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Act Rules Income Tax
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Digital evidence parity: seized electronic backups treated as books of account, extending tax search powers into virtual spaces.
Clause 261 defines terms governing Chapter XIV search, seizure and requisition powers, treating material seized to include books of account, documents, digital data storage devices, computer systems and specialised programme backups and directing that such material be construed as books of account. It broadly defines computer system and virtual digital space to include cloud and remote servers, social media, online financial platforms and application platforms. The clause identifies the classes of approving, authorised and competent officers and ties the operative date for search or requisition to the last panchnama entry or the actual receipt of books, documents, computer systems or assets.
Act Rules Income Tax
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Power to call for information: tax authority may require relevant records for verification, subject to defined scope of proceeding.
A prescribed income tax authority may issue notices requiring persons to furnish information for verification of information in the authority's possession that is useful for, or relevant to, any inquiry or proceeding under the Act; the authority may specify form, manner and time for compliance and may process and utilise such information under a scheme notified under section 260. The enacted Section 259 adds subsection (3) linking the term "proceeding" to the meaning in section 253, clarifying the definitional scope of notices.
Act Rules Income Tax
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Judicial character of tax proceedings clarified; civil court deeming limited and excludes a specified statutory chapter.
Section 257 deems proceedings before income-tax authorities to be judicial proceedings for specified provisions of the Bharatiya Nyaya Sanhita, 2023, and deems income-tax authorities to be Civil Courts for the purposes of section 215 of the Bharatiya Nagarik Suraksha Sanhita, 2023, but expressly excludes application of that deeming for the purposes of Chapter XXVIII of the Bharatiya Nagarik Suraksha Sanhita, 2023.
Act Rules Income Tax
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Enquiry powers: specified senior income-tax officers authorised to exercise Assessing Officer powers for statutory enquiries.
Section 256 vests enquiry authority in specifically listed senior officers - Principal Director General/Director General, Principal Director/Director, Principal Chief Commissioner/Chief Commissioner, Principal Commissioner/Commissioner and Joint Commissioner - and grants them Assessing Officer-like powers to make enquiries under the Act, including summons and document requisition, while the clause contains no procedural provisos or territorial limits and therefore relies on other statutory or subordinate provisions for operational safeguards and delegation mechanics.
Act Rules Income Tax
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Survey powers over electronic records and premises enable inspection, technical access and limited impoundment for tax compliance verification.
Survey powers authorise entry into premises where business, profession or charitable activities are carried on to inspect books, documents, electronic media and computer systems and to require necessary technical and other assistance including access codes; officers may verify assets and stock, make extracts or copies, record statements on oath, prepare inventories and impound or retain records or computer systems after recording reasons, with retention beyond the initial statutory period requiring prior approval and temporal limits on entry applicable to business and other premises.
Act Rules Income Tax
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Retention limits for seized material clarified, with supervised copying rights and an administrative remedy to challenge extensions.
Clause 251 requires transfer of seized assets and material to the territorial Assessing Officer where the seizing authorised officer lacks jurisdiction, mandates supervised opportunity for the person to make copies or extracts, prescribes statutory retention limits tied to assessment or recomputation events with written reasons and approving authority approval for extensions, and preserves a right to apply to the Board against approvals for extended retention.
Act Rules Income Tax
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Application of seized assets: assets may be applied to recover tax liabilities, subject to explanation-based release and distraint.
The provision authorises recovery from assets seized or requisitioned under search or requisition to satisfy tax liabilities, including penalty and interest (excluding advance tax), aggregating liabilities arising before, during assessments consequent to the search, and those connected to settlement proceedings; the enacted text expressly includes block-period assessments under Part B of Chapter XVI. Release within the statutory period requires the Assessing Officer to be satisfied on the basis of the explanation furnished about nature and source, recovery of existing liabilities, and prior commissioner-level approval, while non-monetary assets are deemed under distraint and may be realised as prescribed.
Act Rules Income Tax
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Power to requisition: tax officers may compel delivery of materials and electronic evidence held by other authorities.
Clause 248 empowers an approving authority to authorise specified tax officers to require delivery of assets, books, documents, electronic information or computer systems held by officers or authorities under other laws where persons served with summonses or notices fail to produce material, where material will be useful to tax proceedings and would not be returned, or where custody assets represent undisclosed income; post-delivery, designated procedural seizure, custody and preservation provisions apply with the requisitioning officer substituted for the authorised officer.
Act Rules Income Tax
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Search and seizure powers expanded to include virtual digital spaces, compelled access and evidentiary presumptions for tax investigations.
Clause 247 authorises income tax officers to enter and search physical premises and virtual digital spaces when records or assets relevant to tax proceedings or undisclosed income are believed to be present, including compelled technical assistance, overriding access codes, copying electronic data, inventory and seizure (excluding stock in trade), and deemed seizure where removal is impracticable; it cross references IT law, applies evidentiary presumptions to found material, and provides limited procedural timelines and approvals while leaving detailed safeguards and rules to be prescribed.
Act Rules Income Tax
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Discovery and production powers: tax authorities may compel evidence and attendance, subject to limited retention safeguards.
The provision confers court-like powers on enumerated income-tax authorities to compel discovery, attendance, examination on oath, production of books and issuance of commissions for tax purposes; it allows certain authorities to exercise these powers even absent pending proceedings, ties investigative authority for senior officers to a jurisdictional nexus and suspicion of concealment, and authorises impoundment and, in the Act, explicit custody and retention of documents subject to a fifteen-day initial limit, recorded reasons and prior sanction for extensions.
Act Rules Income Tax
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Case transfer power: authorities may transfer tax cases with recorded reasons and limited hearing requirements, preserving continuity of proceedings.
