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Act Rules Income Tax
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Wilful attempt to evade tax: criminalises deliberate falsification and omissions, with tiered imprisonment and fines.
Section 478 criminalises a wilful attempt to evade tax and wilful under reporting by prescribing tiered rigorous imprisonment and fines, and it lists illustrative acts-false entries, omissions, possession of falsified books and conduct enabling evasion. The Act relocates and rephrases fine and penalty preservation language into a standalone non prejudice clause and tightens causation wording in an illustrative sub clause. Definitions of key terms and procedural or evidentiary standards are not provided in the text.
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Failure to remit withheld tax attracts criminal liability including imprisonment and fine; safe harbour if credited before filing deadline.
Failure to remit taxes deducted under Chapter XIX-B or required by specified Notes to the Table in section 393 constitutes a criminal offence punishable by rigorous imprisonment and fine; the offence applies where a person fails to pay amounts to the credit of the Central Government, subject to a temporal safe harbour if payment is made or credited on or before the time prescribed for filing the relevant statement.
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Fraudulent disposition of property to frustrate tax execution now criminalised, tied specifically to a certificate drawn under section 413.
The offence criminalises anyone who fraudulently removes, conceals, transfers or delivers any property or interest therein with intent to prevent such property or interest from being taken in execution of a certificate drawn u/s 413; punishment is rigorous imprisonment up to two years and a fine. The enacted text replaces the Bill's broader "as prescribed" formulation with a direct reference to section 413, clarifying the instrument whose execution the offence seeks to frustrate. The clause contains no exceptions, definitions of "fraudulently," or evidentiary rules.
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Section 470 bars imposition of penalties under the listed provisions where a person or assessee proves there was reasonable cause for the failure; it frames the exception as prevailing irrespective of anything in those provisions and places the burden of proof on the person, while not defining "reasonable cause" or prescribing standards, procedures, or timing for such proof.
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Penalty for non-furnishing by eligible investment funds may be imposed as a fixed sanction for late or missing reports.
The provision authorises the prescribed income tax authority to direct an eligible investment fund to pay a fixed penalty of five lakh rupees where the fund fails to furnish a required statement, information or document within the time prescribed under the referenced provision; the sanction is discretionary and the text contains no exceptions, mitigation procedures or notice stages in the extract provided.
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Penalty for inaccurate financial statements made mandatory; reporting institutions face per-account liability and recovery rights from account-holders.
Section 455 imposes a fixed penalty on persons required to furnish statements under section 508(1) for inaccurate information, failure to correct within the period under section 508(8), or non-compliance with due diligence under section 508(9). It also imposes an additional per-account liability on reporting financial institutions where inaccuracies arise from false or inaccurate information furnished by account-holders, and entitles institutions to recover or retain amounts paid from those account-holders. The provision cross-references section 508 and does not set out adjudicatory or appeal procedures.
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Penalty for failure to provide electronic payment facilities imposes strict daily liability and removes statutory exception to avoid sanction.
The provision imposes a continuing daily monetary penalty, to be levied by the Assessing Officer, for failure to provide facilities to accept payments through prescribed electronic modes; the Bill included a proviso allowing avoidance of the penalty on proof of good and sufficient reason, but the enacted text omits that proviso, leaving key definitions, evidentiary standards, and procedural modalities unspecified.
Act Rules Income Tax
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Penalty for failure to comply: Assessing Officer may impose monetary penalty equal to sums received unless recipient proves good reasons.
Section 451 authorises the Assessing Officer to impose a penalty equal to the sum received by a person in contravention of the relevant statutory provision; the earlier Bill expressly allowed escape if the recipient proved "good and sufficient reasons," but the enacted text omits that proviso, leaving the ambit of any exception, standards for evaluation, and the character of assessing discretion unspecified.
Act Rules Income Tax
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Penalty on undisclosed income: fixed levy on withholding-tax liability, with exemption for timely disclosure and payment.
A discretionary penalty applies where assessed income includes categories of unexplained or undisclosed receipts imported by reference to existing provisions; it is levied as a percentage of the tax payable under the withholding-tax provision, is additional to that tax, is not imposed if the income was included in the return and the withholding tax paid within the relevant year, and cannot be duplicated by another penalty for the same income. The enacted text omits an explicit cross-application of existing procedural penalty machinery, creating procedural uncertainty.
