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Circulars Central 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.
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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.
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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.
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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.
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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.
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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.
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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.
Circulars Central 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.
Circulars Central 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.
Circulars Central 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.
Circulars Central 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.
Circulars Service 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.
Circulars Service 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.
Circulars Service 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.
Circulars Service 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.
Circulars Service Tax
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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.
Circulars Service 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.
Circulars Service Tax
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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.
Circulars Service Tax
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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.
Circulars Service Tax
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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 XI "RECOGNISED PROVIDENT FUNDS" 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 XI - RECOGNISED PROVIDENT FUNDS

Income-tax Act, 2025

At a Glance

These two texts are versions of Schedule XI dealing with recognised provident funds, approved superannuation funds and gratuity funds: Document 1 is titled "SCHEDULE-XI of Income-tax Act, 2025" (Act version) and Document 2 is titled "Income Tax Bill, 2025 - Old Version" (Bill - old). They are largely congruent substantively but contain drafting differences: textual refinements, cross-reference variations, and at least one change in statutory reference governing "Government securities." Impacted parties include employers, trustees of funds, employees participating in such funds, tax authorities and the Board (Rule-making body). No effective date is stated in the texts provided.

Background & Scope

Statutory hook: Schedule XI [See section 2(91)] (recognised provident funds; approved superannuation and gratuity funds) as part of the Income-tax law corpus. The Schedule sets out recognition/approval regimes, definitions, conditions for recognition/approval, tax treatment of contributions/accumulations, reporting and procedural obligations, powers of the Board to make rules, and appeals against adverse administrative orders. Definitions provided include "approving authority", "employer", "employee", "contribution", "balance to the credit of an employee", "annual accretion", "accumulated balance due to an employee", "regulations of a fund" and "salary". No definitions of "Board", "Fund Commissioner" or effective dates are provided within the Bill text.

Statutory Provision Mode

Text & Scope

The document is SCHEDULE-XI concerning recognised provident funds, approved superannuation funds and gratuity funds. It is presented as Part A (Recognised Provident Funds), Part B (Approved Superannuation Funds and Gratuity Funds), and Part C (rule-making powers). The Schedule operates under the Income Tax Bill/Act framework (See section 2(91)). Coverage extends to recognition and approval of funds, conditions for recognition/approval, tax treatment of contributions, interest and accumulated balances, accounts and reporting requirements, appeals against recognition/approval decisions, and Board rule-making powers. The Schedule excludes funds governed by the Provident Funds Act, 1925.

Interpretation

The text frames legislative intent to regulate tax consequences of employer and employee contributions to employment-related retirement funds while permitting administrative oversight through an "approving authority" (Principal Chief Commissioner/Chief Commissioner/Principal Commissioner/Commissioner) and rule-making by the Board. The drafting emphasises:

  • Recognition/approval is discretionary, conditional and revocable by administrative authority.
  • Tax treatment is tied to compliance with specified structural conditions (trust form, vesting, nature of fund assets, payment/withdrawal rules, and residency/employee scope).
  • Where conditions are not met (or not applicable), ordinary tax rules apply (e.g., accumulated balances may be included in total income and treated as salary in certain contexts).

Exceptions/Provisos

The Schedule contains several provisos and relaxations:

  • Paragraph 1: Exclusion - Schedule does not apply to funds covered by the Provident Funds Act, 1925.
  • Part A paragraph 5: Approving authority may relax conditions (e.g., funds maintained by employers with principal place of business outside India provided <=10% employees outside India; special contribution rules for employees serving in armed forces or national service; retention of accumulated balances on employee request; special relaxation for low-salary employees and contingent bonuses).
  • Part A paragraph 8: Exclusion of accumulated balance from total income when continuous service >=5 years or termination for specified causes; transfer to recognised fund or notified pension scheme also qualifies.
  • Part B paragraph 3: Approval for superannuation/gratuity funds requires irrevocable trust, >=90% employees in India and payment of benefits in India, among other conditions.
  • Part C: Rule-making constrained by statutory limits (e.g., no rule can require more than 50% of fund money to be invested in government securities - note differing statutory source in drafts).

Illustrations

  • Example 1: An employee with continuous service of six years receives accumulated balance on cessation of employment - the accumulated balance is excluded from the employee's total income under paragraph 8(1)(a).
  • Example 2: An employer contributes 15% of an employee's salary to a recognised provident fund; the portion exceeding 12% (i.e., 3%) is "deemed to have been received by the employee" and included in his total income for that tax year under paragraph 6.
  • Example 3: A provident fund is recognised but a portion of its assets includes capital gains from transfer of capital assets - such gains are permitted fund components under paragraph 4(e)(v).

Interplay

The Schedule expressly interacts with:

  • Provident Funds Act, 1925 - funds under that Act are excluded from this Schedule.
  • Employees' Provident Funds and Miscellaneous Provisions Act, 1952 - paragraph 4(f) ties eligibility to establishments covered u/s 1(3) or notified u/s 1(4) of that Act, and to exemptions u/s 17 schemes.
  • Other tax provisions - paragraph 6 links to rates fixed by Central Government by notification for interest treatment; paragraph 10 invokes Chapter XIX-B procedural rules for tax deduction at source (TDS) as if the balance were salary.
  • Rule-making restrictions reference a statute governing "Government securities" (the Bill and Act texts differ as to which statute supplies the definition), which affects investment regulation under Part C.

