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    CircularsCentral Excise
    Authority to inspect the prosecution work and performance? FOR EVASION OF SERVICE TAX OR CENTRAL EXC...
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    Whether prosecution once launched can be compound ? FOR EVASION OF SERVICE TAX OR CENTRAL EXCISE :
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    CircularsCentral Excise
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    Inspection of prosecution work: ensure compliance with prosecution guidelines and address pendency and non-compliance in tax enforcement.
    Inspection of prosecution work requires the Director General, Directorate of Performance Management and Chief Commissioners to inspect Commissionerates to verify scrupulous compliance with the Circular's guidelines for launching prosecution. Inspections must examine reasons for pendency and non-compliance in prosecution cases and ensure recording of statistical data during field visits to support oversight of prosecution performance.
    CircularsCentral Excise
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    Compounding of offences: administrative authorities may permit settlement by payment and written offer when prosecution is initiated.
    Compounding of offences for evasion under central excise and service tax allows the Principal Chief/Chief Commissioner to compound offences on payment of the compounding amount; Section 9A(2) of the Central Excise Act as applied to service tax via section 83 of the Finance Act authorises this, and circulars require that persons against whom prosecution is initiated or contemplated be informed in writing of the offer to compound.
    CircularsCentral Excise
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    Prosecution guidelines: sanctions granted after the circular govern cases regardless of offence date, with sanctioned cases reviewed.
    Prosecution guidelines apply to all cases where sanction for prosecution is accorded after the circular's issue date, and such cases must be prosecuted according to the circular regardless of the offence date. Sanctioning authorities must review cases in which prosecution has been sanctioned but no complaint filed, reassessing them against the circular's provisions before any complaint is presented.
    CircularsCentral Excise
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    Withdrawal of prosecution permitted after final exoneration in parallel quasi judicial proceedings; formal application required to seek withdrawal.
    Withdrawal of prosecution is permitted where identical allegations led to the noticee's exoneration in quasi judicial proceedings and that order is final; the senior tax or investigative leadership shall direct the commissionerate to file an application through the public prosecutor requesting judicial permission to withdraw the complaint in accordance with law and prosecution guidelines.
    CircularsCentral Excise
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    Publication of convicted persons' names may be sought by the department through courts under central excise and service tax law.
    Power exists under the Central Excise statutory framework, as applied to service tax by the Finance Act, to publish the name and place of business of persons convicted under the relevant enactments; courts have exercised this power sparingly, and the department is directed to request courts to invoke this publication power in deserving cases for all convicted persons.
    CircularsCentral Excise
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    Prosecution monitoring: Principal Commissioners must track and review cases monthly to ensure satisfactory progress.
    The Principal Commissioner/Commissioner must monitor prosecution files monthly, take corrective action where necessary, and inspect the prosecution register in the Prosecution Cell at least once every quarter. Designated supervisors in zonal investigative units must oversee prosecution work. Prosecution registers in prescribed formats are to be maintained, regularly updated and kept in the Commissionerate Prosecution Cell and in zonal units to enable systematic tracking of prosecution cases.
    CircularsCentral Excise
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    Prosecution Sanction: mens rea and evidentiary sufficiency determine whether tax evasion prosecution proceeds.
    Prosecution proposals for service tax or excise evasion must be examined and forwarded by the adjudicating authority to the sanctioning Principal Chief/Chief Commissioner or Principal/Director General; prosecution requires evidence of mens rea and should not be launched in purely technical or interpretation disputes. Criminal standards (beyond reasonable doubt) must be weighed separately from adjudication findings; prosecution may be initiated before adjudication in serious cases. Investigation reports must be prepared within one month and sanction obtained prior to filing; authorised officers must secure exhibits and coordinate with public prosecutors, with reporting obligations for delays and monthly updates to the sanctioning authority.
    CircularsCentral Excise
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    Sanction for prosecution: designated senior authorities must authorize and formalize prosecution before filing criminal complaints.
    Sanction for prosecution is required before initiating criminal complaints in service tax and central excise matters. The Principal Chief/Chief Commissioner must sanction routine cases, while the Principal Director General/Director General, CEI must sanction cases investigated by the Directorate General of Central Excise Intelligence. The sanctioning authority issues a written order and forwards it to the Commissionerate for expeditious filing of the complaint.
    CircularsCentral Excise
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    Habitual evasion: prosecution permitted where repeated confirmed demands and substantial cumulative tax evasion or credit misuse.
    Prosecution may be initiated against a company or assessee classified as a habitual evader where multiple confirmed demands (at first appellate level or above) for Central Excise duty or Service Tax, or findings of Cenvat credit misuse arising from fraud or suppression, occur within a prior period and the cumulative duty or tax evaded or credit misused meets a substantial monetary threshold; the Offence Register (335J) may be used to identify such assessees.
