Streamline, simplify, and update the tax framework applicable to non-residents and foreign companies : Clause 207 of the Income Tax Bill, 2025 Vs. Section 115A of the Income-tax Act, 1961

Clause 207 Tax on dividends, royalty and technical service fees in case of foreign companies.

Income Tax Bill, 2025

1. Introduction

Clause 207 of the Income Tax Bill, 2025 represents a significant legislative effort to consolidate, rationalize, and modernize the tax regime applicable to non-residents and foreign companies, specifically concerning their income from dividends, interest, royalties, fees for technical services, and certain other sources. This clause is intended to replace, update, and, in some respects, expand upon the existing framework provided by Section 115A of the Income-tax Act, 1961. Both provisions are central to the taxation of cross-border income flows and have far-reaching implications for international investors, multinational enterprises, and the Indian economy's integration with global financial markets. The legal context for Clause 207 is the ongoing need to ensure competitiveness, clarity, and compliance in India's international tax regime, especially in light of evolving business models, the emergence of International Financial Services Centres (IFSCs), and the increasing complexity of financial instruments and cross-border transactions. The clause must be read not only as an isolated rate provision but also in conjunction with definitions, procedural rules, and the broader policy objectives of India's direct tax system.

2. Objective and Purpose

The legislative intent behind Clause 207 is multi-faceted:

• To provide certainty and clarity regarding the tax rates applicable to non-residents and foreign companies for specific types of income, thereby enhancing India's attractiveness as an investment destination.
• To align the tax regime with international best practices and India's treaty obligations, while safeguarding the tax base against aggressive tax planning and treaty abuse.
• To incentivize specific sectors and activities, such as investments in IFSCs and infrastructure, through preferential tax rates.
• To streamline compliance by providing clear rules regarding deductions, return filing, and the scope of taxable income for non-residents.
• To address ambiguities and close loopholes that may have existed under the previous regime, particularly in the context of evolving financial products and digital transactions.

The historical backdrop includes several decades of incremental amendments to Section 115A, reflecting shifts in policy, judicial interpretations, and global trends. Clause 207 seeks to consolidate these changes and provide a forward-looking, coherent structure.

3. Detailed Analysis of Clause 207 of the Income Tax Bill, 2025

Clause 207 is structured into eight sub-sections, each dealing with specific aspects of the taxation of non-residents and foreign companies. The clause also includes two detailed tables specifying the tax rates for various categories of income.

3.1 Tax Rates on Specified Incomes

Clause 207(1) establishes the core rate structure for non-residents (not being companies) and foreign companies. It introduces a comprehensive table (Table 1) that lists various types of income and the corresponding tax rates:

• Dividends (other than from IFSC units): Taxed at 20%.
• Dividends from IFSC units: Preferential rate of 10%.
• Interest from Government/Indian concern (in foreign currency): 20%.
• Interest from infrastructure debt funds: 5%.
• Interest of specific nature (per section 393(2)): At rates specified in section 393(2), allowing for flexibility and alignment with other legislative instruments.
• Distributed income being certain interest: Again, at rates per section 393(2).
• Income from units (purchased in foreign currency) of specified Mutual Funds or UTI: 20%.
• Residual total income (excluding above): Taxed at normal rates applicable to the entity.

This structure is designed to provide certainty, encourage investments in priority sectors (e.g., IFSCs, infrastructure), and align with international standards.

3.2 Tax on Royalty and Fees for Technical Services

This Clause 207(2) applies to non-residents and foreign companies receiving royalty or fees for technical services (FTS) from the Government or an Indian concern under agreements made after March 31, 1976. The key features are:

• Tax on royalty and FTS at 20% (unless excluded by section 59(1)).
• Requirement for agreement approval by the Central Government or compliance with the industrial policy, providing a policy filter for eligibility.
• Residual income taxed at normal rates.

This approach maintains a balance between encouraging technology transfer/knowledge inflows and safeguarding the tax base.

3.3 Special Provisions for Certain Royalties

This Clause 207(3) carves out exceptions for royalties received in consideration for:

• Transfer or grant of rights in respect of copyright in any book to an Indian concern; or
• Transfer or grant of rights in respect of computer software to a person resident in India.

In such cases, the requirement for Central Government approval or compliance with industrial policy is waived, facilitating ease of business and technology importation.

3.4 Definitions

Clause 207(4) defines key terms for clarity and to avoid interpretational disputes:

• Computer software: Broadly defined to include programs recorded on any storage device, customized data, or similar products/services as notified by the Board, including those transmitted or exported from India.
• Fees for technical services and royalty: Linked to the definitions in section 9, ensuring consistency with the broader Act.

3.5 Denial of Deductions

Clause 207(5) No deduction for any expenditure or allowance u/ss 28 to 61 and section 93 is allowed in computing income covered by sub-sections (1) and (2). This ensures the rates are applied on a gross basis, simplifying administration and preventing base erosion through artificial deductions.

3.6 Restriction on Deductions under Chapter VIII

• If the gross total income consists only of the specified income, no deduction under Chapter VIII is allowed.
• If the gross total income includes such income, it is excluded for the purpose of computing deductions under Chapter VIII.

This prevents double benefits and ensures that concessional rates are not coupled with other tax incentives.

3.7 Exception for IFSC Units

Specifies that the above restriction does not apply to deductions allowed to units in an IFSC u/s 147, thus preserving special incentives for IFSCs as part of India's financial sector development strategy.

