Ordinance and this recent clarification present a strong case for the taxpayers and tax advisors to sit together for carrying out a tax review of existing business operations to ascertain whether any tax optimisation avenues exist and what would be the opportune time for the taxpayer to opt for the lower headline tax rate of 22%

Contact Us

For any queries and feedback, you may please reach us at [email protected]

Information to Include in Director’s Report

The following information must be mandatorily disclosed in the Director’s Report filed by the Board of Directors:

1 Dividend, if declared & amount, if any, carried forwarded to reserves
2 Details of ESOPs:

a. Options granted

b. Options vested

c. Options exercised, and

d. Total number of Options in force, if any

3 Information about the financial performance / financial position and details of the subsidiaries / associates/ JV
4 Details of loans, investments and guarantees by the company
5 Details relating to deposits, covering the following:

Accepted during the year;
Remained unpaid or unclaimed as at the end of the year;
Whether there has been any default in repayment of deposits or payment of interest thereon during the year and if so, number of such cases and the total amount involved (i) at the beginning of the year (ii) maximum during the year and (iii) at the end of the year.
Details of deposits which are not in compliance with the requirements of Chapter V of the Act

6 Website address
7 Disclosures under the Sexual Harassment of Women at Workplace (Prevention, Prohibition & Redressal) Act, 2013
8 Borrowing by the company
9 Details of rent paid
10 Electricity expenses
11 Director remuneration (for each director)
12 Details of transfer of shares during the financia year
13 Break up of related party transaction (1. Name of related party and nature of relationship and 2. Duration of the agreement)

Issue of Shares with Differential Voting Rights

Issue of Shares with Differential Voting Rights

What does Issue of Shares through Differential Voting Rights means?

 

The issue of Shares with Differential Voting Rights (DVRs) means shares that give the holder differential rights as to voting (either more or less voting right) as against the Ordinary shareholders of the company.

 

As per Section 43(a)(ii) of the Companies Act, 2013, a company incorporated in India and limited by shares is permitted to have equity shares with differential voting rights as part of its share capital. The differential rights appended to such equity shares may be with respect to dividend, voting or otherwise. Such equity shares may be issued by a company as per Rule 4 of the Companies (Share Capital & Debentures) Rules, 2014 prescribed under the Companies Act, 2013. Private companies can issue shares with differential voting rights in the manner prescribed under their Articles of Association, provided the Articles exempt the applicability of the Section 43 and 47 of the Companies Act, 2013 read with rule 4 of the Companies (Share Capital & Debentures) Rules 2014.

 

Section 47 of The Companies Act, 2013, provides for every shareholder of a company to have a right to vote on every resolution presented before the company. However, in the event that the memorandum and articles of association of the company so provide, a private company may opt to not accord every member with such right to vote.

 

What are the benefits of issuing shares with differential voting rights?

 

A company may choose to issue shares with differential voting rights for obtaining investments without offering voting rights to the investor and thereby avoiding any attempts at a hostile takeover. Similarly, the promoters can get investment without diluting the control on decision making capabilities. Shares with differential voting rights are favorable to private companies which do not have abundance of dispensable funds or distributable profits and are susceptible to a hostile takeover. Issuance of shares with differential voting rights affords an opportunity to such private companies to broaden their capital base without having to lose control over or management of the company.

 

What is the Procedure for issue of issue of shares with DVR?*

 

1) No company limited by shares shall issue equity shares with differential rights as to dividend, voting or otherwise, unless it complies with the following conditions, namely:-

 

(a) the articles of association of the company should authorizes the issue of shares with differential rights;

 

(b) The Company should call board meeting and shareholders meeting for passing ordinary resolution for issue of shares with DVR;

 

Provided that where the equity shares of a company are listed on a recognized stock exchange, the issue of such shares shall be approved by the shareholders through postal ballot;

 

(c) the voting power in respect of shares with differential rights of the company shall not exceed seventy four per cent. of total voting power including voting power in respect of equity shares with differential rights issued at any point of time;

 

(d) the company has not defaulted in filing financial statements and annual returns for three financial years immediately preceding the financial year in which it is decided to issue such shares;

(e) the company has no subsisting default in the payment of a declared dividend to its shareholders or repayment of its matured deposits or redemption of its preference shares or debentures that have become due for redemption or payment of interest on such deposits or debentures or payment of dividend;

(f) the company has not defaulted in payment of the dividend on preference shares or repayment of any term loan from a public financial institution or State level financial institution or scheduled Bank that has become repayable or interest payable thereon or dues with respect to statutory payments relating to its employees to any authority or default in crediting the amount in Investor Education and Protection Fund to the Central Government;

 

Provided that a company may issue equity shares with differential rights upon expiry of five years from the end of the financial Year in which such default was made good.”]

