Provisions relating to receipt of Gift from a Foreigner

Provisions relating to receipt of Gift from a Foreigner

An individual in India receives a donation from a foreigner who is not related to him. What would be the tax implication and other statutory compliance related issues?

Foreign Contribution essentially refers to donations in cash or kind when received by any person from any foreign source, whether directly or indirectly, though one or more persons.

As per FC(R) Act, foreign source includes the following;

1. Government of any foreign country or territory and agency of such Government,


2. any international agency not being the United Nations or any of its specialised
   agencies, the World Bank, International Monetary Fund or such other agency
   as Central Government may by notification in Official Gazette specify in
   this behalf,


3. a foreign company within the meaning of section 591 of the Companies Act,
   1956 and also includes




1. a company which is a subsidiary of a foreign company, and


2. a multi-national corporation within the meaning of this Act,




4. A corporation not being a foreign company, incorporated in foreign country
   or territory,


5. A multi national corporation within the meaning of this Act,


6. A company within the meaning of the Companies Act, 1956 if more than one
   half of the nominal value of its share capital is held, either singly or
   in the aggregate by one or more of the following, namely:­




1. Government of foreign country or territory,


2. Citizens of a foreign country or territory,


3. corporations incorporated in a foreign country or territory,


4. trusts, societies or other associations of individuals (whether incorporated
   or not) formed or registered in a foreign country or territory,




7. a trade union in any foreign country or territory, whether or not registered
   in such foreign country or territory,


8. a foreign trust by whatever name called or a foreign foundation which is
   either in the nature of trust or is mainly financed by a foreign country
   or territory,


9. a society, club or other association of individuals formed or registered
   outside India,


10. a citizen of foreign country,

NRI who is an Indian citizen is not considered as a foreign source and hence donation received from NRI is not a foreign contribution even if it is in convertible foreign exchange. However, if he is a foreign citizen then the NRI will be considered as a foreign source.

Is an individual donee liable to get prior permission from Central Government for receipt of foreign contribution ? Is there any reporting provisions binding him to comply with?

As per FCRA the persons liable to get themselves registered or get prior permission or report receipt of foreign contribution are listed in section 4.

Apart from the persons mentioned in Section 4 of FC(R)A, 1976, (which does not specify anything about an individual donee) all individual are entitled to receive foreign funds without any restrictions. In other words FCRA is not applicable to private individuals. The only exception in this regard is receipt of stipend or scholarship from foreign source in excess of Rs.36,000/- which should be reported to Central Government by virtue of Section 7.

Considering the above, there is no statutory compliance issue for a private individual who receives a foreign contribution.

What are the provisions in Income Tax which governs the taxability of Gifts?

Section 56 (2)(vi) was inserted by the Finance Act, 2006 with effect from 1-4-2007, the following is the reproduction of the act

...........................

(vi) where any sum of money, the aggregate value of which exceeds fifty thousand rupees, is received without consideration, by an individual or a Hindu undivided family, in any previous year from any person or persons on or after the 1st day of April, 2006, the whole of the aggregate value of such sum:

Provided that this clause shall not apply to any sum of money received

(a) from any relative; or

(b) on the occasion of the marriage of the individual; or

(c) under a will or by way of inheritance; or

(d) in contemplation of death of the payer; or

(e) from any local authority as defined in the Explanation to clause (20) of section 10; or

(f) from any fund or foundation or university or other educational institution or hospital
or other medical institution or any trust or institution referred to in clause (23C) of section 10; or

(g) from any trust or institution registered under section 12AA.

Explanation.: For the purposes of this clause, relative means

(i) spouse of the individual;

(ii) brother or sister of the individual;

(iii) brother or sister of the spouse of the individual;

(iv) brother or sister of either of the parents of the individual;

(v) any lineal ascendant or descendant of the individual;

(vi) any lineal ascendant or descendant of the spouse of the individual;

(vii) spouse of the person referred to in clauses (ii) to (vi).]

The above provisions are self explanatory.

Conclusion:

1. Foreign contribution received by a private individual as gift from a non relative is taxable in the hands of the receiver as income from other sources if it exceeds Rs. 50,000/- per annum. (The Whole amount is taxable)


2. There are no provisions in FCRA, 1976 which prohibits or provides any conditions to receive foreign contribution as gift from any foreigner.


3. Any gift received from Trust or Society registered u/s 12A(a) is completely exempted from tax liability in the hands of the receiver.


4. Section 5 of the Gift Tax Act restricted the extent of gifts that can be made by Non-residents. Now, that the gift tax barrier is removed, the gifts can be made even by a foreigner to any person in India, even though the donee is not a relative.

Online Prior Permission to Receive Foreign Contribution

INTRODUCTION OF FACILITY FOR ONLINE FILING OF APPLICATIONS SEEKING PRIOR PERMISSION TO RECEIVE FOREIGN CONTRIBUTION
--------------------------------------------------------------------------- 15:23 IST
The Ministry of Home Affairs had introduced the facility, ‘FCRA – online’ on 29th September, 2006 to facilitate associations to file online their applications for registration and submit the statutory annual returns regarding receipt and utilization of foreign contribution under the Foreign Contribution (Regulation) Act, 1976 on the Ministry’s website: http://www.mha.nic.in/.