Differences between SCHEDULE-XI of Income-tax Act, 2025 and SCHEDULE-XI of Income Tax Bill, 2025 - Old Version

  • Language and drafting variances: The Act text (Document 1) uses slightly different phrasing in definitions (e.g., "credited by or on behalf of any employee out of his salary, or by an employer out of his own funds" vs. Bill text "credited by or on behalf of any employee from his salary, or by an employer from his own funds"). These are drafting differences only and do not change substantive meaning.
    • Practical impact: Minimal; no change in legal effect.
  • Terminology for certain clauses and cross-references: In Part C (power to make rules), Document 1 cites "Government Securities Act, 2006" and refers to "section 2(f) of the Government Securities Act, 2006"; Document 2 references "section 2 of the Public Debt Act, 1944" (or earlier draft language). The Bill (Document 2) also contains editorial footnotes and alternative wording such as "as prescribed" vs "may be prescribed" in some places.
    • Practical impact: Potentially material for interpretation of investment limits (i.e., which statutory definition of "Government securities" applies). If the Act adopts the Government Securities Act (2006) definition, that may differ from the Public Debt Act (1944) definition used in the Bill; this affects which instruments qualify as government securities for the 50% investment cap and could affect trustees' permitted investments.
  • Substantive alignment and rewording of specific paragraphs: In some paragraphs the Act clarifies or restructures language (for example, paragraph 5(3) in Document 1 states "Irrespective of anything contained in paragraph 4(e) or (i),-" while Document 2 states "Irrespective of anything contained in paragraph 4(e) or paragraph 4(i),-".) These are editorial only.
    • Practical impact: None substantive; only formatting/drafting clarity.
  • Headings, numbering and minor content differences: Document 1 uses headings such as "Accounts of recognised provident funds.- (1) The accounts..." while Document 2 uses similar headings but sometimes adds slight wording changes (e.g., "Appeal" vs "Appeals", "Liabilities of trustees on cessation of approval" vs "Liability of trustees on cessation of approval").
    • Practical impact: Procedural or interpretive impact is negligible unless an amended heading reflects a legislative intent to change multiplicity (e.g., singular/plural) - but the text of paragraphs remains substantively the same.
  • Cross-references to other Schedules/Sections and Table references: Document 1 refers to "Schedule II (Table: Sl. No. 8)" in Part B para 7; Document 2 also references Schedule II (Table: Sl. No. 8) but a footnote corrects some earlier drafting errors elsewhere. There is no material difference in the substantive treatment.
    • Practical impact: None substantive; only a drafting correction in the Bill had been noted.
  • Rule-making clause references to Board powers and section 534: Document 1 ends Part C with "All rules made under this Part shall be subject to section 534." Document 2 likewise ends with "Rules to be subject section 534.-All rules..." The Bill includes a minor textual difference in citation of the enabling section for rules (Public Debt Act vs Government Securities Act), as noted above.
    • Practical impact: The practical effect is to confirm executive rule-making remains subject to section 534; no substantive change beyond the securities definition difference flagged earlier.

Practical Implications

  • Compliance and risk areas: Trustees and employers must ensure funds comply with structural conditions (trustee vesting, non-revocability, permitted assets, payment rules, employee/residency thresholds) to secure recognition/approval and preserve tax exemptions. Failure may expose accumulated balances to inclusion in employee's taxable income and create TDS obligations under Chapter XIX-B.
  • Record-keeping/evidence: The Schedule requires maintenance of prescribed accounts, availability of records for inspection and provision of abstracts to the Assessing Officer. Trustees should retain clear records of employee contributions credited, employer contributions, interest calculations, transfers between funds, and documentation supporting conditions for exemption (e.g., proof of continuous service, reasons for termination).
  • Investment compliance: Trustees must monitor permitted investments and the 50% government securities cap in rules - attention is required to which statutory definition of "government securities" is applied (see differences noted above).

Key Takeaways

  • The Schedule conditions tax-favourable treatment on strict structural and operational criteria for provident, superannuation and gratuity funds.
  • Employer contributions above specified thresholds (12% for provident funds) and excess interest credited at rates above notified ceilings are taxable in the hands of employees.
  • Recognition/approval is administratively controlled and revocable; trustees must comply with information, accounts and reporting obligations and face inspection and appeal procedures.
  • Relaxations exist for overseas employer funds (<=10% employees outside India), armed forces service, retention of transferred balances, and low-salary employees - but only at approving authority's discretion and subject to rules.
  • When recognition/approval is accorded to funds with pre-existing balances, transferred balances may be brought into tax in the tax year recognition takes effect, subject to Board rules and possible summary calculation in accounting difficulty cases.
  • Trustees remain potentially liable for tax consequences even after cessation of approval/recognition in respect of payments attributable to earlier periods.
  • Minor drafting differences between Bill and Act versions are mostly editorial; the notable substantive drafting difference concerns which statute defines "government securities" for investment limits, affecting permissible investments.

Full Text:

SCHEDULE XI - RECOGNISED PROVIDENT FUNDS

Topics

Acts Income Tax