    CircularsCentral Excise
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    Prosecution threshold: prosecution requires evasion exceeding the prescribed monetary limit before proceeding for excise or service tax offences.
    Prosecution for evasion of Central Excise duty or Service Tax, or misuse of Cenvat credit in relation to offences specified under sub section (1) of Section 9 of the Central Excise Act, 1944 or sub section (1) of Section 89 of the Finance Act, 1994 should normally not be launched unless the evasion meets or exceeds the prescribed monetary threshold set out in the departmental guideline.
    CircularsCentral Excise
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    Corporate criminal liability: officers and partners can be prosecuted for company service tax or excise evasion.
    Persons in charge of and responsible for a company's business are prosecutable alongside the company for service tax or central excise evasion; where an offence by a company is shown to involve the consent, connivance or neglect of a director, manager, secretary or other officer, that individual is deemed guilty. The statutory definition of company includes firms and associations and treats a partner as a director, extending corporate liability principles to service tax prosecutions.
    CircularsService Tax
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    Swachh Bharat Cess applicability: applies to all taxable services except services fully exempt or not leviable to service tax.
    Swachh Bharat Cess applies to all taxable services except those that are fully exempt under a statutory notification or are otherwise not leviable to service tax; the cess was imposed by government authority to cover the taxable service base while preserving existing exemptions and non leviability rules.
    CircularsService Tax
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    Cenvat credit reversal does not require separate reversal of Swachh Bharat Cess under the applicable rule per FAQ.
    The circular states that Swachh Bharat Cess is not integrated into the Cenvat credit chain; the reversal under Rule 6 requires payment based on the value of exempted services, and therefore a separate reversal of Swachh Bharat Cess is not required when reversing credit under Rule 6 of the Cenvat Credit Rules.
    CircularsService Tax
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    Point of taxation determines Swachh Bharat Cess liability; payment date triggers reverse charge cess on taxable service.
    Point of taxation governs SBC liability for reverse-charge services: the date of payment is the point of taxation and SBC is payable on the value of the taxable service at the prescribed rate when consideration is paid to the service provider.
    CircularsService Tax
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    Swachh Bharat Cess option for services under specified service-tax rule; SBC computed by prescribed formula and fixed for financial year.
    Persons liable to pay service tax under the sub rules of rule 6 may elect to discharge Swachh Bharat Cess by applying a prescribed computation to their Service Tax liability; once exercised the election must be applied uniformly to such services and cannot be changed during the financial year.
    CircularsService Tax
    Show AI Summary
    Swachh Bharat Cess on restaurant services is calculated on the value determined under Service Tax valuation rules, creating a combined levy.
    Swachh Bharat Cess on restaurant services is payable on the taxable value determined under the Service Tax (Determination of Value) Rules, 2006; for restaurants, eating joints or messes with any air-conditioning or central heating, the cess and service tax are each applied to the portion of the total charge treated as taxable under those rules, and the combined levy is the sum of the service tax rate and the cess rate applied to that taxable portion.
    CircularsService Tax
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    Service tax calculation for services under Rule 2A/2B/2C: apply combined service tax and SBC to the rule determined value.
    Service tax and Swachh Bharat Cess on services governed by Rule 2A, 2B or 2C are computed by multiplying the combined service tax plus SBC rate by the value determined under the relevant rule. For works contract services, applying the combined rate to the rule specified taxable fraction of the contract value produces the operative tax liability; the same approach applies to restaurant and outdoor catering services.
    CircularsService Tax
    Show AI Summary
    Point of taxation for Swachh Bharat Cess: levy applies where service, invoice and payment occur on or after commencement date.
    Because SBC is a new levy on taxable services not in the Negative List or wholly exempt, the Point of Taxation Rules determine liability. SBC does not arise where payment and invoice are issued before the levy's commencement or where payment precedes commencement but invoice is issued within the short prescribed period. SBC is chargeable where service provision, invoice issuance and payment occur on or after the commencement date; it also applies if service is provided on or after commencement but payment was received earlier and invoice is not issued within the short post-commencement period.
    CircularsService Tax
    Show AI Summary
    Cenvat credit of Swachh Bharat Cess disallowed; SBC not in Cenvat credit chain and not payable using credits.
    Cenvat credit for the Swachh Bharat Cess (SBC) is not available because SBC is not integrated into the Cenvat credit chain; consequently SBC cannot be claimed as input credit nor paid using credits of any other duty or tax.
    CircularsService Tax
    Show AI Summary
    Swachh Bharat Cess calculation: SBC applies same abatement percentage as service tax, on combined taxable rate.
    Swachh Bharat Cess is to be levied on the same abatement percentage that applies to service tax; the notification prescribing abatement for service tax applies equally to SBC, so the combined rate (service tax plus SBC) is applied to the abated value to determine the effective levy.

