The possible implementation in 2012 of the Direct Taxes Code (DTC), a goods and services tax (GST), and increasing tax authority aggression are the primary issues of concern for taxpayers. "At a tax policy level, [the government is] going through a start-stop ...
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The possible implementation in 2012 of the Direct Taxes Code (DTC), a goods and services tax (GST), and increasing tax authority aggression are the primary issues of concern for taxpayers. "At a tax policy level, [the government is] going through a start-stop sequence on GST and on the DTC. This has consumed a significant amount of attention with corporations and taxpayers in India," said Srinivasa Rao of Ernst & Young.
The government announced in August 2010 that the implementation of the DTC is to be postponed once again until April 1 2012. The final draft of the new DTC was introduced in Parliament on August 31 2010.
Opinion is divided in the tax community on the future of the DTC.
"The fate of the DTC seems to be in limbo. Whether it will see the light of day is questionable," said Vispi Patel of Vispi T Patel & Associates.
"I think the DTC will see the light of day, but I'm not sure if we will see it next year like promised," commented Pallavi Dinodia of SR Dinodia & Co.
One adviser believes it will come in next year.
"The DTC it appears is on track for April next year," said a tax partner. "One of the reasons I say this with some tone of certainty is that the finance minister mentioned it in the [OECD meeting in New Delhi in June]."
The first version of the DTC, which was released in August 2009, drew much criticism from taxpayers. Included was a proposal that allowed the government to override existing international tax treaties. If a conflict was to arise between the DTC and the tax treaty, the DTC would prevail.
Also included in the first version was the introduction of general anti-avoidance rules (GAAR) and a proposal to shift the basis for the levy of the minimum alternate tax from book profits to gross assets. Many in the tax community complained that the tax has no correlation to income.
Not everything in the DTC has been criticised. Taxpayers have welcomed the proposed introduction of advance pricing agreements.
India is set to make its mark in tax, with an updated set of tax laws months away from implementation. However, the government's slow pace of addressing issues and the complicated tax system is hindering India's progress.
Many taxpayers are making adjustments to their tax planning strategies, while others are waiting for the issuance of clearer documentation. "The DTC will change the way we do business in India, and brings a lot of challenges to the clients," said M Lakshminarayanan of Deloitte.
Meanwhile, the Authority for Advance Rulings (AAR) is becoming more popular among non-resident taxpayers who want to plan their tax affairs well in advance to avoid litigation issues in light of the expected changes ahead.
New indirect tax rules
The second issue of concern to taxpayers has been the delay to the implementation of the GST. "There was no political consensus on GST so it has been pushed to April 2012. I'm not sure if it will be implemented," said Lakshminarayanan.
Pranab Mukherjee, India's finance minister, announced in February 2010 that he has set his sights on April 2012 for the implementation of the country's GST.
Despite the announcement, there are still doubts among professionals over the likelihood of the GST being introduced in April, as some states are unwilling to reduce their fiscal autonomy to allow the tax to be implemented.
Adding to the woes of taxpayers, Sumit Majmudar, the chairman of the Central Board of Excise and Customs, announced in July that he expects the GST to be delayed further still until June 2012, due to further disagreement between central and state governments on how to implement the tax.
However, the appointment of Bihar deputy chief minister Sushil Modi as new chairman of the Empowered Committee of State Finance Ministers in July 2011 has given the GST plans a boost.
Aggressive officials
In addition to the disagreements and delays over the DTC and GST, the increasing aggression on the part of the tax authorities is doing little to enhance taxpayer confidence. The last 12 months saw an increase in the volume and ferocity of tax litigation. Though this is not a new trend, it is one that has intensified.
"The courts have taken an intense and keen interest in the problem of unaccounted money, especially after the 2G telecom scam," said a tax partner.
"The tax authorities are more knowledgeable, have more wealth of resources, and more access to tax practices of countries around the world," said Surin Kapadia of GM Kapadia & Co.
"We are seeing a far higher degree of aggressiveness from the tax authorities," said Gokul Chaudhri of BMR Advisors – Taxand. "There are more audits and they are more rigorous. This was compounded by the fact that the tax department views its success in the Vodafone case as a key milestone. This confidence gets translated into their approach and behaviour with a lot of tax audit issues."
The implementation of the DTC, a GST and the changing attitudes of tax authorities is set to greatly shift India's tax and regulatory landscape. Only time will tell if the new tax regime and administration will provide greater clarity for taxpayers and increase efficiency for businesses in India.
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