A specified income-tax authority may transfer any case between Assessing Officers under its control or, where authorities differ, by agreement or by an order of the Board (or an authority the Board specifies by notification). The authority must record reasons and, "wherever it is possible to do so," afford the assessee a reasonable opportunity to be heard, except for transfers between officers in the same city/locality/place; transfers may occur at any stage and notices already issued need not be re issued. The enacted text consolidates the temporal definition of "case" and makes minor drafting refinements.
Act Rules Income Tax
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Assessing Officer jurisdiction defined by place of business or residence; intra departmental determination and strict time bars follow.
Section 242 defines Assessing Officer jurisdiction vested by directions/orders under section 241(1)-(3): jurisdiction for businesses attaches to the place of business or principal place, and for others to residence. Jurisdictional disputes are to be determined by specified income tax authorities or, where those authorities disagree, by the Board or a Board designated authority. The section bars late challenges to jurisdiction by reference to specified notice periods and assessment completion events, requires AOs to refer unresolved timely challenges for departmental determination before assessing, and preserves AO powers over income within the vested area; the enacted text omits certain cross references present in the originating bill.
Act Rules Income Tax
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Taxpayer's Charter: Board empowered to adopt and direct administration, granting wide administrative discretion over implementation.
Section 240 obligates the Board to adopt and declare a Taxpayer's Charter and to issue orders, instructions, directions or guidelines to other income-tax authorities for its administration; the Board is not defined here and the phrase "as it considers fit" grants wide administrative discretion. The provision is enabling and administrative in character, lacks Charter content, enforcement mechanisms, timelines and definitions of affected authorities, and the practical effect depends on subsequent instruments implementing the Charter.
Act Rules Income Tax
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Board power to issue binding administrative instructions, limited to avoid directing case outcomes and protecting appellate discretion.
The Board is empowered to issue binding orders, instructions and directions to subordinate income tax authorities for uniform administration while being expressly prohibited from directing a specific outcome in any particular case or interfering with appellate officers' discretion. The Board may issue general or special orders to set procedural guidelines, publish them for public guidance, authorise non appellate authorities to admit time barred claims to alleviate genuine hardship, and relax specified procedural requirements where non compliance was beyond the assessee's control, subject to reasons and parliamentary laying of such relaxation orders.
Act Rules Income Tax
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Appointment powers: Central Government may appoint and delegate tax authority appointments, subject to service rules and orders.
Section 237 vests plenary appointment power for income-tax authorities in the Central Government, allows delegation to the Board and specified senior tax officers to appoint officers below the rank of Deputy Commissioner or Assistant Commissioner, and permits Board authorised income-tax authorities to appoint necessary executive and ministerial staff; both delegation and staffing powers are expressly qualified "subject to the rules and its orders regulating the conditions of service of persons in public services and posts."
Act Rules Income Tax
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Tonnage tax reserve requirement ties tax benefits to reinvestment and training; non compliance ends tonnage tax option.
Section 232 requires tonnage tax companies to credit a mandated proportion of book profit from qualifying shipping activities to a Tonnage Tax Reserve Account annually, permitting use of the reserve within a fixed period for acquisition of qualifying new ships or for operating qualifying ships while prohibiting distributions or offshore asset creation; misuse or non utilisation causes apportionment and taxation of the relevant shipping income, and repeated failures in reserve creation or in meeting training and charter in limits lead to cessation of the tonnage tax option. Reporting, separate books and prescribed certificates are required, and several operational details are left to delegated rules.
Act Rules Income Tax
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Tonnage tax election: structured application, limited renewal and extended re entry bar on opting into the regime.
Tonnage tax election requires a qualifying company to apply to the Joint Commissioner in the prescribed form and manner within the statutory initial window; the Commissioner may request documents, must afford a reasonable opportunity to be heard before refusing, and must issue a written order within a fixed decision period. Approval makes the scheme applicable from the tax year of election and keeps the option in force for a defined multi year term; cessation events and a restricted renewal window are specified, and a prolonged bar prevents re entry after voluntary opt out, default, or exclusion.
Act Rules Income Tax
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Exclusion of deductions and losses: tonnage tax confines shipping losses within the tonnage regime, barring cross set off.
The tonnage tax regime confines tax treatment of qualifying shipping operations by treating general loss and deduction provisions as having been applied within each relevant tonnage tax year, prohibiting carry forward or set off of specified losses relating to qualifying ships while under the scheme, and requiring depreciation and pre option loss treatment to reflect deductions as if claimed and allowed; any apportionment of pre option losses must be made on a reasonable basis.
Act Rules Income Tax
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Depreciation allocation for tonnage tax assets: apportioned WDV creates separate qualifying blocks and governs capital gains treatment.
Clause 229 requires first-year depreciation for the tonnage tax scheme to be computed on the tax written down value apportioned between qualifying and non-qualifying ships using book WDV proportions; the apportioned qualifying amount forms a separate block for depreciation, transfers between blocks follow prescribed proportional formulas on change of use, and disposals of qualifying assets are taxed as capital gains with section 74 applied to the qualifying block's WDV.
Act Rules Income Tax
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Relevant shipping income exclusion from book profit narrowed to a specific book profit computation, clarifying tonnage tax scope and compliance.
Relevant shipping income comprises profits from enumerated core ship operations and prescribed incidental activities for a tonnage tax company; incidental receipts above the prescribed threshold are excluded from the tonnage measure and taxed generally. Transfers between tonnage and non tonnage businesses are to be tested at market value or, where impracticable, computed on a reasonable basis by the Assessing Officer. Common costs and depreciation must be reasonably allocated, losses in relevant shipping income are ignored for tonnage computation, and the book profit or loss from relevant shipping activities is excluded from the company's book profit for the specified computation under section 206.

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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