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1 Dr. L.B. Singhal Director General EXPORT PROMOTION COUNCIL FOR EOUs & SEZs Ministry of Commerce & Industry, Govt. of India 705, Bhikaji Cama Bhawan, Bhikaji Cama Place, New Delhi Tel : , , Fax: , epces@vsnl.net EPCES CIRCULAR NO. 117 DATED TO : ALL EPCES MEMBERS Sub : Direct Tax Code Bill, 2010 introduced in the Parliament Hon ble Finance Minister has introduced Direct Tax Code Bill, 2010 in the Parliament. This Bill is certainly an improvement over earlier draft Bill, as far as SEZs are concerned. It may please be recalled that Ministry of Finance had released draft Direct Tax Code (DTC) along with discussion paper in August These documents had provided grandfathering provision for SEZ developers under Section 282 (2)(n) of the Direct Tax Code Bill, However, no grandfathering provision was provided for SEZ units. EPCES had represented strongly and had sent representations to Hon ble Prime Minister, Hon ble Finance Minister, Hon ble Commerce & Industry Minister, Cabinet Secretary, Commerce Secretary, Revenue Secretary, Chairman CBDT and other senior officers and had a meeting with Commerce & Industry Minister, Secretary Commerce, Revenue Secretary, Chairman CBDT and other senior officers of Ministry of Finance. Then Ministry of Finance released the revised discussion paper on Direct Tax Code in June In this revised paper, grandfathering was promised for existing SEZ units. We had meetings with Hon ble Finance Minister, Hon ble Commerce & Industry Minister, Secretary Commerce, Secretary Revenue, Additional Secretary, Department of Commerce, Chairman CBDT and other senior officers and emphasized that benefits must be continued for the new units as well. Now the Direct Tax Code Bill, 2010, has provided benefits for the new units as well. The main features, relating to SEZ Scheme, in this Bill, are as follows:- 1. Now DTC will be implemented from 1 st April, Earlier it was proposed to be implemented from Deduction available to SEZ developers, under Section 80IAB of the Income Tax Act at present, shall continue to be allowed under this Code, in respect of SEZ notified on or before 31 st day of March, Section 318 (2)(p) of the Code provides as follows:- (p) the deduction under section 80-IAB of the repealed Income-tax Act shall continue to be allowed under this Code, if the assessee, being a developer engaged in the business of developing, operating and maintaining a Special Economic Zone notified on or before 31st day of March, 2012 under the Special Economic Zones Act, 2005, subject to the conditions (i) that the amount of profits eligible for deduction under the provisions of the aforesaid section are calculated in accordance with the provisions of this Code other than the provisions in clauses (d) and (e) of paragraph (4) of the Twelfth Schedule relating to capital expenditure;

2 (ii) that the period for which the deduction is allowed under the provisions of the aforesaid section shall not include a period for which the deduction was otherwise not allowable under the repealed Income-tax Act; (iii) that the amount related to capital expenditure if any excluded in (i) above shall not be allowed as deduction under this Code in computing the gross total income; and (iv) that the assessee otherwise continues to satisfy the conditions as specified in the respective section in the financial year; 3. For the first time in the Direct Tax Code, a provision has been made for continuation of the benefits for the SEZ units. Section 318(2)(r) provides that the deduction under Section 10AA shall continue to be allowed under this Code, in respect of SEZ units which begins to manufacture or produce articles or things or provides any service in the unit in the SEZ on or before 31 st Day of March, This section provides as follows:- (r) the deduction under section 10AA of the repealed Income-tax Act shall continue to be allowed under this Code, if the assessee, being an entrepreneur as referred to in clause (j) of section 2 of the Special Economic Zones Act, 2005, begins to manufacture or produce articles or things or provide any service in the unit in the Special Economic Zone on or before the 31st day of March, 2014, subject to the conditions (i) that the amount of profits eligible for deduction under the provisions of the aforesaid section are calculated in accordance with the provisions of this Code other than the provisions in clauses (d) and (e) of paragraph (4) of the Twelfth Schedule relating to capital expenditure; (ii) that the period for which the deduction is allowed under the provisions of the aforesaid section shall not include a period for which the deduction was otherwise not allowable under the repealed Income-tax Act; (iii) the amount related to capital expenditure if any excluded in (i) above shall not be allowed as deduction under this Code in computing the gross total income; and (iv) that the assessee otherwise continue to satisfy the conditions as specified in the respective section in the financial year; 4. In respect of SEZs which are notified after 31 st March, 2012, investment link incentives have been provided. This means that such developers would be allowed to recover all capital and revenue expenditure (except expenditure on land, goodwill and financial instrument) and he would be liable to income on profits made thereafter. Now, this facility has been extended to SEZ units as well. Accordingly SEZ units which are set up after March 2014 would be entitled for investment link incentives, which were earlier proposed to be available only to the SEZ developers. For providing these benefits following provisions have been made in the DTC Bill:- i) Section 32(2) provides a table in respect of certain specified categories where the above stated benefits will be available. This table provides this facility for the business of developing of a SEZ as well as business specified in paragraph 1 of Twelfth Schedule. This section is reproduced as follows:- 32. (1) The income computed under the head Income from business shall be the profits from the business. (2) The profits from the business of the nature specified in column (2) of the Table given below shall be computed in accordance with the provisions contained in the Schedule specified in the corresponding entry in column (3) of the said Table.

