Budget 2016: Black money haunts the NaMo Govt

The Black Money Act (the Act) had been promulgated with the intention to pursue black money stashed overseas. The Act levies tax at the rate of 30% on any undisclosed foreign income and assets held abroad by a person who is ordinarily resident in India. Additionally, the act provides for a penalty equivalent to three times the value of tax. Therefore, the total tax exposure can be as high as 120%. Further, the incumbent may be subject to imprisonment for a maximum term of 10 years.

With a view to provide relief to the taxpayer and to encourage him/her to disclose their undeclared foreign income and assets, the Act provided for a one-time compliance window for declaration of undisclosed foreign income and assets by the taxpayer. Upon declaration, the taxpayer was liable to tax at the rate of 30% of the fair market value of the assets and a penalty of 100% of the tax, bringing the tax rate to 60% of the value of the assets. It was also clarified that the contents of the declaration will be used as evidence against the taxpayer under the Income Tax Act, 1961, the Wealth Act, 1957, or Foreign Exchange Management Act, 1999 and the value of the assets will not be chargeable to wealth tax. The time period for declaration expired on 30 September 2015.

Black money: The current scenario

However, the one-time relief received a tepid response and as per the government announcement, it received details of undisclosed foreign assets worth Rs3,770 crore from 638 declarants which translates into an average of INR6 crore per declarant. However the Revenue Secretary Hasmukh Adhia in a press conference on October 6, revised the figure from INR3,770 crores to INR 4147 crores. The miserly value of declaration further strengthened the belief that many of the big evaders have chosen not to avail the benefit of the compliance window.

There are many reasons for the defeated response to this one-time opportunity. Lack of trust that the information provided may not remain confidential has been cited as the major reason for people not opting for this route. The government laid down stringent penal provisions and achieved its objective of creating fear in the minds of people, thereby acting as a deterrent for future creation of black money. But the existing evaders were also fearful that the declarations made by them may be used against them under some other law.

Another major reason for people to back out was the possibility of a probe into interrelated transactions, with some of the people involved in a transaction willing to make a declaration, while the others may choose not to declare. Further, there also exists the possibility of routing money into India through the stock market.

In addition to the above, many other reasons such as insufficient time provided to make the declaration, a steep tax rate of 60 per cent (including penalty) and above all a lack of clarity on the interpretation of certain provisions of the Act, have led to people not opting for the one-time option.

There are numerous estimates of the amount of black money stashed abroad, ranging from 10 to 100 per cent of India's GDP. As per CBI estimates, Indian black money amounts to $500 billion.

Therefore a problem this large, cannot be resolved through a single Act. An effective all round strategy is required to be formulated and struck from all directions.

What can the Govt do?

One of the biggest factors for creation of black money has always been high rates of taxation. The Finance Minister is his last full-budget made a commitment to bring down the corporate tax rate to 25% over the next four years. A reasonable tax rate can serve as a big incentive for people to pay tax and, thereby automatically curbing black money creation.

Further, the government has entered into several bilateral and multi-lateral agreements with several countries for automatic exchange of information about Indian account holders in their banks. As a consequence of these agreements, banks are adopting a cautious approach while opening back accounts of Indian residents. Some are even going to the extent of seeking an undertaking/CA certificate certifying that the money proposed to be deposited is in compliance with Indian laws.

Another constructive measure which may act as a deterrent for creation of black money is the requirement of quoting PAN for cash transactions beyond a certain threshold.

Apart from the measures being taken by the government, some trends emerging on account of a change in life style of the urban population, such as increased use of plastic money, opening of a large number of payment gateways, internet banking and e-commerce are expected to bring about more transparency in transactions.

Further, black money creation and corruption at various levels go hand in hand. One cannot think of curbing black money creation without curbing corruption. Therefore, the government in its effort to control foreign based and domestic black money should take effective punitive action reduce corruption and curb black money creation.

Finally, it is only through a combination of events and actions on the part of the government and people at large, can India’s dream of achieving a black money free and prosperous economy. It is a transition in which the gestation period is expected to be very long.

The article has been authored by Prashant Kapoor, partner, M&A Tax, and Suvira Agarwal, technical director, KPMG in India. The views and opinions expressed herein are those of the author and do not necessarily represent the views and opinions of the organisation.
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