 

(g) the company has not been penalized by Court or Tribunal during the last three years of any offence under the Reserve Bank of India Act, 1934, the Securities and Exchange Board of India Act, 1992, the Securities Contracts Regulation Act, 1956, the Foreign Exchange Management Act, 1999 or any other special Act, under which such companies being regulated by sectoral regulators.

 

(2) The explanatory statement to be annexed to the notice of the general meeting in pursuance of section 102 or of a postal ballot in pursuance of section 110 shall contain the following particulars, namely:-

 

(a) the total number of shares to be issued with differential rights;

(b) the details of the differential rights ;

(c) the percentage of the shares with differential rights to the total post issue paid up equity share capital including equity shares with differential rights issued at any point of time;

(d) the reasons or justification for the issue;

(e) the price at which such shares are proposed to be issued either at par or at premium;

(f) the basis on which the price has been arrived at;

(g) (i) in case of private placement or preferential issue-

(a) details of total number of shares proposed to be allotted to promoters, directors and key managerial personnel;

(b) details of total number of shares proposed to be allotted to persons other than promoters, directors and key managerial personnel and their relationship if any with any promoter, director or key managerial personnel;

(ii) in case of public issue – reservation, if any, for different classes of applicants including promoters, directors or key managerial personnel;

(h) the percentage of voting right which the equity share capital with differential voting right shall carry to the total voting right of the aggregate equity share capital;

(i) the scale or proportion in which the voting rights of such class or type of shares shall vary;

(j) the change in control, if any, in the company that may occur consequent to the issue of equity shares with differential voting rights;

(k) the diluted Earning Per Share pursuant to the issue of such shares, calculated in accordance with the applicable accounting standards;

(l) the pre and post issue shareholding pattern along with voting rights as per clause 35 of the listing agreement issued by Security Exchange Board of India from time to time.

 

(3) The company shall not convert its existing equity share capital with voting rights into equity share capital carrying differential voting rights and vice–versa.

 

(4) The Board of Directors shall, inter alia, disclose in the Board’s Report for the financial year in which the issue of equity shares with differential rights was completed, the following details, namely:-

 

(a) the total number of shares allotted with differential rights;

(b) the details of the differential rights relating to voting rights and dividends;

(c) the percentage of the shares with differential rights to the total post issue equity share capital with differential rights issued at any point of time and percentage of voting rights which the equity share capital with differential voting right shall carry to the total voting right of the aggregate equity share capital;

(d) the price at which such shares have been issued;

(e) the particulars of promoters, directors or key managerial personnel to whom such shares are issued;

(f) the change in control, if any, in the company consequent to the issue of equity shares with differential voting rights;

(g) the diluted Earning Per Share pursuant to the issue of each class of shares, calculated in accordance with the applicable accounting standards;

(h) the pre and post issue shareholding pattern along with voting rights in the format specified under sub-rule (2) of rule 4.

 

(5) The holders of the equity shares with differential rights shall enjoy all other rights such as bonus shares, rights shares etc., which the holders of equity shares are entitled to, subject to the differential rights with which such shares have been issued.

 

(6) In case issue of DVR affects the rights of existing class of shares then obtain consent form that class shares (3/4th) or by passing special resolution by having meeting of separate class of shares and file form MGT-14 with ROC;

 

(7) Where a company issues equity shares with differential rights, the Register of Members maintained under section 88 shall contain all the relevant particulars of the shares so issued along with details of the shareholders.

 

*The provisions of Section 43 and Section 47 of the Companies Act, 2013 shall not apply to private companies in case MOA and AOA of the company provide otherwise.