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      Comparison of SCHEDULE IV "INCOME NOT TO BE INCLUDED IN TOTAL INCOME OF ELIGIBLE NON-RESIDENTS, FOREIGN COMPANIES AND OTHER SUCH PERSONS" between the Income-Tax Act, 2025 (as passed) and the Income-Tax Bill, 2025 (as originally introduced)

      18 September, 2025

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      SCHEDULE IV - INCOME NOT TO BE INCLUDED IN TOTAL INCOME OF ELIGIBLE NON-RESIDENTS, FOREIGN COMPANIES AND OTHER SUCH PERSONS

      Income-tax Act, 2025

      At a Glance

      Schedule IV (Old Version) to the Income Tax Bill, 2025 lists categories of income that shall not be included in the total income of specified eligible non-residents, foreign companies and other persons (see section 11 reference). It matters for non-resident individuals and foreign entities interacting with India (embassies, foreign enterprises, foreign companies, European Economic Community etc.). Effective date or decision date: Not stated in the document.

      Background & Scope

      Statutory hook: SCHEDULE IV is framed under "See section 11" of the Bill. The Schedule sets out tabulated exemptions (column A: serial number; B: income not to be included; C: eligible persons; D: conditions). The Schedule covers diverse categories including interest on NRE accounts, diplomatic remuneration, employees of foreign enterprises, incomes linked to foreign ships, government trainees, royalties/fees for technical services to specified security agencies, offshore banking unit deposits, cruise ship lease rentals, investments by the European Economic Community, and specified crude-oil related receipts to foreign companies. Definitions or explanatory notes: Note 1 (Sl. No. 9) defines "specified company", "holding company" and "subsidiary company"; Note 2 defines "European Economic Community". No other standalone definitions are provided within the Schedule.

      Statutory Provision Mode

      Text & Scope

      The Schedule operates by excluding from computation of total income certain enumerated receipts of eligible non-residents and foreign companies, subject to conditions. Each serial entry specifies (i) the class of income, (ii) the class of eligible person(s), and (iii) conditions that must be satisfied for the income to be excluded. The exclusions are limited to the headings set out in the Table. The Schedule cross-references other statutory instruments: section 2(w) of the Foreign Exchange Management Act, 1999 (for residency definition), section 2(u) of the Special Economic Zones Act, 2005 (for Offshore Banking Unit), and sections of the Income-tax Act, 1961 (for certain sub-sections listed at Sl. No. 14).

      Interpretation

      Legislative intent, as discernible from textual structure: to provide targeted exemptions for certain foreign-sourced or diplomatically connected incomes, strategically significant commercial arrangements (e.g., crude oil storage/sale by notified foreign companies), and to maintain reciprocity for diplomatic personnel. The Schedule uses notification powers (Central Government) and pre-conditions (e.g., residence outside India, RBI permission, aggregate days of stay) as mechanisms to limit the benefit to particular factual situations. The text indicates that the exemption is conditional rather than absolute, requiring specified factual predicates and administrative notifications.

      Exceptions/Provisos

      Carve-outs and conditions appear in column D against each serial number. Notable conditions include:

      • Sl. No. 1: interest on moneys in a Non-Resident (External) Account in Indian banks as per FEMA and rules.
      • Sl. No. 2: diplomatic/trade commissioner exemption conditioned on reciprocity and staff status (not engaged in business/profession in India).
      • Sl. No. 3 and 4: time-bound presence (90 days aggregate in tax year) and absence of employer's taxable presence in India.
      • Sl. No. 6-7: notifications by Central Government and specified recipient being National Technical Research Organisation for certain royalties/fees.
      • Sl. No. 8: deposit date threshold (on or after 1 April 2005) and Offshore Banking Unit reference.
      • Sl. No. 9: intra-group cruise ship lease rental conditions, and temporal limitation to tax years beginning on or before 1 April 2029.
      • Sl. Nos. 11-13: Central Government notification and agreements/arrangements entered into or approved by Central Government, with national interest consideration, and limitations on activities of the foreign company in India.
      • Sl. No. 14: incomes falling under specified sections of the Income-tax Act, 1961 subject to conditions specified therein.

