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      Income Tax

      Comparison of Section 210 "Tax on income of Foreign Institutional Investors from securities or capital gains arising from their transfer." between the Income-Tax Act, 2025 (as passed) and the Income-Tax Bill, 2025 (as originally introduced)

      5 September, 2025

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      Section 210 Tax on income of Foreign Institutional Investors from securities or capital gains arising from their transfer.

      Income-tax Act, 2025

      At a Glance

      Two texts of a provision titled "Tax on income of Foreign Institutional Investors from securities or capital gains arising from their transfer" are presented: (1) Section 210 of the Income-tax Act, 2025 (consolidated/authoritative statutory version) and (2) Clause 210 of the Income Tax Bill, 2025 - Old Version (legislative draft). The provision prescribes special tax treatment and rates for specified funds and Foreign Institutional Investors (FIIs) on income from securities and capital gains. Affected parties: Foreign Institutional Investors, specified funds, and, indirectly, Indian revenue authorities and intermediaries administering tax withholding/compliance. Effective date / decision date: Not stated in the document.

      Background & Scope

      Statutory hooks: The provision is located among "Special provisions relating to non-residents and foreign company." It cross-references sections 173(c), 196, 198, sections 28-61/26-61 (depending on text), section 72(6), Chapter VIII and section 93(1)(a)/(e), Schedule VI, and section 2(h) of the Securities Contracts (Regulation) Act, 1956. Definitions provided in the text: "Foreign Institutional Investor" (to be specified by Central Government notification), "permanent establishment" (as in s. 173(c)), "securities" (as in s. 2(h) of the SCRA, 1956), and "specified fund" (meaning assigned in Schedule VI [Note 1]). The provision divides income into specified categories (income in respect of securities; short-term and long-term capital gains of different types) and prescribes specific tax rates for each category; remaining total income is taxed at rates "in force" or as "income-tax chargeable" (wording differs between texts). The provision also contains rules on applicability to specified funds (attributable to units held by non-residents), carve-outs for investment divisions of offshore banking units, denial/allowance of deductions, non-application of s.72(6), and definitional clauses.

      Statutory Provision Mode

      Text & Scope

      The provision applies to an assessee that is a "specified fund" or "Foreign Institutional Investor" and prescribes that the aggregate tax payable is computed by applying fixed rates to specific categories of income listed in a table. The table entries are: (1) income in respect of securities (other than units under s.208) - 20% (FII) / 10% (specified fund); (2) short-term capital gains (other than those under s.196) from transfer of such securities - 30%; (3) short-term capital gains under s.196 - 20%; (4) long-term capital gains (not under s.198) from such transfers - 12.5%; (5) long-term capital gains under s.198 exceeding Rs.125,000 - 12.5%; (6) total income as reduced by items 1-5 - taxed at rates in force / income-tax chargeable (textual variance between documents). The section prescribes computation limits for specified funds (attributable to units held by non-residents), special application to investment divisions of offshore banking units fulfilling Schedule VI criteria, denial of certain deductions where gross total income consists only of category (1), transitional treatment of gross total income for deduction computations, and exclusion of s.72(6) for specified capital gain computations. Definitions for key terms are set out in the section.

      Interpretation

      The text manifests an intent to subject FIIs and specified funds to specific, segregated tax treatment for securities-related income and capital gains, isolating such income categories and applying fixed rates rather than ordinary rates. The provision requires segregating income categories to compute tax and prescribes that when income consists only of securities income, many routine deductions are not available. The requirement that specified funds limit application to income attributable to units held by non-residents indicates intent to tax only the non-resident-linked share of a specified fund's income under this special regime.

      Exceptions/Provisos

      Notable carve-outs and conditions in the text: (a) For specified funds, application is limited to income attributable to units held by non-residents (calculation method to be prescribed). (b) If a specified fund is an investment division of an offshore banking unit that meets Schedule VI criteria, the section applies to the income attributable to that investment division (calculation as prescribed). (c) Where gross total income consists solely of securities income (Table Sl. No.1), deductions under listed sections/chapters are disallowed. (d) Where gross total income includes any of the Table Sl. No.1-5 incomes, the gross total income must be reduced by such amounts and deductions under Chapter VIII allowed as if the reduced gross total income were the gross total income. (e) Section 72(6) shall not apply to computation of capital gains in Sl. No.2-5. These provisos are explicit in the texts provided.

      Illustrations

      • Example 1: An FII earns dividend/interest (income in respect of securities) of X and short-term capital gains (not under s.196) of Y. Tax on X will be computed at 20%; tax on Y at 30%; any remaining income will be taxed at rates in force (or as the act prescribes). (Consistent with text; numerical figures are illustrative only.)
      • Example 2: A specified fund has gross total income consisting only of securities income; it will be denied deductions u/ss 28-58 (or 26-61 depending on text) and Chapter VIII as specified. (Consistent with text.)
      • Example 3: A specified fund's offshore banking unit investment division that meets Schedule VI criteria will have the provision apply only to income attributable to that division as prescribed. (Consistent with text.)

