Proposed amendment of Section 9A relating to exempted activities from scope of business connection in India. Analysis of proposal and effect of amendment in section.

[DEVKUMAR KOTHARI]

Analysis  of  section 9A as it will stand after proposed amendment and proposal is made in this write-up. The amendment will be we.f. 1^st April, 2025.

For easy understanding and analysis, proposed amendment is inserted and marked red.

Other related provisions are marked in green colour. They can be easily referred on this website by clicking the link.

As per proposal, conditions, which can be relaxed or modified etc. by the Central Government are indicated in italic fonts in  existing sub-sections (3) and (4).

Amendment seeks to remove  difficulties which arises in course of operations whereby for some reasons sometimes investment by resident persons may exceed 5%. To remove difficulties two cut off dates have been fixed i.e. as on 1^st April and as on 1^st October. Relaxation is allowed if the investment by Indian residents is brought within limit of 5% within four months from the cut off dates i.e. by 31^st July and 31^st January.  

Extension is also proposed from 31^st March 2025 to 31^st March 2030 for commencement of operations by the Fund. This is off course a new trend indicating long term policies. Earlier we found that in many such provisions extension was allowed for one year and every year amendment was required.

Section as it will read after amendment is reproduced with highlights by way of underlining, italic word.

Income-tax Act, 1961

Certain activities not to constitute business connection in India

Certain activities not to constitute business connection in India

 9A. (1) Notwithstanding anything contained in sub-section (1) of section 9 and subject to the provisions of this section, in the case of an eligible investment fund, the fund management activity carried out through an eligible fund manager acting on behalf of such fund shall not constitute business connection in India of the said fund.

(2) Notwithstanding anything contained in section 6, an eligible investment fund shall not be said to be resident in India for the purpose of that section merely because the eligible fund manager, undertaking fund management activities on its behalf, is situated in India.

(3) The eligible investment fund referred to in sub-section (1), means a fund established or incorporated or registered outside India, which collects funds from its members for investing it for their benefit and fulfils the following conditions, namely:-

(a) the fund is not a person resident in India;

(b) the fund is a resident of a country or a specified territory with which an agreement referred to in sub-section (1) of section 90 or sub-section (1) of section 90A has been entered into ²[or is established or incorporated or registered in a country or a specified territory notified by the Central Government in this behalf ];

(c) the aggregate participation or investment in the fund, directly or indirectly, by persons resident in India does not exceed five per cent. of the corpus of the fund as on the first day of April and the first day of October of the previous year

Provided that for the purposes of calculation of the said aggregate participation or investment in the fund, any contribution made by the eligible fund manager during the first three years of operation of the fund, not exceeding twenty-five crore rupees, shall not be taken into account;

Provided further that where the said aggregate participation or investment in the fund exceeds five per cent. on the first day of April or the first day of October of the previous year, the condition mentioned in this clause shall be deemed to be satisfied, if it is satisfied within four months of the first day of April or the first day of October of such previous year, as the case may be

(d) the fund and its activities are subject to applicable investor protection regulations in the country or specified territory where it is established or incorporated or is a resident;

(e) the fund has a minimum of twenty-five members who are, directly or indirectly, not connected persons;

(f) any member of the fund along with connected persons shall not have any participation interest, directly or indirectly, in the fund exceeding ten per cent.;

(g) the aggregate participation interest, directly or indirectly, of ten or less members along with their connected persons in the fund, shall be less than fifty per cent.;

(h) the fund shall not invest more than twenty per cent. of its corpus in any entity;

(i) the fund shall not make any investment in its associate entity;

(j) the monthly average of the corpus of the fund shall not be less than one hundred crore rupees:

Provided that if the fund has been established or incorporated in the previous year, the corpus of fund shall not be less than one hundred crore rupees ⁵[at the end of a period of twelve months from the last day of the month of its establishment or incorporation;

[Provided further that nothing contained in this clause shall apply to a fund which has been wound up in the previous year; ]

(k) the fund shall not carry on or control and manage, directly or indirectly, any business in India ;

(l) the fund is neither engaged in any activity which constitutes a business connection in India nor has any person acting on its behalf whose activities constitute a business connection in India other than the activities undertaken by the eligible fund manager on its behalf;

(m) the remuneration paid by the fund to an eligible fund manager in respect of fund management activity undertaken by him on its behalf is not less than ⁶[the amount calculated in such manner as may be prescribed]:

Provided that the conditions specified in clauses (e), (f) and (g) shall not apply in case of an investment fund set up by the Government or the Central Bank of a foreign State or a sovereign fund, or such other fund as the Central Government may subject to conditions if any, by notification in the Official Gazette, specify in this behalf.

(4) The eligible fund manager, in respect of an eligible investment fund, means any person who is engaged in the activity of fund management and fulfils the following conditions, namely:-

(a) the person is not an employee of the eligible investment fund or a connected person of the fund;

(b) the person is registered as a fund manager or an investment advisor in accordance with the specified regulations;

(c) the person is acting in the ordinary course of his business as a fund manager;

(d) the person along with his connected persons shall not be entitled, directly or indirectly, to more than twenty per cent. of the profits accruing or arising to the eligible investment fund from the transactions carried out by the fund through the fund manager.