The facility of online status enquiry is also available through this website.

Taking forward the process, a new feature has been introduced in the “FCRA-Online Service” with effect from today enabling online filing of applications seeking prior permission to receive foreign contribution (Form FC-1A) by associations.

This facility aims at providing efficient, transparent and accountable service delivery to stakeholders.

Income Tax Filing Date Extended !!!!!!!

The Central Board of Direct taxes have extended the last date of filing of income tax /fringe benefit tax returns due by 31st October 2007 as follows:-

For electronic returns (companies, and firms requiring tax audit u/s 44AB) to 15th November 2007; and

For paper returns (other than those required to file electronic returns) to 2nd November 2007.

It is further clarified that the dates for obtaining tax audit report under section 44AB of the Income Tax Act have also been extended accordingly.


-----------------------------
so be happy ! you HAVE SOME TIME TO RELAX BEFORE YOU FILE YOUR RETURNS !!!!!!!


JOSEPH

Micro Finance - Few Issues

Ngo MFIs

NGO mFIs: There are a large number of NGOs that have undertaken the task of financial intermediation. Majority of these NGOs are registered as Trust or Society. Many NGOs have also helped SHGs to organise themselves into federations and these federations are registered as Trusts or Societies. Many of these federations are performing non-financial and financial functions like social and capacity building activities, facilitate training of SHGs, undertake internal audit, promote new groups, and some of these federations are engaged in financial intermediation. The NGO mFIs vary significantly in their size, philosophy and approach. Therefore these NGOs are structurally not the right type of institutions for undertaking financial intermediation activities, as the byelaws of these institutions are generally restrictive in allowing any commercial operations. These organisations by their charter are non-profit organisations and as a result face several problems in borrowing funds from higher financial institutions. The NGO mFIs, which are large in number, are still outside the purview of any financial regulation. These are the institutions for which policy and regulatory framework would need to be established.


Non-Profit Companies as MFIs:

Non-Profit Companies as mFIs: Many NGOs felt that combining financial intermediation with their core competency activity of social intermediation is not the right path. It was felt that a financial institution including a company set up for this purpose better does banking function. Further, if mFIs are to demonstrate that banking with the poor is indeed profitable and sustainable, it has to function as a distinct institution so that cross subsidisation can be avoided. On account of these factors, NGO mFIs are of late setting up a separate Non-Profit Companies for their micro finance operations.

The mFI is prohibited from paying any dividend to its members. In terms of Reserve Bank of India’s Notification dated 13 January 2000, relevant provisions of RBI Act, 1934 as applicable to NBFCs will not apply for NBFCs (i) licensed under Section 25 of Companies Act, 1956, (ii) providing credit not exceeding Rs. 50,000 ($1112) for a business enterprise and Rs. 1,25,000 ($2778) for meeting the cost of a dwelling unit to any poor person, and, (iii) not accepting public deposits.


Mutual Benefit MFIs:

The State Cooperative Acts did not provide for an enabling framework for emergence of business enterprises owned, managed and controlled by the members for their own development. Several State Governments therefore enacted the Mutually Aided Co-operative Societies (MACS) Act for enabling promotion of self-reliant and vibrant co-operative Societies based on thrift and self-help. MACS enjoy the advantages of operational freedom and virtually no interference from government because of the provision in the Act that societies under the Act cannot accept share capital or loan from the State Government. Many of the SHG federations, promoted by NGOs and development agencies of the State Government, have been registered as MACS. Reserve Bank of India, even though they may be providing financial service to its members, does not regulate MACS.


For Profit mFIs:


Non Banking Financial Companies (NBFC) are companies registered under Companies Act, 1956 and regulated by Reserve Bank of India. Earlier, NBFCs were not regulated by RBI but in 1997 it was made obligatory for NBFCs to apply to RBI for a certificate of registration and for this certificate NBFCs were to have minimum Net Owned funds of Rs 25 lakhs and this amount has been gradually increased. RBI introduced a new regulatory framework for those NBFCs who want to accept public deposits. All the NBFCs accepting public deposits are subjected to capital adequacy requirements and prudential norms.

There are only a few mFIs in the country that are registered as NBFCs. Many mFIs view NBFCs more preferred legal form and are aspiring to be NBFCs but they are finding it difficult to meet the requirements stipulated by RBI. The number of NBFCs having exclusive focus on mF is negligible.

Capital Requirements:

NGO-mFIs, non-profit companies mFIs, and mutual benefit mFIs are regulated by the specific act in which they are registered and not by the Reserve Bank of India. These are therefore not subjected to minimum capital requirements, prudential norms etc. NGO mFIs to become NBFCs are required to have a minimum entry capital requirement of Rs. 20 million ($ 0.5 million). As regards prudential norms, NBFCs are required to achieve capital adequacy of 12% and to maintain liquid assets of 15% on public deposits.

