Comprehensive framework for dealing with transactions with any notified jurisdictional areas : Clause 176 of the Income Tax Bill, 2025 Vs. Section 94A of the Income Tax Act, 1961

Clause 176 Special measures in respect of transactions with persons located in notified jurisdictional area.

Income Tax Bill, 2025

Introduction

Clause 176 of the Income Tax Bill, 2025 introduces a comprehensive framework for dealing with transactions involving persons located in "notified jurisdictional areas" (NJAs)-essentially, jurisdictions with which India does not have effective exchange of tax information. This provision is a legislative response to the challenge of tax avoidance and evasion through opaque jurisdictions, often referred to as tax havens. The Clause closely mirrors the existing Section 94A of the Income Tax Act, 1961, which was enacted as part of the global push for transparency and information exchange in tax matters. Rule 21AC of the Income-tax Rules, 1962 operationalizes Section 94A by prescribing procedural requirements and documentation.

This commentary provides a detailed clause-by-clause analysis of Clause 176, explores its objectives and implications, and undertakes a comparative review vis-`a-vis Section 94A and Rule 21AC. The discussion is structured to highlight statutory evolution, practical impact, and interpretative concerns, with particular attention to the nuanced legal and compliance landscape confronting taxpayers and tax authorities.

Objective and Purpose

The legislative intent behind both Clause 176 and Section 94A is to deter the use of jurisdictions that do not cooperate with Indian tax authorities in sharing information, thereby curbing tax avoidance and evasion. The provisions are designed to:

• Impose stricter tax and compliance requirements on transactions involving NJAs;

• Ensure that payments to entities in NJAs are subject to heightened scrutiny and withholding tax;

• Deem certain transactions as "international transactions" for transfer pricing purposes, regardless of their actual nature;

• Enable the tax authorities to treat unexplained receipts from NJAs as income of the assessee;

• Mandate rigorous documentation and disclosure obligations.

These measures are rooted in the global movement for transparency, particularly following the OECD's Base Erosion and Profit Shifting (BEPS) initiative and FATF recommendations on combating money laundering and tax evasion.

Detailed Analysis of Clause 176 of the Income Tax Bill, 2025

(1) Power to Notify Jurisdictional Areas

Clause 176(1) empowers the Central Government to specify, by notification, any country or territory as a notified jurisdictional area, based on the absence of effective information exchange mechanisms. This is a foundational step, as the application of the rest of the clause hinges on such notification. The discretion is broad, but it must be exercised having regard to international cooperation and transparency standards.

This mirrors Section 94A(1), which similarly vests notification power in the Central Government, with the same criterion of lack of effective information exchange.

(2) Deeming Provisions-Associated Enterprises and International Transactions

Clause 176(2) introduces two key deeming fictions:

1. All parties to a transaction involving a person in an NJA are deemed to be associated enterprises u/s 162;

2. Any transaction described in Section 163(1) or (2) is deemed to be an international transaction u/s 163.

This deeming fiction triggers the application of transfer pricing provisions (Sections 161, 162, 163, 165 except 165(3)(a)(ii), 166, 167, 171, 172, and 173) to such transactions, regardless of whether they would otherwise qualify as international transactions or associated enterprises.

This is almost identical to Section 94A(2), which deems such parties to be associated enterprises u/s 92A and transactions as international transactions u/s 92B, thereby bringing them within the transfer pricing regime (Sections 92, 92A, 92B, 92C, 92CA, 92CB, 92D, 92E, and 92F).

The policy rationale is to prevent taxpayers from structuring transactions with NJA entities to escape transfer pricing scrutiny, which relies on the existence of associated enterprise relationships and international transactions.

(3) Disallowance of Deductions

Clause 176(3) prohibits deductions for:

1. Payments to financial institutions in NJAs unless the assessee provides an authorization (in the prescribed form) for Indian tax authorities to seek information from the institution;

2. Any other expenditure or allowance (including depreciation) arising from transactions with NJA persons, unless prescribed documentation and information are maintained and furnished.

This provision is designed to prevent taxpayers from claiming deductions for payments that cannot be verified due to non-cooperation from the NJA, thereby closing a major loophole for profit shifting and base erosion.

Section 94A(3) is virtually identical, with the same two-pronged approach to disallowance, contingent upon the furnishing of authorization and prescribed documentation.

Rule 21AC operationalizes this by prescribing Form 10FC for authorization, specifying how and to whom it must be submitted, and detailing the nature of documents to be maintained.

(4) Unexplained Receipts from NJAs

Clause 176(4) provides that if an assessee receives or credits any sum from an NJA person and either fails to explain the source of the sum (in the hands of the person or the beneficial owner) or the explanation is unsatisfactory to the Assessing Officer, the sum shall be deemed to be the income of the assessee for that tax year.