Act Rules Income Tax
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Penalty for under-reporting: statutory regime imposing enhanced sanctions for deliberate misreporting and rules for computing tax on additions.
Clause 439 creates a penalty regime for under reporting and aggravated misreporting during tax proceedings by defining deemed under reporting events, prescribing formulae to compute under reported income (including interactions with deemed total income rules), allocating additions across years to prevent double counting, listing exceptions where penalties will not apply, enumerating aggravating misreporting acts that attract higher sanctions, and requiring that penalty be imposed by written order of the Competent Authority.
Act Rules Income Tax
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Set-off of tax refunds: authorities may offset or temporarily withhold refunds subject to written intimation and procedural safeguards.
Section 438 authorises the Assessing Officer and senior Commissioners to set off refunds due against outstanding tax liabilities and to withhold refunds where assessment or reassessment proceedings are pending. Set off must follow written intimation to the taxpayer. Withholding a refund while proceedings are pending is limited in time and requires reasons recorded in writing plus prior approval of the Principal Commissioner or Commissioner.
Act Rules Income Tax
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Interest on refunds: entitlement to monthly simple interest and additional annual interest where orders trigger refunds.
Interest on refunds is payable as simple interest at a monthly rate from specified starting dates determined by refund source (tax collected at source/advance tax/treatment as paid; tax paid under specified provisions; excess payments under demand notices), with an additional annual interest where refunds follow certain appellate or rectification orders. Periods attributable to the assessee/deductor are excluded; immaterial refunds below a threshold do not attract interest for defined categories; interest is adjusted if subsequent orders change the underlying amount and assessing officers may demand excess interest.
Act Rules Income Tax
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Two-tier fee for late tax return filing: fixed higher fee for higher-income filers and capped fee for others.
A statutory two tier fee applies where a person required to furnish a return within the prescribed time fails to do so. Both enacted and bill texts impose a fixed higher fee for taxpayers above the income threshold and a lower fee capped for taxpayers at or below that threshold. The enacted drafting places the capped lower fee first, preserving discretion up to the cap for lower income filers; both texts operate without prejudice to other provisions of the Act and cross reference the filing time provision. Procedural and enforcement details are not stated.
Act Rules Income Tax
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Daily fee for delayed tax statements requires prepayment before filing and is capped at the tax collectible amount.
A mandatory daily fee applies where a person fails to deliver a prescribed statement of tax deducted or collected at source within the time prescribed in a cross referenced subsection; the fee accrues each day until compliance, is capped so it does not exceed the amount of tax deductible or collectible for the period, and must be paid before delivering the delayed statement, without prejudice to other liabilities under the Act.
Act Rules Income Tax
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Advance tax interest rules require instalment-specific payments; shortfalls attract staged interest and safe harbour thresholds for compliance relief.
Section 425 imposes interest where advance tax instalments fall short of prescribed percentages by due dates, tying liability to tax due on the returned income. It prescribes staged instalment percentages and graduated interest on interim versus final shortfalls, provides two early safe harbour minima that eliminate interest if met, treats certain classes (profits declared under specified entries) with a distinct simple interest rule for the final instalment, and exempts shortfalls from interest for specified late arising incomes if taxed by later instalments or by 31 March.
Act Rules Income Tax
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Interest for defaults in payment of advance tax triggers monthly simple interest where advance payments fall short of assessed tax.
The provision charges simple interest where a taxpayer fails to pay advance tax or pays less than the safe harbour proportion of assessed tax, starting from 1 April following the tax year until determination of total income or completion of regular assessment. Interest is computed on assessed tax or the shortfall, with the assessed tax base reduced by specified items such as tax deducted/collected at source, reliefs and eligible tax credits; reassessment or recomputation increases or reduces interest accordingly and payments already made reduce liability.
Act Rules Income Tax
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Interest for defaults in furnishing return may accrue from differing start dates, altering the interest period and liabilities.
Section 423 charges simple interest for defaults in furnishing returns by applying a formula based on a tax base "A" and a period "T", with a Table linking specific filing or non-filing scenarios to starting and ending events for the interest period, reductions of the tax base by a prescribed definition of "tax paid", and provisions for adjustment (notice of demand or refund) where post-assessment orders change the tax on which interest is calculated.