3 TABLE Sl. Nature of Business Schedule No. (1) (2) (3) 1. Business of Insurance Eight Schedule 2. Business of operating a qualifying ship Tenth Schedule 3. Business of mineral oil or natural gas Eleventh Schedule 4. Business of developing of a Special Economic Zone Twelfth Schedule *Business specified in Paragraph 1 of the Twelfth Schedule 5. Business specified in Paragraph 1 of the Thirteenth Schedule Thirteenth Schedule 6 Business listed in column (2) of the Table in the Fourteenth Schedule Fourteenth Schedule where income is determined on presumptive basis (3) The profits from any business not referred to in sub-section (2) shall be the gross earnings from the business as reduced by the amount of business expenditure incurred by the assessee. * This is a new addition and this provision was not there in earlier draft bills. ii) Paragraph 1 of the Twelfth Schedule now provides as follows:- 1. The provision of this Schedule shall apply to the business specified herein below:- (a) The business of developing a special economic zone; and (b) A unit established in a special economic zone engaged in the business of manufacture or production of article or things or providing of any service. Clause 1(b) has been added in this Code and this was not there in earlier drafts. Hence, now for the SEZ units which comes up after 2014, investment link benefits have been provided, which was there earlier only for the SEZ developers. A copy of 12 th Schedule is enclosed along with. 5. We are grateful to Hon ble Finance Minister, Hon ble Commerce & Industry Minister, Dr. Rahul Khullar, Secretary Commerce, Mr. D.K. Mittal, Additional Secretary, Department of Commerce, Secretary Revenue and other senior officers for their efforts. 6. However, these provisions do not meet the requirement of the SEZ Scheme fully in view of the following:- i) In the first place, SEZ Act should not have been altered by DTC Bill. ii) Grandfathering of the benefits in respect of SEZ developers and SEZ units have not been completely carried out in the DTC Bill. Under the present Income Tax Act, SEZ Developers are entitled for the benefit of exemption from income tax under Section 80IAB, exemption from Minimum Alternate Tax under Section 115JB of the Income Tax Act and exemption from Dividend Distribution Tax under Section 115-O of the Income Tax Act. SEZ Units are entitled for exemption from income tax under Section 10AA of the IT Act, exemption from Minimum Alternate Tax under Section 115JB of the IT Act. However, section 318 of the DTC Bill provides continuation of the benefits only under Section 80IAB for

4 iii) the developers and Section 10AA for the SEZ units. It does not provide continuation of the benefits for MAT and DDT. Accordingly, MAT and DDT has been made applicable on the SEZ developers and MAT on SEZ units. This would affect investment in the SEZ severely. MAT would be levied Section 106 of DTC Bill provides that MAT credit can be carried forward till 15 th financial year. Time period provided for the new unit is insufficient. SEZs which are notified till March, 2012 have been provided continuation of IT benefits under Section 80IAB and those SEZ units which comes up in next 2 years, have been given IT benefits under Section 10AA. As per provisions of SEZ Rules, SEZ developers are given time of 3 years, which can be extended further, for development of SEZ itself. Naturally SEZ units would be coming after this period. Hence this time period needs to be extended further. 7. Now the following actions would be taken:- a) EPCES would be sending representations to all concerned on above lines. b) I understand that DTC Bill will be referred to one of the Committees of the Parliament. We would be seeking time from this Hon ble Committee for making a presentation before this Committee. c) We would find out the composition of this Committee and circulate the names of the MPs who are the members of this Committee to all of you. You should meet Hon ble MPs of this Committee, who is from your area, should take him around to your SEZ, show the benefits which your SEZ would be bringing for the development and employment in your area and should present the case before him so that he could accordingly take it up in the Committee. d) You should all represent individually and collectively to all concerned authorities as well as to your State Government on the above stated issues. e) We would be convening a meeting of EPCES SEZ Developers Panel shortly. SEZ Scheme offers tremendous opportunity for increasing employment, increasing exports & investment in the country. We will make our best efforts to take this forward. This is for your information. PN : All EPCES Circulars, issued during the last 7 years, have been placed on the website & Hence for making a reference to any earlier EPCES Circular you can access the above stated website. To access EPCES Circulars, click on to EPCES logo on the homepage and then click on EPCES Circulars.