This is a powerful anti-abuse provision that reverses the burden of proof and is aimed at combating money laundering and round-tripping through NJAs. Section 94A(4) is functionally identical, using the same deeming language.

(5) Higher Withholding Tax Rates

Clause 176(5) mandates that where a person in an NJA is entitled to receive any sum on which tax is deductible under Chapter XIX-B, tax must be withheld at the highest of:

• the rate or rates in force;

• the rate specified in the relevant provision;

• 30%.

This ensures that payments to NJA entities are subject to a punitive withholding tax, discouraging such transactions and compensating for the lack of transparency.

Section 94A(5) is identical in both language and effect, with the only difference being the reference to Chapter XVII-B (the corresponding chapter in the 1961 Act).

(6) Definitions

Clause 176(6) defines "person located in a notified jurisdictional area" to include:

• a resident of the NJA;

• a non-individual established in the NJA;

• a permanent establishment in the NJA of a non-NJA person.

It also cross-references the definitions of "permanent establishment" and "transaction" to other sections of the Bill.

Section 94A(6) uses the same language and structure, referring to Section 92F for definitions. The definitions are broad and designed to prevent taxpayers from circumventing the law through indirect structures.

Practical Implications

For Taxpayers

• Increased Compliance Burden: Taxpayers dealing with NJA entities must maintain extensive documentation (as per Rule 21AC), furnish authorizations, and be prepared for rigorous scrutiny.

• Denial of Deductions: Failure to comply with documentation or authorization requirements results in the denial of deductions for payments and expenses, increasing the effective tax cost of such transactions.

• Higher Withholding Tax: Payments to NJA entities attract TDS at punitive rates, affecting cash flows and potentially deterring legitimate business.

• Risk of Deemed Income: Unexplained receipts from NJAs are automatically taxed as income, with the burden on the taxpayer to prove the source.

For Tax Administration

• Enhanced Enforcement Powers: The provisions empower tax authorities to demand information, deny deductions, and tax unexplained receipts, reducing the risk of abuse.

• Administrative Challenges: The effectiveness of these provisions depends on the ability to obtain information from foreign institutions, which may still be limited by the cooperation of the NJA.

For International Relations

• Diplomatic Leverage: The threat of being notified as a NJA incentivizes jurisdictions to cooperate with India on information exchange (as seen in the Cyprus case).

• Potential for Dispute: Unilateral notifications may strain diplomatic relations, as evidenced by the press release from the Cyprus Ministry of Finance (Document 6).

For Businesses

• Transaction Structuring: Businesses must carefully assess the risks and costs of dealing with NJA entities, factoring in the possibility of higher taxes and compliance costs.

• Due Diligence: Enhanced due diligence on counterparties in NJAs becomes essential to avoid adverse tax consequences.

Comparative Analysis: Clause 176 vs. Section 94A and Rule 21AC

Structural and Substantive Similarities

A close reading reveals that Clause 176 is substantially modeled on Section 94A, with almost verbatim replication of language and effect. Both provisions:

• Empower the Central Government to notify NJAs;

• Deem all parties to transactions with NJAs as associated enterprises and the transactions as international transactions for transfer pricing purposes;

• Disallow deductions for payments to NJAs unless stringent conditions are met;

• Deem unexplained receipts from NJAs as income;

• Impose the highest of three rates for withholding tax on payments to NJAs;

• Provide broad definitions to ensure comprehensive coverage.

Rule 21AC provides the procedural backbone for Section 94A(3), specifying forms, documentation, and maintenance requirements. It is anticipated that similar rules will be prescribed under the new Bill to operationalize Clause 176(3).

Differences and Evolution

While the substantive content is nearly identical, there are some notable differences and evolutionary aspects:

• Section References: The Bill refers to the new section numbers (e.g., 162, 163, 165, etc.), which are the counterparts of Sections 92A, 92B, 92C, etc., in the 1961 Act. The underlying concepts-associated enterprises, international transactions, and transfer pricing-remain unchanged.

• Withholding Tax Chapter: Clause 176(5) refers to Chapter XIX-B (presumably the new chapter for TDS in the Bill), while Section 94A(5) refers to Chapter XVII-B. This is a technical update reflecting the reorganization of the Act.

• Exclusion of Certain Benefits: Clause 176(2) excludes the benefit of variation specified in section 165(3)(a)(ii) from its application, whereas Section 94A(2) excludes the second proviso to Section 92C(2). This may reflect a change or clarification in the scope of permissible adjustments in transfer pricing assessments.

