Sunday 26 July 2020

Sunset Clause for SEZ?



 NTRODUCTION TO SEZs


A Special Economic Zone (SEZ) refers to a limited geographical region set up by the government to incentivize fresh foreign direct investment (FDI) and enjoys relaxed economic laws. In the year 2000, the government had set a target of creating 100 million jobs and of  achieving 25% of the country’s GDP from manufacturing by the year end 2022. Thus, the government had set forth a SEZ policy as a part of it s EXIM policy.

 

These economic zones are governed and regulated by the Special Economic Zones Act, 2005 which essentially converted pre-existing Export Processing Zones (EPZ) to now ident ify as SEZ’s. They are vital for employment generation in the country as well as increasing balance of trade is foreseeable. Exports generated from these zones in the last half a decade has reflected an exponential growth. In India there are 423 formally approved zones, attracting a total investment of approx. Rs. 5,37,657,67 Crore.

 

TYPES OF SEZs

SEZ covers a broad range of specific zone types which include:

1)      Free-Trade Zones (FTZ)

This is an area usually organized around major seaports, airports and national frontiers within which goods are landed, handled, manufactured and re-exported but are not subjected to custom dut ies unless the goods are moved to consumers within the same country. These areas are deemed foreign territory.

The Government of India introduced a Free Trade and Warehousing Zones (FTWZ) Policy as a part of it s Free Trade Policy 2004-2009, to increase infrastructure and attract employment in underdev eloped parts of the country. Arshiya International Ltd was India's first fully functional FTWZ, set up in 2011.


2)      Export Processing Zones (EPZ)

The concept of EPZs in India has been since the early 1970's, the first one being Kandla Free Trade Zone (KAFTZ), in Kandla, Gujarat. They are clusters of aggressive economic activity, specially designed for the growth of Exports by way of tax rebates, fiscal incentives etc.

 

In addit ion to the upgradat ion of labour, advancement of technology and infrastructural development , EPZ promote FDI and channel foreign exchange for the country.

There exists three t ier-management system wherein the first tier is headed by the Commerce Secret ary, Ministry of  Commerce. Second tier is headed by Addit ional Secret ary, Board of Approvals, responsible for examination of proposals and new enterprises.

The three t iers are monitored by the Development Commissioner.


3)      Free Zones (FZ)

Free zone is an area adjoining a port that permits the dut y-free entry of foreign goods intended for re-export. There are 12 major free ports in India.


4)      Industrial Estates (IE)

It is developed over an area unto 1500 acres at a particular place for the growth of small scale sector wherein infrastructure such as roads, power and other utility services are provided to facilitate the growth of indust ries and to minimize adverse impact of economic development on the environment.


5)      Urban Enterprise Zones

They are similar to FTZ when it comes to tax incentives, except they are located closer to urban areas and attract skilled labour.

 


 

ISSUES SURROUNDING THE SUNSET CLAUSE


Some crucial benefits available to SEZ’s include relaxed taxation laws, both indirect and direct tax exemptions; relaxed labour regulations i.e. no labour unionization is allowed and relaxed custom dut ies. Thus, SEZ’s have proved to be an attractive policy to foreign investors bringing FDI in the country.

 

However recurrent uncertainty in government  policies, especially tax has been a burden. There has been a push towards establishing a Direct Tax Code (DTC) which is meant to replace the Income Tax Act (ITA), 1961 and all tax rebates granted under the umbrella of the existing taxation regime.

 

Under Section 10AA of the ITA, 100% income tax exemption is provided  on export income for SEZ units for the first 5 years, 50% income tax exemption is provided for the next 5 years and 50% income tax exemption is provided for the ploughed back export profit for the subsequent 5 years if the unit has commenced operations from 1st April, 2006 onwards and this tax holiday expires on 31st March, 2020.

 

Central Board of Direct Taxes (CBDT) in an effort to phase out corporate tax exemptions had introduced sunset clauses to terminate Direct Tax benefits including weighted deduct ions on capital expendit ure.

 

For example, laying and operating petroleum product pipelines, constructing hotels, warehousing facilities and even affordable housing starting March, 2017 for SEZ developers and April, 2020 for SEZ units but this move result into considerable loss of business for the country in terms of reduced forex earnings and create unutilized assets within SEZs unless the dat e of the Sunset Clause is extended.




 

 

 

BABA KALYANI REPORT ON SUNSET DATE


In June 2018, the Ministry of Commerce and Industry constituted a committee to study the existing SEZs in India and prepare a policy framework to adopt strategic policy measures which comply with WTO requirements and could help the country take advant age of global growth opportunities and simultaneously develop it s own highly competitive manufacturing and service base.