3.8 Exemption from Return Filing

Non-residents are exempt from filing a return of income if:

• Total income consists only of specified income as per Tables in sub-sections (1) and (2), and
• Tax has been deducted at source at rates not less than those specified.

This measure reduces compliance burden for non-residents with passive income fully subjected to withholding tax.

4. Practical Implications

4.1 For Non-Residents and Foreign Companies

• Certainty of Taxation: Fixed tax rates on specified income streams provide predictability, crucial for cross-border investment planning.
• Ease of Compliance: Exemption from return filing where TDS is at prescribed rates reduces administrative burdens, especially for portfolio investors and passive income recipients.
• Targeted Incentives: Lower rates for IFSC-related income and infrastructure debt funds align with policy objectives to attract foreign capital in these sectors.
• No Deductions: Gross basis taxation simplifies assessment but may deter investments where significant expenses are incurred to earn the income.

4.2 For the Tax Administration

• Simplified Assessment: Gross taxation and TDS-based compliance reduce scope for disputes and administrative workload.
• Reduced Evasion: Clear rules and TDS mechanisms minimize opportunities for base erosion and profit shifting.

4.3 For Policymakers

• Policy Leverage: Ability to adjust rates for specific sectors or instruments (e.g., infrastructure, IFSC) via subordinate legislation or amendments.
• Alignment with International Standards: Consistency with treaty obligations and OECD principles enhances India's credibility as an investment destination.

5. Comparative Analysis: Clause 207 vs. Section 115A

A detailed, provision-by-provision comparison reveals both continuity and innovation in the transition from Section 115A to Clause 207.

5.1 Structure and Scope

Both provisions are designed to tax specified categories of income of non-residents and foreign companies at special rates. However, Clause 207 is more structured, with clear tables and cross-references to other sections/schedules, reflecting a modern drafting style.

5.2 Types of Income and Tax Rates

Income Type	Section 115A of the Income-tax Act, 1961	Clause 207 of the Income Tax Bill, 2025	Key Differences
Dividends (non-IFSC)	20%	20%	Continuity; same rate
Dividends from IFSC units	10% (recently introduced)	10%	Explicit inclusion and clarity in the Bill
Interest from Govt/Indian concern (foreign currency)	20%	20%	Same rate; clearer drafting
Interest from infrastructure debt fund	5%	5%	Same; cross-referenced to schedules
Interest u/ss 194LC, 194LD, 194LBA	Rates as per those sections	Rates as per section 393(2)	Modernized cross-referencing; functionally similar
Income from units purchased in foreign currency	20%	20%	Same
Royalty & FTS	20% (post-1 June 2005 agreements)	20%	Same, but with streamlined approval/policy compliance mechanism

5.3 Deductions and Allowances

• Section 115A(3): No deduction u/ss 28 to 44C and section 57.
• Clause 207(5): No deduction u/ss 28 to 61 and section 93.

The Bill expands the denial of deductions to a broader range of sections, reflecting the reorganization of the new Code.

5.4 Restrictions on Chapter VI-A/Chapter VIII Deductions

• Section 115A(4): No deductions under Chapter VI-A if income consists only of specified incomes; if included, such income is excluded for deduction computation. Exception for IFSC units u/s 80LA.
• Clause 207(6)-(7): Mirrors this structure, referencing Chapter VIII and section 147 (for IFSC units).

The Bill maintains the policy but updates references to new section numbers.

5.5 Return Filing Exemption

• Section 115A(5): No return required if income consists only of specified types and TDS is at or above prescribed rates.
• Clause 207(8): Same, but references updated tables and sections for clarity.

5.6 Definitions

• Section 115A: Definitions for "fees for technical services," "royalty," "foreign currency," and "Unit Trust of India" are provided, with cross-references to section 9 and other parts of the Act.
• Clause 207: Definitions for "computer software," "fees for technical services," and "royalty," with updated, more expansive language for computer software to cover digital exports and similar products.

5.7 Special Provisions for Royalties (Copyrights/Software)

• Section 115A(1A): Waives approval/policy compliance for royalties from books/software, subject to import control policy.
• Clause 207(3): Similar waiver, but language is streamlined and references to import policy are omitted, reflecting liberalization and digitalization.

5.8 Structural and Drafting Improvements

• Clause 207 is more user-friendly, with clear tabular presentations, updated cross-references, and reorganized sections for ease of navigation and application. It addresses ambiguities that had arisen u/s 115A due to piecemeal amendments over decades.

6. Conclusion

Clause 207 of the Income Tax Bill, 2025 represents a comprehensive and modernized framework for taxing the Indian-source income of non-residents and foreign companies. It preserves the core policy objectives and rate structures of Section 115A of the Income-tax Act, 1961, while introducing significant improvements in clarity, structure, and alignment with contemporary economic realities. Key features include:

• Clear and predictable tax rates for various streams of income, with targeted incentives for IFSCs and infrastructure.
• Gross basis taxation, simplifying compliance and administration.
• Rationalized definitions and exceptions, particularly for digital and knowledge-based income streams.
• Streamlined compliance requirements, including exemption from return filing in low-risk cases.
• Policy flexibility to adapt to future changes in the international and domestic tax landscape.

Potential areas for future reform or clarification include further alignment with international tax developments (such as BEPS and digital economy taxation), periodic review of rates to maintain competitiveness, and continued efforts to minimize administrative complexity for non-resident taxpayers.

---

Full Text:

Clause 207 Tax on dividends, royalty and technical service fees in case of foreign companies.

 

Dated: 29-4-2025