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Business Income: Comparative Analysis of Clause 26 of the Income Tax Bill, 2025 and Section 28 of the Income-tax Act, 1961

6 March, 2025

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Clause 26 Income under head "Profits and gains of business or profession"

Income Tax Bill, 2025

Introduction

The Income Tax Bill, 2025, introduces Clause 26, which pertains to the taxation of income under the head "Profits and gains of business or profession." This clause is a significant development in the legislative framework governing business income taxation in India. It aims to update and refine the provisions related to business income, reflecting changes in the economic environment and business practices. The existing Section 28 of the Income-tax Act, 1961, has been the cornerstone of business income taxation for decades. This article provides a detailed analysis of Clause 26, comparing it with Section 28, and discusses the implications of the proposed changes.

Objective and Purpose

Clause 26 of the Income Tax Bill, 2025, seeks to modernize the taxation framework for business income. The legislative intent behind this provision is to ensure a comprehensive and inclusive definition of income under "Profits and gains of business or profession." It aims to address ambiguities and incorporate various forms of compensation and benefits that have emerged in modern business practices. The historical context of Section 28 of the Income-tax Act, 1961, reflects the economic conditions of its time, and Clause 26 seeks to align the taxation framework with contemporary business realities.

Detailed Analysis

1. Income from Business or Profession

Clause 26(1) states that income from any business or profession carried on by the assessee during the tax year is chargeable under "Profits and gains of business or profession." This mirrors Section 28(i) of the 1961 Act, which also taxes profits and gains from business or profession during the previous year. The primary change is the terminology shift from "previous year" to "tax year," which may imply a different accounting period or fiscal alignment.

2. Compensation and Payments

Both Clause 26(2)(b) and Section 28(ii) address compensation or payments related to termination or modification of management, office, or agency. Clause 26 expands the scope by including compensation for contracts and explicitly mentions payments for vesting management in the government or government-controlled corporations, as seen in Clause 26(2)(c). This is a refinement of Section 28(ii)(d), providing clearer guidance on government-related compensations.

3. Income from Associations

Clause 26(2)(d) and Section 28(iii) both include income derived by trade or professional associations from services performed for members. The language remains consistent, indicating no substantive change in this area.

4. Export Incentives

Clause 26(2)(e) consolidates various export incentives such as input license profits, cash assistance, duty drawback, and duty remission. This is similar to Section 28(iiia)-(iiie), but Clause 26 provides a more streamlined and unified approach to export incentives, potentially simplifying compliance and interpretation.

5. Benefits and Perquisites

Clause 26(2)(f) and Section 28(iv) both address benefits or perquisites arising from business or profession. The new clause maintains the essence of the existing provision while ensuring clarity by explicitly mentioning cash and kind benefits, reflecting modern business practices where non-monetary benefits are prevalent.

6. Partner's Income

Clause 26(2)(g) aligns with Section 28(v), addressing income received by a partner from a firm. The provisions are consistent, ensuring continuity in the treatment of partner income.

7. Non-Compete Agreements

Clause 26(2)(h) and Section 28(va) both cover sums received under non-compete agreements. The new clause includes specific exclusions, such as sums related to capital gains and Montreal Protocol compensations, enhancing clarity and aligning with international agreements.

8. Keyman Insurance Policy

Both Clause 26(2)(i) and Section 28(vi) include sums received under a Keyman insurance policy. The provisions remain consistent, reflecting the importance of such policies in business risk management.

9. Inventory Conversion

Clause 26(2)(j) and Section 28(via) address the fair market value of inventory converted into capital assets. The provisions are similar, ensuring a consistent approach to inventory valuation changes.

10. Capital Asset Transactions

Clause 26(2)(k) and Section 28(vii) cover sums received from transactions involving capital assets. The new clause maintains the existing framework, with minor adjustments for clarity.

11. Speculative Transactions

Clause 26(3) and Section 28 Explanation 2 both recognize speculative transactions as distinct businesses. The provisions are consistent, ensuring clarity in the treatment of speculative activities.

12. Income from House Property

Clause 26(4) and Section 28 Explanation 3 exclude income from letting out residential property from business income. The provisions are aligned, ensuring consistency in property income treatment.

Practical Implications

The introduction of Clause 26 in the Income Tax Bill, 2025, has several practical implications for businesses and professionals. The refined definitions and inclusions aim to reduce ambiguities and enhance compliance. Businesses may need to reassess their accounting practices, especially concerning export incentives and non-monetary benefits. The alignment with international agreements, such as the Montreal Protocol, reflects a move towards global tax compliance standards.

Comparative Analysis

Clause 26 of the Income Tax Bill, 2025, and Section 28 of the Income-tax Act, 1961, share several similarities, reflecting a continuity in the taxation framework for business income. However, Clause 26 introduces refinements and clarifications that address modern business practices and international agreements. The shift in terminology, such as "tax year," may have implications for accounting periods and fiscal planning. The consolidation of export incentives and explicit exclusions for non-compete agreements demonstrate an effort to streamline and clarify the tax code.

Conclusion

Clause 26 of the Income Tax Bill, 2025, represents a significant step towards modernizing the taxation of business income in India. While maintaining the essence of Section 28 of the Income-tax Act, 1961, it introduces necessary refinements to align with contemporary business practices and international standards. Businesses and professionals must stay informed about these changes to ensure compliance and optimize their tax strategies. Future developments may focus on further clarifications and adjustments to address any emerging issues in the implementation of Clause 26.

 


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Clause 26 Income under head "Profits and gains of business or profession"

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Acts Income Tax