 

The committee has proposed a shift in SEZs philosophy from trade- competitiveness to manufacturing-competitiveness, from being export-oriented to tilting towards broad-based Employment and Economic Growth orientation.

 

Thus, the objective would no longer be focused on exports rather it should be a catalyst of economic  and employment growth, with the aid of  quality infrastructure, ease of  doing business and most notably t he 3E’s namely; Employment and Economic Enclaves.

 

The aforesaid objective aims to bring together all classes of investors that support economic activity for job creation and have investments targeted towards supporting the domest ic demand.


RECOMMENDATIONS BY THE COMMITTEE

1.              The Committee has pushed for a change in objectives; however it has maintained that in order to revitalize SEZ projects, wherein investors have agreed to undertake long term risks keeping in mind the original SEZ Policy, it is important to extend the Sunset Date.


 

 

An extension would not only help in fully utilizing the existing assets of SEZs but also in securing the investments made by developers as it will provide more time for revenue generation.

 

2.              Compliance with WTO has been extensively discussed in the report and it has been noted that an extension of direct tax benefit to “services" have neither been objected to by WTO member countries nor violate international agreements.

 

Hence, continuation of income tax benefit on export revenue of “Services SEZs” need to be considered in line with those extended for International Financial Service Centre (IFSC).

 

3.              The report has maintained that Sunset clause ought to be extended and greater flexibility needs to be provided to investors on the minimum numbers of years for lease.

 

The SEZ Act was notified by Central Government in 2005 and its Rules were framed in 2006 which stipulates that minimum period of lease of plot for setting-up SEZ should be 20 years.

 

If not for the Sunset Clause, an investor would reasonably expect tax exemptions to continue t ill 2026, thus for the sake of maintaining certainty for foreign investors looking forward to avail Direct Tax benefit on export proceeds and were relying on the SEZ Policy, an extension ought to be considered.

 

 

4.              Currently, Minimum Alternate Tax (MAT) is levied at 20% and the Corporate Tax slab has been reduced to 24% for MSMEs. Thus, effectively there is a marginal benefit of approximately 4% being given to SEZs.

 

Addit ionally, the government has decided that a special IT levy of 15% for new manufacturing units, is to  be  instituted.  Thus,  since  revenue depart ment is not losing a substantial revenue for new manufacturing units, the sunset dat e for IT/ITES SEZs can easily be extended.

 

5.              Unified regulator for IFSC.

 

6.              Utilizing Multi Services SEZ IFSC for all the in-bound and out-bound investment of the country.

 

 


 

POST COVID – 19 IMPACT


The impact of Covid-19 on Special Economic Zones has been immense. Due to restrictions on movement and other services, applications for new SEZs have been delayed and heavy investment on designat ed new zones may yield results only in 2021 due to disrupt ed and halted operations.

 

By virtue of an Ordinance dat ed 31.03.2020, the initial extension was from 31st March, 2020 to 30th June, 2020.

 

Further, the Ministry of Commerce vide Notification dat ed 24.06.2020 direct ed the CBDT to extend the income tax holiday for new units up to 3 additional months, i.e. till 30th September, 2020.

 

For all the new units that begin operations in  2020-21, to receive the benefit of the sunset clause, a longer extension period will motivate  heavy  investment flow, employment and competitive foreign funds.

 

The Export Promotion Council for EoUs & SEZs along with the Commerce Ministry had pondered upon and discussed the possibility of extending the applicability of the sunset clause for SEZs for a period of another 5 years.

 

 


 

INTRODUCTION TO INTERNATIONAL FINANCIAL SERVICES CENTRE


 

An Int ernational Financial Services Cent re (“IFSC”) deals with the flow of finance and financial product s to serve it s customers outside the jurisdict ion of the country in the area where it is operational. In usual course, IFSC is an unlisted company operating in a Special Economic Zone and serves persons outside it s economic original jurisdict ion to extend the world economy to non-resident s in the form of export services.

 

An IFSC can be set up in a SEZ as per Section 18(1) of the Special Economic Zones Act, 2005 which st ipulates as hereunder:


 

“The Cent ral Government mayapprove t he setting up of an Int ernat ional Financial Service Cent re in a Special Economic Zone and may prescribe t he requirement s for set t ing up and operat ion of such cent re.

