Taxation - Pass through status to Category- i and Category- ii - Alternate Investment Funds, Income Tax

[Admin TMI]

Question- What are the proposed special regime in Finance Bill 2015 for taxation of income of Alternative Investment funds?

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[Admin TMI]

Pass through status to Category -I and Category -II Alternative Investment Funds

The existing provisions of section 10(23FB) of the Act provide that any income of a Venture Capital Company (VCC) or a Venture Capital Fund (VCF) from investment in a Venture Capital Undertaking (VCU) shall be exempt from taxation. Section 115U of the Act provides that income accruing or arising or received by a person out of investment made in a VCC or VCF shall be taxable in the same manner, on current year basis, as if the person had made direct investment in the VCU.

These sections provide a tax pass through (i.e. income is taxable in the hands of investors instead of VCF/VCC) only to the funds, being set up as a company or a trust, which are registered (i) before 21.05.2012 as a VCF under SEBI (Venture Capital Funds) Regulations, 1996, or (ii) as venture capital fund being one of the sub-categories under category-I Alternative investment fund (AIF) regulated by SEBI (AIF) Regulations, 2012 w.e.f. 21.05.2012. The existing pass through is available only in respect of income which arises to the fund from investment in VCU (Venture Capital Undertaking), being a company which satisfies the conditions provided in SEBI (VCF) Regulations, 1996 or SEBI (AIF) Regulations, 2012 (AIF regulations) .

Under the AIF regulations, various types of AIFs have been classified under three separate categories as Category I, II and III AIFs. Category I includes AIFs which invest in start-up or early stage ventures or social ventures or SMEs or infrastructure or other sectors or areas which the Government or regulators consider as socially or economically desirable. Category II AIFs are funds including private equity funds or debt funds which do not fall in Category I and III and which do not undertake leverage or borrowing other than to meet day-to-day operational requirements. Category III AIFs are funds which employ diverse or complex trading strategies and may employ leverage including through investment in listed or unlisted derivatives. The funds can be set up as a trust, company, limited liability partnership and any other body corporate. Similarly, investment by AIFs can be in entities which can be a company, firm etc.

Pooled investment vehicles (other than hedge funds) engaged in making passive investments have been accorded pass through in certain tax jurisdictions. In order to rationalize the taxation of Category-I and Category-II AIFs (hereafter referred to as investment fund) it is proposed to provide a special tax regime. The taxation of income of such investment fund and their investors shall be in accordance with the proposed regime which is applicable to such funds irrespective of whether they are set up as a trust, company, or limited liability firm etc. The salient features of the special regime are:-

(i) income of a person, being a unit holder of an investment fund, out of investments made in the investment fund shall be chargeable to income-tax in the same manner as if it were the income accruing or arising to, or received by, such person had the investments, made by the investment fund, been made directly by him.

(ii) income in the hands of investment fund, other than income from profits and gains of business, shall be exempt from tax. The income in the nature of profits and gains of business or profession shall be taxable in the case of investment fund.

(iii) income in the hands of investor which is of the same nature as income by way of profits and gain of business at investment fund level shall be exempt.

(iv) where any income, other than income which is taxable at investment fund level, is payable to a unit holder by an investment fund, the fund shall deduct income-tax at the rate of ten per cent.

(v) the income paid or credited by the investment fund shall be deemed to be of the same nature and in the same proportion in the hands of the unit holder as if it had been received by, or had accrued or arisen to, the investment fund.

(vi) if in any year there is a loss at the fund level either current loss or the loss which remained to be set off, the loss shall not be allowed to be passed through to the investors but would be carried over at fund level to be set off against income of the next year in accordance with the provisions of Chapter VI of the Income-tax Act.

(vii) the provisions of Chapter XII-D (Dividend Distribution Tax) or Chapter XII-E (Tax on distributed income) shall not apply to the income paid by an investment fund to its unit holders.

(viii) the income received by the investment fund would be exempt from TDS requirement. This would be provided by issue of appropriate notification under section 197A(1F) of the Act subsequently.

(ix) it shall be mandatory for the investment fund to file its return of income. The investment fund shall also provide to the prescribed income-tax authority and the investors, the details of various components of income, etc. for the purposes of the scheme.

Further, the existing pass through regime is proposed to be continued to apply to VCF/VCC which had been registered under SEBI (VCF) Regulations, 1996. Remaining VCFs, being part of Category-I AIFs, shall be subject to the new pass through regime.

Illustration

The broad features of the above regime can be explained through the following Examples. For simplicity, it is assumed that the investment fund has ten unit holders each having one unit and the income from investment in the investment fund is the only income of the unit holder.

Example 1: If in a previous year, the income stream of the investment fund consists of:

Income by way of capital gains	₹ 800
Income from other sources	₹ 200

Then:

Total Income of the investment fund	NIL
Total income of the unit holders	₹ 1,000
Total income of a unit holder	₹ 100

Break up:

Chargeable under the head “Capital gain”	₹ 80
Chargeable under the head “Income from other sources”	₹ 20

Example 2: If in Example 1, the income stream of investment fund consists of:

Business income	₹ 100
Income by way of capital gains	₹ 700
Income from other sources	₹ 200

Then:

Total Income of the investment fund	₹ 100
(Tax shall be charged at applicable rate if investment fund is a company or a firm, else at maximum marginal rate)
Income arising to a unit holder	₹ 100
Income of unit holder which is exempt	₹ 10
Total income of a unit holder (chargeable to tax)	₹ 90

Break up:

Chargeable under the head “Capital gain”	₹ 70
Chargeable under the head “Income from other sources”	₹ 20

Example 3: If the income stream of the investment fund consists of:

Business Loss	₹ 100
Capital gains Loss	₹ 300
Income from other sources	₹ 400

Then:

The business loss of ₹ 100 is set off against Income from other sources whereas Capital gain loss cannot be set off. The result is:

Total Income of the investment fund (Loss of ₹ 300 remains at investment fund level to be carried forward for set off in subsequent years)	NIL
Total income of the unit holders	₹ 300
Total income of a unit holder	₹ 30
(Chargeable under the head “Income from other sources”)

Example 4: If in the previous year immediately succeeding the previous year mentioned in Example 3, the income stream of the investment fund consists of:

Business income	₹ 100
Income by way of capital gains	₹ 450
Income from other sources	₹ 500

Then:

Total Income of the investment fund

₹ 100

(Business income)

Exempt Income -

Capital Gain (Rs. 450 - ₹ 300)	₹ 150
Income from other sources	₹ 500
Income accruing or arising to the unit holders	₹ 750
Income of a unit holder including exempt income	₹ 75
Total Income of a unit holder	₹ 65

Break up:

Exempt Income	₹ 10
Chargeable under the head “Capital gain”	₹ 15
Chargeable under the head “Income from other sources”	₹ 50

These amendments will take effect from 1st April, 2016 and will, accordingly, apply in relation to the assessment year 2016-17 and subsequent assessment years.