Webinar on Prevention of Sexual Harassment At Workplace

Prevention of Sexual Harassment At Workplace

When : August 23, 2019 | Timing: 4.30 p.m to 5.30 p.m.

What Will The Webinar Cover?
Not sure whether you need a POSH Policy or an Internal Complaints Committee (ICC)? Worried about a #metoo situation in your office? Join LexStart for a discussion on the key requirements under the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (POSH Law) and understand what the law actually requires.
Who Should Attend?
  • Founders, Promoters, Entrepreneurs
  • Directors
  • Investors
  • HR Personnel

 

Key Takeaways
  • Understand the law in India on Prevention of Sexual Harassment at Workplace
  • Key terms that should go into a Policy for Prevention of Sexual Harassment at Workplace
  • Constitution of Internal Complaints Committee
  • ABCs of how to respond to a #metoo situation

 

About the Speaker
Deeksha Singh is a corporate lawyer with more than a decade of experience in corporate laws. She regularly advises on laws relating to prevention of sexual  harassment at workplace. She also regularly conducts sensitization training programs for employees at companies and training programs for ICC members on how to stay compliant with POSH Law and handle complaints addressed to the ICC.

Important Update | Dematerialization of Securities Mandatory from August 1, 2019

Dematerialization of Securities Mandatory from August 1, 2019

As per a recent amendment to the Companies Act, 2013, every private limited company may have to maintain its shares in dematerialised form, w.e.f. August 01, 2019.

While a specific timeline for dematerialisation has not yet been notified, it is important that every private limited company takes steps immediately to dematerialise their securities, before making any fresh offer for issue/buyback/transfer of any securities to any investors or existing shareholders.

GOVERNMENT PROPOSES MAJOR LABOUR LAW CHANGES FOR EASE OF COMPLIANCE

PROPOSED MAJOR LABOUR LAW CHANGES FOR EASE OF COMPLIANCE

The Code on Occupational Safety, Health and Working Conditions, 2019 (“OSHW”), introduced by the Ministry of Labour and Employment introduces provisions allowing companies to have a single registration, which will be coupled with a single licence, along with a single return, for executing projects for five years involving contract workers, across the country.

An establishment will require a single registration instead of around 10 required to be done for all labour laws, a move that may help India bolster its “ease of doing business” ranking. Significantly, the Code on OSHW will cover all establishments hiring at least 10 workers, including those in services sector, thereby bringing the information technology sector within its ambit.

Employers will have to create a security deposit with the government at the time of obtaining such licence and specify the number of contract workers it might require. In case an employer wants to hire more contract workers, it will have to go back to the government to renew the licence and make an additional deposit.

In a further bid to improve ease of doing business, the Centre has proposed assigning “inspector-cum-facilitators” outside their jurisdiction “through randomised computer system”.

The provision of one licence and one return in place of multiple licences and returns in existing 13 labour laws subsumed in this Code is intended to save time, resources and efforts of businesses.

LexStart’s Upcoming Events

LexStart upcoming events on Convertible Notes, investment term sheets & Key Compliances for Stakeholders

  1. July 26, 2019: Master Class on Convertible Notes (Webinar)

Timing: 4 p.m to 5.30 p.m.

Join LexStart for a detailed analysis of Convertible Notes as instruments for fundraising. This Master Class on Convertible Notes will answer the following questions:

  • What is a Convertible Note?
  • How is it different from CCDs and CCPS?
  • How does valuation work in a Convertible Note? How do the concepts of floor and cap work?
  • Is Convertible Note the right instrument for you?

Convertible Notes are a relatively new instrument in the Indian startup ecosystem and this Master Class will help both startups and investors understand how these instruments work. Convertible Notes are a cheaper and faster route of fundraising available to registered startups and this Master Class will help startups understand how to use them.

Click here to register 

 

 

  1. July 30, 2019: Term Sheets 101 (Webinar)

Timing: 4.30 p.m to 5.30 p.m.