 

Provided  that t he   Cent ral   Government   shall   approve   only   one  Int ernat ional Financial Services Cent re in a Special Economic Zone.”

 

IFSC provides varied services like fund-raising for companies and governments, asset and wealth management, global portfolio growth in terms of exports and foreign exchange, optimizing business opportunity across borders for intermediaries, facilitating mergers and acquisitions and other risk management functions.

 

India’s first IFSC, Gujarat International Finance Tec-City (GIFT City) was inaugurated in April, 2015 to promote infrastructure projects, technology, foreign investment, employment among other services. The Global Financial Centre in London and Singapore are the most successful t ill dat e.

 

 

 


 

SCOPE & POTENTIAL OF IFSC DEVELOPMENT


There has been a keen  academic interest in the recent years towards developing IFSCs and in the event that the government does not extend the dat e for applicability of sunset clause for SEZs relating to tax holiday, there is a high probability that such interest may be transformed into a need-of-t he-hour endeavor.

 

The massive scope for IFSCs can be attributed to the benefits it receives from different sectors. While it is remarked that overlapping regulatory norms have hindered growth so far, competitiveness on an international scale can st ill be achieved.

 

A.     2015 RBI Notification under Foreign Exchange Management Act, 1999

i.                 Any financial institution set up will be treated as a non-resident Indian;

ii.        Any financial institution set up shall conduct business in foreign currency

with both resident s & non-resident s, as prescribed; and

iii.        Any financial institution set up will not be subject to other regulations applicable to a “unit” located in the IFSC.

 

B.      Income-Tax Act, 1961 benefits

i.   IFSC is subject to the same benefits and tax exemptions under the Sunset Clause Section 10AA, if it is set up within a SEZ before the expiry of such clauses; and

ii.  Under Section 80LA, an IFSC is granted 100% tax deduct ion for a period of 10 consecutive years within a block of 15 years if it is a Banking Unit.

 

C.    Indirect tax benefits

i.   High      relaxation        of Securit ies  Transactions Tax (STT) & Commodit ies Transactions Tax (CTT);

ii.   Exemption from custom duties; if import of goods is to set up a Banking

Unit; and

iii.   Exemption from GST; if there are services imported from other branches located in other parts of the world.

 

While the aforesaid do not appear to look like they can be leveraged against the high scale advant ages of the income tax holiday provided currently to SEZs, the potential for expansion of IFSC is slowly being recognized.

 


 

CHALLENGES TO THE INDUSTRY AND THE RECOMMENDATIONS


The extension on the applicability of direct tax holiday granted to SEZs has made the indust ry hopeful of a longer sunset period, perhaps until the end of the financial year if the government and CBDT are convinced.

 

However, in case the Sunset Clause expires next year and the effects of the Covid-19 pandemic do not ripple down, challenges and tough t imes lie ahead. They can be countered with solutions, albeit time consuming.


RECOMMENDATIONS

1.  The first and foremost recommendat ion to the biggest hurdle of making operational already designat ed SEZs is to give them an opportunity to make good the heavy investment by extending the date of Sunset Clause for the SEZ units.

 

A longer period, in terms of extension, counted in years would be preferable for the Indian sector to grow enormously.

 

2.  All the suggestions provided in the Baba Kalyani Committee Report need to be given due attention, particularly the ones relating to reducing MAT & CTT need to be implemented in concurrence with creating a dispute resolution structure for notified offences to create transparency and faith in the system.

3.  The problem of long term risk taken by SEZs can also be countered by utilizing existing assets and securing developers investment through optimal revenue generation in case the tax holiday is extended t ill the end of this year. The recent CBDT notification seems to be leaning towards this mindset as well and the same needs to be continued.

4.  The construction and development of IFSCs in India has to be given due notice by constituting an Expert Committee under the SEZ Act to look into the exact t imeline and cost planning to benefit.

These special zones with regulations from different sectors and huge tax and banking relaxations prove that IFSCs will also succeed in raising the financial services export competitiveness of India in the global context.

 

 


 

CONCLUSION


Since it is the general consensus that the major reason for the export income generated by Indian SEZs is the tax holiday given to all such units, it is reasonable that the indust ry as well as the government is pushing for an extension of the Sunset Clause as provided in the Income Tax Act, 1961.

Indirect tax benefits also seem to have an effect on their growth and the designat ion of more than a hundred SEZs within one year is test imony to that fact. Nonetheless, with foreign investors looking at India for financial services


 

export and fund management, IFSCs can be the new hotspot for the country to place it self on the global competitive index.


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