      Interplay

      The provision cross-refers to multiple sections and Schedule VI; it modifies the usual interaction between taxable income categories and deductibility by excluding certain deductions where income is only securities income and by adjusting gross total income for deduction calculations where specified categories are present. It also excludes s.72(6) for capital gain computation for the identified categories. References to definitions in other statutes (Securities Contracts (Regulation) Act) mean that the interpretation of "securities" depends on that Act. The document does not specify the detailed manner of calculating attributable income for specified funds - it states "as may be prescribed" or "as prescribed," indicating reliance on subordinate rules; those rules are Not stated in the document.

      Differences between the Two Texts and Practical Impact

      • Wording and formatting: The Bill (Clause 210Old Version) and the Section 210 text are substantively similar in structure and rates. Differences are mainly textual/corrective (e.g., phrasing "shall be the aggregate of the amounts mentioned in column C thereof" vs. "shall be the aggregate of income-tax computed at the rate specified in the column C applied on the corresponding income specified in column B").
        • Practical impact: No substantive change in tax incidence; the statutory version clarifies computation method by explicit reference to applying the rate to corresponding income.
      • Denial of deductions - cross-references differ: The Bill refers to denial of deductions under "sections 26 to 61 or section 93(1)(a) or (e) or under Chapter VIII;" the Section 210 text refers to "sections 28 to 58, 60 and to 61 or section 93(1)(a) or (e) or under Chapter VIII."
        • Practical impact: The statutory text's citation differs in range; this is potentially substantive if it includes/excludes particular sections. The document does not explain rationale for the change. Which precise sections are intended and whether any substantive deduction scope changed is Not stated in the document.
      • Offshore banking unit carve-out description: The Bill describes the condition as two-part (is investment division of an offshore banking unit as specified in Schedule VI (Table: Sl. No. 1) and fulfils the conditions referred to in Schedule VI (Note 1)). The statutory Section 210 phrases it as application where the specified fund is an investment division of an offshore banking unit and then refers to clause (g)(ii) of Note 1 of the Table in Schedule VI as a Category-I portfolio investor under SEBI (FPI) Regulations, 2019; calculation to be prescribed.
        • Practical impact: The statutory text specifically ties the carve-out to the SEBI FPI Regulations and to a category reference, potentially narrowing or clarifying the class of offshore banking divisions covered. The document does not state the policy reason or whether the scope widened or narrowed numerically.
      • Final line on taxation of remaining income: The Bill's Table Sl. No.6 says "Income-tax chargeable on such income." The statutory version says "Rates in force."
        • Practical impact: The statutory wording "Rates in force" may signal that the residual income is taxed under the general rates applicable to the assessee, while the Bill wording is equivalent but less explicit. No change to substantive outcome is evident from the document.
      • Definitions: Both texts define key terms similarly; in one the phrase is "means an investor so specified" and in the other "means such investor as specified in a notification."
        • Practical impact: Minor drafting difference without clear substantive impact in the documents provided.

      Practical Implications

      • Segregation and computation: Assessing FIIs and specified funds must segregate income into specified categories and apply prescribed fixed rates to those categories. Records must support classification of income as "income in respect of securities," short-term or long-term capital gains, and whether such gains fall u/ss 196/198. (The precise calculation methods for attribution and exclusions are Not stated in the document.)
      • Deduction denial: Where gross total income consists only of securities income, many deductions are disallowed; where mixed, taxpayers must reduce gross total income by the specified incomes to compute allowable deductions-this requires robust internal accounting to separate securities income from other income. The exact list of disallowed sections varies slightly between texts and the statute should be followed.
      • Specified fund attribution: Taxation of a specified fund under this section only applies to income attributable to units held by non-residents (other than a PE). The method of attribution is to be prescribed; absent the rules in the document, practical compliance remains uncertain. Not stated in the document: the prescribed method and timing for attribution.
      • Offshore banking unit division: Investment divisions meeting Schedule VI/SEBI criteria are addressed specifically; such divisions will need to confirm whether they meet the referred criteria to determine applicability. Not stated in the document: procedural proof/evidence to demonstrate eligibility under Schedule VI/SEBI.
      • Capital gains computation: Section 72(6) (relating to set-off of losses in certain situations) is excluded for the listed capital gains categories, affecting the ability to carry forward or set off certain losses in these computations. Tax practitioners must note this exclusion when advising on capital gain computations for FIIs/specified funds.

      Key Takeaways

      • The provision prescribes fixed tax rates on specified securities income and capital gains for FIIs and specified funds, with residual income taxed at general rates.
      • Specified funds are taxed under this section only to the extent of income attributable to units held by non-residents; calculation method to be prescribed (Not stated in the document).
      • Certain deductions are disallowed where income consists solely of securities income; where mixed, adjustments to gross total income are required before permitting Chapter VIII deductions.
      • Section 72(6) does not apply for computing the identified capital gains categories.
      • Textual differences between the Bill and the statutory section are primarily drafting clarifications and specific references (e.g., SEBI FPI Regulations) that refine scope but do not materially alter the rate structure in the documents provided.
      • Several operational details (method for calculating attributable income, procedural/compliance steps for offshore investment divisions, and precise list of disallowed deduction sections where wording differs) are Not stated in the document and depend on prescribed rules or subordinate instruments.

      Full Text:

      Section 210 Tax on income of Foreign Institutional Investors from securities or capital gains arising from their transfer.

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