• Definitions: The Bill cross-references definitions to its own sections (e.g., section 173), whereas Section 94A refers to Section 92F. The substance remains the same, but the Bill may include updated or refined definitions.

• Rule 21AC: While Rule 21AC is specifically tied to Section 94A, the Bill does not yet specify its own procedural rules. However, similar rules are expected to be notified for Clause 176.

Rule 21AC : Procedural Detail and Documentation

Rule 21AC prescribes the manner of furnishing authorization (Form 10FC) and details the additional documentation required for transactions with NJA entities, over and above the transfer pricing documentation u/r 10D. This includes:

• Ownership structure of the NJA entity;

• Profile of the multinational group;

• Description of the NJA entity's business and industry;

• Any other relevant information.

These requirements are designed to give the tax authorities a comprehensive understanding of the transaction and the parties involved, addressing the opacity associated with NJAs.

The Bill does not yet specify similar rules, but its language in Clause 176(3)(b) ("such other documents and information as prescribed") clearly contemplates the issuance of analogous rules.

 

Implementation Experience and Circulars

The practical application of Section 94A and Rule 21AC has been clarified by several circulars:

• Circular No. 15/2017 clarified the retrospective removal of Cyprus from the NJA list, emphasizing the government's flexibility and responsiveness.

• Press Release (1-11-2013) summarized the implications of NJA notification, including the application of transfer pricing, denial of deductions, onus on the taxpayer, and higher TDS.

• Press Release (7-11-2013) highlighted the diplomatic sensitivity and the importance of bilateral negotiations in resolving NJA-related disputes.

Ambiguities and Issues in Interpretation

Despite the clarity of legislative intent, several interpretative and practical issues arise:

• Scope of "Transaction": The definitions adopted are extremely broad, potentially bringing within their ambit even routine commercial dealings. This may lead to overreach and compliance burdens for genuine transactions.

• Burden of Proof: The provisions reverse the burden of proof regarding unexplained receipts, which may be challenged as draconian, particularly in cases where the taxpayer has limited access to information about the beneficial owner.

• Enforceability of Authorizations: Even if the taxpayer provides the prescribed authorization, NJA financial institutions may not be legally obliged to cooperate, rendering the compliance requirement a potential dead letter.

• Overlap with General Anti-Avoidance Rule (GAAR): There is potential overlap with GAAR provisions, leading to uncertainty about which regime applies in a given case.

• Potential for Double Taxation: The combination of disallowance of deductions, deeming of income, and high withholding tax may result in double or even triple taxation in some scenarios.

Policy and International Context

These provisions are consistent with global trends in combating tax evasion through non-cooperative jurisdictions. The OECD, G20, and FATF have all emphasized the need for transparency, information exchange, and countermeasures against tax havens. India's approach is broadly in line with these international standards, but the strictness of its measures (particularly the reversal of burden of proof and high withholding tax) is notable.

Other jurisdictions have adopted similar, though sometimes less stringent, measures. For example, the US has the FATCA regime, and the EU maintains a blacklist of non-cooperative jurisdictions with associated countermeasures.

For International Transactions and Cross-Border Structuring

The provisions have a chilling effect on legitimate business with NJAs, potentially discouraging genuine investment and trade if overbroadly applied. Multinational groups must exercise heightened diligence in structuring transactions and must be prepared for rigorous scrutiny and documentation requirements.

Conclusion

Clause 176 of the Income Tax Bill, 2025 represents a near-verbatim continuation of the regime established by Section 94A of the Income Tax Act, 1961, supported by Rule 21AC. Its aim is to deter tax avoidance and evasion through non-cooperative jurisdictions by imposing strict compliance, documentation, and withholding requirements, and by reversing the burden of proof for unexplained receipts. While the substantive framework remains unchanged, the Bill updates references and may clarify certain technical aspects. The practical impact is significant for taxpayers engaged in cross-border transactions, who must be prepared for rigorous scrutiny and documentation. The effectiveness of these provisions will depend on international cooperation and the ability to enforce information sharing with NJAs. Future reforms may focus on addressing ambiguities, ensuring proportionality, and harmonizing these measures with broader anti-avoidance rules.

Alternative Titles for the Commentary

1. "Clause 176 of the Income Tax Bill, 2025: A Comprehensive Comparative Analysis with Section 94A and Rule 21AC"

2. "Special Measures Against Tax Havens: Legal Commentary on Clause 176 and Its Predecessors"

3. "Strengthening Anti-Avoidance Regimes: The Evolution from Section 94A to Clause 176"

4. "Transactions with Notified Jurisdictional Areas: Compliance, Challenges, and Legal Developments"

 

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Full Text:

Clause 176 Special measures in respect of transactions with persons located in notified jurisdictional area.

 

 

Dated: 26-4-2025