An optional scheme for Levy of Tax and Penalty on Amount Deposited in the Bank Account which was undisclosed / unexplained

[CA Surender Gupta]

The Finance Minister has introduced in the Loksabha THE TAXATION LAWS (SECOND AMENDMENT) BILL, 2016 as on 28-11-2016  to plug these loopholes as early as possible so as to prevent the misuse of the provisions of the Income Tax Act. The Taxation Laws (Second Amendment) Bill, 2016, proposes to make some changes in the Income Tax Act to ensure that defaulting assessees are subjected to tax at a higher rate and stringent penalty provision.

Accordingly various options / circumstances are emerging and it is for the assessee to choose the one which he thinks better for him, or may wait for the worst to come, if any, in the future.

Here we are discussion, a new scheme that is proposed to be called as: the Taxation and Investment Regime for Pradhan Mantri Garib Kalyan Yojana, 2016.

As per this scheme:

Filing of Declaring

1. Assessee has to file a declaration of income – Form and procedure to be notified

Tax liability

The amount of Tax and penalty shall be:

• 30% as tax of Declared income
• 33% as Surcharge of the tax on the Declared income as above
• 10% as penalty of Declared income
• Thus, total amount payable is around 50% of the Declared income

1. Tax, Surcharge and penalty, as above, shall be payable before filing of declaring
2. The so paid, shall not be refundable

Deposit into the Scheme

1. 25% of the declared income shall be deposited in the Pradhan Mantri Garib Kalyan Deposit Scheme, 2016
2. Lock in period of the above deposit will be 4 years.
3. Such scheme shall carry no Interest
4. The amount can be withdrawn from the scheme after 4 years subject to such conditions as may be specified.

Declaration shall be Void

1. Any wrong declaration shall be void
2. Where assessee fails to pay the amount / deposit the amount as above, before filing of the the declaration, the declaration shall be void

Application of Income Tax Act, 1961

1. No tax under the provisions of Income Tax Act, 1961 shall not be payable
2. No expenditure or allowances shall be deducted from the income so declared

The following provision of Income Tax Act, 1961 shall be applicable:

• Chapter XV - Liability in Special Cases
• section 119 - Instructions to subordinate authorities
• section 138 - Disclosure of information respecting assessees
• section 189 - Firm dissolved or business discontinued

Offence, Prosecution & Immunity

1. The scope of immunity is very much limited to income tax only.

The Scheme is not applicable in relation to:

1. Order of Detention has been made under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974
2. Prosecution for any offence punishable under Chapter IX or Chapter XVII of the Indian Penal Code, the Narcotic Drugs and Psychotropic Substances Act, 1985 (61 of 1985), the Unlawful Activities (Prevention) Act, 1967(37 of 1967), the Prevention of Corruption Act, 1988 (49 of 1988), the Prohibition of Benami Property Transactions Act, 1988 (45 of 1988) and the Prevention of Money-Laundering Act, 2002 (15 of 2003);
3. to any person notified under section 3 of the Special Court (Trial of Offences Relating to Transactions in Securities) Act, 1992(27 of 1992);
4. any undisclosed foreign income and asset which is chargeable to tax under the Black Money (Undisclosed Foreign Income and Assets) and Imposition of Tax Act, 2015 (22 of 2015).