      Illustrations

      • Example 1: An individual non-resident holding a Non-Resident (External) Account with interest earned thereon - the interest is excluded from total income if the account is maintained as per FEMA and rules. (Directly consistent with text.)
      • Example 2: A non-citizen employee of a foreign enterprise who visits India for 60 aggregate days in the year to provide services for a foreign employer that has no trade or business in India - his remuneration for services rendered during the stay is excluded provided the remuneration is not taxable to the employer under the Act. (Consistent with Sl. No. 3.)
      • Example 3: A notified foreign company stores crude oil in India under a Central Government-approved arrangement and sells the oil to an Indian resident as per the agreement - the income accruing from storage and sale is not included in total income subject to notification. (Consistent with Sl. Nos. 12-13.)

      Interplay

      The Schedule expressly interacts with: FEMA, 1999 (residency definition and NR(E) accounts); Special Economic Zones Act, 2005 (Offshore Banking Units); and referenced sections of the Income-tax Act, 1961 for Sl. No. 14 exemptions. Several exemptions depend on Central Government notification or agreements entered into/approved by the Central Government, indicating administrative coordination between tax authorities and executive departments. No rules or notifications beyond these cross-references are reproduced in the document.

      Differences between SCHEDULE IV - Income-tax Act, 2025 (Document 1) and Income Tax Bill, 2025 - Old Version (Document 2)

      • Textual corrections and punctuation: Document 1 contains minor editorial differences (for example, punctuation and phrasing around clauses (a)-(d) under Sl. No. 11 and Sl. No. 12 are slightly more concise).
        • Practical impact: purely editorial; no substantive change in scope or meaning appears from the texts provided.
      • Minor wording differences on eligibility phrases: e.g., Document 2 in Sl. No. 8 specifies "Non-resident or a person who is not ordinarily resident in India," whereas Document 1 uses "Non-resident or a person who is not ordinarily resident."
        • Practical impact: nominal; contextually both identify same classes of persons; if interpreted strictly, omission of "in India" could raise an interpretive question but the intent remains the same.
      • Variation in presentation of Sl. No. 11 and 13 wording: Document 1 states that the Central Government may notify "any person in India" and that the foreign company and the agreement are notified "having regard to the national interest"; Document 2 requires that "such agreement is entered with the foreign company, having regard to the national interest, and the agreement or arrangement is notified."
        • Practical impact: Document 1 frames notification of the company and agreement slightly differently; both require Central Government notification and national-interest consideration. Substantively the scope of exemption is governed by Central Government notification; any difference is stylistic unless read to alter the sequencing of notification vs. entry of agreement - not expressly stated as a legal difference in the texts.
      • Formatting and small textual insertions: Document 2 contains a stray full stop after the clause in Sl. No. 7(b) and some additional bracket spacing in Sl. No. 14.
        • Practical impact: typographical; no substantive legal consequence discernible from the provided materials.

      Practical Implications

      • Compliance and risk areas: taxpayers and foreign entities must ensure that qualifying conditions (residency status, period of stay, RBI permission, Central Government notification/approval, and absence of trade or business in India) are satisfied and documented before claiming the exclusion. Failure to meet stated conditions risks disallowance and tax exposure.
      • Record-keeping/evidence: maintenance of residency documentation (FEMA definitions), RBI permissions for NR(E) accounts, travel and stay records (to evidence the 90-day threshold), copies of Central Government notifications/agreements, and employer payroll records to show whether employer's income is chargeable in India. For Sl. No. 9, intra-group corporate documentation establishing holding/subsidiary relationships as per Note 1 is relevant.

      Key Takeaways

      • Schedule IV enumerates limited classes of income excluded from "total income" for particular non-residents and foreign entities, subject to explicit conditions and administrative notifications.
      • Most exemptions require factual predicates (residency status, period of presence, non-engagement in business in India) and/or Central Government notification or agreement.
      • Several exemptions are purpose-specific (diplomatic reciprocity, security projects, national-interest crude oil arrangements, cruise ship group structures, EEC investment schemes).
      • Document differences between the Act version and the Bill old version are largely editorial and typographical; no substantive changes are discernible from the texts provided.
      • Taxpayers and advisers should retain documentary evidence of qualifying conditions and track Central Government notifications/approvals relevant to the Schedule.

      Full Text:

      SCHEDULE IV - INCOME NOT TO BE INCLUDED IN TOTAL INCOME OF ELIGIBLE NON-RESIDENTS, FOREIGN COMPANIES AND OTHER SUCH PERSONS

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      ActsIncome Tax