Join LexStart for a detailed discussion on investment term sheets, which will help you:

  • Understand fundraising jargon typically used in investment term sheets and how to negotiate them
  • Learn more about different investor rights like pre-emptive rights, tag rights, drag rights and liquidation preference typically found in investment term sheets
  • Learn more about company/promoter obligations typically included in investment term sheets

 Click here to register 

 

 

  1. July 31, 2019: Corporate Governance – Key Compliances for Stakeholders (Webinar)

Timing: 4 p.m to 5 p.m.

Join LexStart for a detailed discussion on the key compliances that stakeholders in startups should be aware of. In this session, we will cover the following:

  • Thinking of taking a Board seat? Understand the Director obligations & liabilities
  • Running a startup? Understand important corporate compliances
  • Investing in a company, or fundraising from a VC? Understand the compliances involved

Click here to register 

Mandatory POSH filing under Prevention of Sexual Harassment Act

Constitution of your Internal Committee, POSH ACT
The Government of Maharashtra has issued a letter requiring employers of workplaces in the District of Mumbai City employing 10 or more employees to report details of constitution of their Internal Committee (IC) under Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013.
The Form on Page 3 of the letter needs to be filled in and mailed by July 20, 2019, failing which a penalty of INR 50,000 will apply.
The Form and its attachments have to be sent to the address below:
1. District Collector or Deputy District Collector, Office of District collector, Old Customs House, Shahid Bhagat Singh Rd, Marg, Fort, Mumbai, Maharashtra 400001.
2. Copy to- (a)Deputy Commissioner(Women Development), Department of Development of Women and Child, Pune.
(b) Departmental Deputy Commissioner, Department of Women and Child, Konkan Division, Mumbai.
To know more contact us at [email protected]

Budget 2019

RELEVANT BUDGET HIGHLIGHTS

 

STARTUPS

  1. Tax Relief for Investors in Startups: Measures are proposed to carry forward and set off losses for startups & increase in period of exemption of capital gains from sale of residential house for investment in startups up to March 2021.
  2. Angel Tax Clarification: Startups and investors who file requisite declarations will not be subjected to any kind of scrutiny in respect of valuation of share premium. A mechanism of e-verification will be put in place and with this, the funds raised by startups will not require any angel tax scrutiny.
  3. Helping Skilled Entrepreneurs: 80 Livelihood business incubators and 20 technology business incubators to be set up in 2019-20 under ASPIRE to develop 75,000 skilled entrepreneurs in agro-rural industries.
  4. TV Channel: Finance Minister is to start a TV channel exclusively for start-ups.
  5. Social Enterprises Startups: Electronic funding platform for social enterprises is to give necessary impetus to the startups.

 

MSMEs

  1. Loan incentive to MSMEs: Government to provide INR 1 Crore loan to MSMEs.
  2. Incremental loans: In continuation to bolstering MSME sector growth, interest subvention of 2% has been announced for fresh or incremental loans.

 

TAX

  1. Angel Tax Relief for Cat II AIFs: Valuation of shares issued to Cat II AIFs shall also now be out of scrutiny of Income Tax evaluation (earlier it was only for Cat I AIF).
  2. TDS above 1 crore: The government proposes to levy TDS of 2% on cash withdrawal exceeding INR 1 Crore in a year from a bank account.
  3. Surcharge on Individuals: In view of rising income levels, a surcharge will be levied on individuals with taxable income of INR 2 to 5 Crore, and INR 5 Crore and above.
  4. Corporate Tax Rate: Lower rate of 25% corporate tax rate shall now be applicable to companies with a turnover of up to INR 400 Crore (increased from previous threshold of INR 250 Crore).

 

OTHERS

  1. PAN and AADHAR to be interchangeable: PAN and Aadhar to be interchangeable; now Aadhar can be quoted instead of PAN, wherever PAN is required. It is ok to not have a PAN.
  2. Labour Laws: Proposal to streamline multiple labour laws into a set of ‘four labour codes’.
  3. Rental Housing: Current archaic rental laws to be updated to assess relation between lessor and lessee in a fair manner.
  4. Annual Global Meet: The Government is contemplating organising an annual global meet to get all three sets of global players: Industrialists, corporate leaders, corporate sovereign and venture funds.
  5. Platform to Raise Capital: The Government proposes to work on a platform for listing social enterprises and voluntary organisations to raise capital as equity, debt or units like mutual fund.