5 THE TWELFTH SCHEDULE [See sections 32(2) 44(8) and 318(2)(P) (i)] COMPUTATION OF PROFITS OF THE BUSINESS OF DEVELOPING OF A SPECIAL ECONOMIC ZONE MANUFACTURE OR PRODUCTION OF ARTICLE OR THINGS OR PROVIDING OF ANY SERVICE BY A UNIT ESTABLISHED IN A SPECIAL ECONOMIC ZONE 1. The provisions of this Schedule shall apply to the business specified herein below (a) the business of developing a special economic zone; and (b) a unit established in a special economic zone engaged in the business of manufacture or production of article or things or providing of any service. 2. The profits of the specified business under paragraph 1 shall be the gross income from such business carried on by the assessee at any time during the financial year as reduced by the amount of business expenditure incurred by the assessee, wholly and exclusively, for the purposes of the business during the year. 3. The gross income referred to in paragraph 2 shall be the aggregate of (a) the accruals or receipts derived by the assessee from the specified business; (b) the accruals or receipts derived by the assessee from the demolition, destruction, discarding or transferring of any business capital asset (other than land, goodwill or financial instrument) in respect of which deduction has been allowed, or allowable, under paragraph 4 in any financial year; and (c) the amounts referred to in sub-section (2) of section The amount of business expenditure referred to in paragraph 2 shall be the aggregate of the amount of (a) operating expenditure referred to in section 35, incurred by the assessee; (b) finance charges referred to in section 36, incurred by the assessee; (c) expenditure on any licence charges, rental fees or other charges, if actually paid; (d) capital expenditure incurred by the assessee; (e) expenditure referred to in clauses (a) to (d) incurred before the commencement of specified business. 5. The profits computed under paragraph 2 shall be presumed to have been computed (a) after giving full effect to every loss, allowance or deduction referred to in sub-sections (1) to (3) of section 35, sub-section (1) of section 36 and sections 37 to 40 (both inclusive); (b) after giving full effect to any deduction allowable under Sub-Chapter-IV of Chapter III in relation to the profits of the specified business. 6. The written down value of any business asset used in the specified business shall be computed as if the assessee has claimed and has been actually allowed the deduction in respect of depreciation under section 38, initial depreciation under section 39 and terminal allowance under section The amount of common costs (including depreciation) attributable to the specified business shall be determined in such manner as may be prescribed. 8. The provisions of this Schedule shall apply to a specified business, which fulfils the following conditions, namely: (a) it is not set-up by splitting up, or the reconstruction, of a business already in existence; and (b) it is not set-up by the transfer to the specified business, of machinery or plant previously used for any purpose. 9. In this Schedule, unless the context otherwise requires, (a) any machinery or plant which was used outside India by any person other than the assessee shall not be regarded as machinery or plant previously used for any purpose, if (i) the machinery or plant was not, at any time prior to the date of the installation by the assessee, used in India; (ii) the machinery or plant is imported into India from any country outside India; and (iii) no deduction on account of depreciation in respect of the machinery or plant has been allowed or is allowable under the provisions of this Code, or the Income-tax Act, 1961 as it stood before

6 the commencement of this Code, in computing the total income of any person for any period prior to the date of the installation of the machinery or plant by the assessee; (b) the condition specified in clause (b) of paragraph 8 shall be deemed to have been complied with if the total value of the machinery or plant or any part thereof, previously used for any purpose and transferred to the specified business does not exceed twenty per cent. of the total value of the machinery or plant used in the said business; (c) the capital expenditure referred to in clause (d) of paragraph 4 shall not include any expenditure incurred on the acquisition of any land including long term lease, goodwill or financial instrument.

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