(5) Every eligible investment fund shall, in respect of its activities in a financial year, furnish within ninety days from the end of the financial year, a statement in the prescribed form, to the prescribed income-tax authority containing information relating to the fulfilment of the conditions specified in this section and also provide such other relevant information or documents as may be prescribed.

(6) Nothing contained in this section shall apply to exclude any income from the total income of the eligible investment fund, which would have been so included irrespective of whether the activity of the eligible fund manager constituted the business connection in India of such fund or not.

(7) Nothing contained in this section shall have any effect on the scope of total income or determination of total income in the case of the eligible fund manager.

(8) The provisions of this section shall be applied in accordance with such guidelines and in such manner as the Board may prescribe in this behalf.

(8A) The Central Government may, by notification in the Official Gazette, specify that any one or more of the conditions specified in clauses (a) to (m) [other than clause (c)] of sub-section (3) or clauses (a) to (d) of sub-section (4) shall not apply or shall apply with such modifications, as may be specified in such notification, in case of an eligible investment fund and its eligible fund manager, if such fund manager is located in an International Financial Services Centre, as defined in clause (a) of the Explanation to section 80LA, and has commenced its operations on or before the 31st day of March, 2030.

(9) For the purposes of this section,-

(a) “associate” means an entity in which a director or a trustee or a partner or a member or a fund manager of the investment fund or a director or a trustee or a partner or a member of the fund manager of such fund, holds, either individually or collectively, share or interest, being more than fifteen per cent. of its share capital or interest, as the case may be;

(b) “connected person” shall have the meaning assigned to it in clause (4) of section 102;

(c) “corpus” means the total amount of funds raised for the purpose of investment by the eligible investment fund as on a particular date;

(d) “entity” means any entity in which an eligible investment fund makes an investment;

(e) “specified regulations” means the Securities and Exchange Board of India (Portfolio Managers) Regulations, 1993 or the Securities and Exchange Board of India (Investment Advisers) Regulations, 2013, or such other regulations made under the Securities and Exchange Board of India Act, 1992 (15 of 1992), which may be notified by the Central Government under this clause.]

 

Proposal in the Finance Bill,2025

Amendment of section 9A.

Finance Bill, 2025

Amendment of section 9A.

5. In section 9A of the Income-tax Act,––

(a) in sub-section (3), in clause (c),––

(i) after the words “the corpus of the fund”, the words, figures and letters “as on the first day of April and the first day of October of the previous year” shall be inserted;

(ii) after the proviso, the following proviso shall be inserted, namely:––

“Provided further that where the said aggregate participation or investment in the fund exceeds five per cent. on the first day of April or the first day of October of the previous year, the condition mentioned in this clause shall be deemed to be satisfied, if it is satisfied within four months of the first day of April or the first day of October of such previous year, as the case may be;”;

(b) in sub-section (8A),––

(i) after the words, brackets and letters “in clauses (a) to (m)”, the brackets, words and letter “[other than clause (c)]” shall be inserted;

(ii) for the figures “2024”, the figures “2030” shall be substituted.

Notes/ explanation on proposals:

Clause 5 of the Bill seeks to amend section 9A of the Income-tax Act relating to certain activities not to constitute business connection in India.

Clause (c) of sub-section  (3) of the said section, inter alia, provides that the eligible investment fund referred to in sub-section (1), means a fund established or incorporated or registered outside India, which collects funds from its members for investing it for their benefit and fulfils the condition that the aggregate participation or investment in the fund, directly or indirectly, by persons resident in India does not exceed five per cent. of the corpus of the fund.

It is proposed to amend the said clause so as to provide that the aggregate participation or investment in the fund, directly or indirectly, by persons resident in India does not exceed five per cent of the corpus of the fund, as on the 1st day of April and the 1st day of October of the previous year.

It is further proposed to insert a proviso to said clause so as to provide that where the aforesaid aggregate participation or investment in the fund exceeds five per cent on the 1st day of April or the 1st day of October of the previous year, the condition mentioned in this clause shall be deemed to be satisfied, if it is satisfied, within four months of the 1st day of April or the 1st day of October of such previous year, as the case may be.

Sub-section (8A) of the said section provides that the Central Government may, by notification, specify that any one or more of the conditions specified in clauses (a) to (m) of sub-section (3) or clauses (a) to (d) of sub-section (4) shall not apply or shall apply with such modifications, as may be specified in such notification, in case of an eligible investment fund and its eligible fund manager, if such fund manager is located in an International Financial Services Centre, and has commenced its operations on or before 31st March, 2024.

It is proposed to amend sub-section (8A) of the said section so as to extend the date of commencement of operations from 31st day of March, 2024 to 31st day of March, 2030.

It is further proposed to amend the said sub-section to provide that the Central Government may not relax condition in clause (c) of sub-section (3).

These amendments will take effect from 1st April, 2025.