Foreign Investment

Foreign investment by way of equity is permitted in NBFC mFIs subject to a minimum investment of $500,000. In view of the minimum level of investment, only two NBFCs are reported to have been able to raise the foreign investment. However, a large number of NGOs in the development - empowerment are receiving foreign fund by way of grants. At present, over Rs.40, 000 million ($ 889 million) every year flows into India to NGOs for a whole range of activities including micro finance. In a way, foreign donors have facilitated the entry of NGOs into micro finance operations through their grant assistance.

Deposit Mobilisation

Not for profit mFIs are barred, by the Reserve Bank of India, from mobilising any type of savings. Mutual benefit mFIs can accept savings from their members. Only rated NBFC mFIs rated by approved credit rating agencies are permitted to accept deposits. The quantum of deposits that could be raised is linked to their net owned funds.

Borrowings

Initially, bulk of the funds required by mFIs for onlending to their clients were met by apex institutions like National Bank for Agriculture and Rural Development, Small Industries Development Bank Of India, and, Rashtiya Mahila Kosh. In order to widen the range of lending institutions to mFIs, the Reserve Bank of India has roped in Commercial Banks and Regional Rural Banks to extend credit facilities to mFIs since February 2000.

Both public and private banks in the commercial sector have extended sizeable loans to mFIs at interest rate ranging from 8 to 11 per cent per annum. Banks have been given operational freedom to prescribe their own lending norms keeping in view the ground realities. The intention is to augment flow of micro credit through the conduit of mFIs. In regard to external commercial borrowings (ECB) by mFIs, not-for-profit mFIs are not permitted to raise ECB. The current policy effective from 31 January 2004, allows only corporates registered under the Companies Act to access ECB for permitted end use in order to enable them to become globally competitive players.

Interest Rates:

The interest rates are deregulated not only for private mFIs but also for formal baking sector. In the context of softening of interest rates in the formal banking sector, the comparatively higher interest rate (12 to 24 per cent per annum) charged by the mFIs has become a contentious issue. The high interest rate collected by the mFIs from their poor clients is perceived as exploitative. It is argued that raising interest rates too high could undermine the social and economic impact on poor clients. Since most mFIs have lower business volumes, their transaction costs are far higher than that of the formal banking channels. The high cost structure of mFIs would affect their sustainability in the long run.


Collateral requirements:

All the legal forms of mFIs have the freedom to waive physical collateral requirements from their clients. The credit policy guidelines of the RBI allow even the formal banks not to insist on any type of collateral and margin requirement for loans upto Rs 50,000 ($1100).


Regulation & Supervision

India has a large number of mFIs varying significantly in size, outreach and credit delivery methodologies. Presently, there is no regulatory mechanism in place for mFIs except for those that are registered as NBFCs. As a result, mFIs are not required to follow standard rule and it has allowed many mFIs to be innovative in its approach particularly in designing new products and processes. But the flip side is that the management and governance of mFIs generally remains weak, as there is no compulsion to adopt widely accepted systems, procedures and standards. Because the sector is unregulated, not much is known about their internal health.

________________________________________
Extracts from an article written and presented at the APRACA Seminar at Manila on Regulation of mFIs in July 2004 by K.Muralidhara Rao, General Manager, NABARD, Mumbai. The views expressed are personal and attempts to capture the present thinking of regulating institutions.

Should NGO deduct Tax under TNVAT Act for Civil Contract Payments ?

Mostly after Tsunami, the attention of Many International NGOs (INGO) have been drawn on Coastal Areas which underwent the wrath of the killer waves. Those Ngos have entered into an understanding with local Ngos and have granted funds for :


1. Rehabilitation & Sustainability
2. Community Resource Centres
3. Permanent Housing
4. Community Buildings etc.


The local NGos after MOU with INGOs have been left with huge funds and responsibilities. Most of the NGOs have sought Professional help to perform the duties related to their activities.

Housing Construction would be contracted to a Construction Company. In the above circumstance, the question as to whether the NGO is responsible to collect any tax towards Value Added Tax (VAT) arises. The following discussion would throw some light into this matter.


In Tamilnadu, Tamilnadu Value Added Tax, 2006 received the accent of the Governor of Tamilnadu on the 14th of December, 2006 and was enacted in the Legislature as Act No. 36 of 2006. This act repealed TNGST Act, 1959 and TNAST Act, 1970.

The bare Provisions relating to Tax deduction at Source is contained in Section 13 which is reproduced below;


Section 13. (1) Notwithstanding anything contained in this Act, every person responsible for paying any sum to any dealer for execution of works contract shall, at the time of payment of such sum, deduct an amount calculated, at the following rate, namely:-
Deduction of tax at source in works contract.
(i) civil works contract --two per cent of the total amount payable to such dealer;
(ii) civil maintenance works contract --two per cent of the total amount payable to such dealer;
(iii) All other works contracts --four per cent of the total amount payable to
such dealers:

Provided that no deduction under sub-section (1) shall be made where --
(a) no transfer of property in goods (whether as goods or in some other form) is involved in the execution of works contract; or
(b) transfer of property in goods (whether as goods or in some other form) is involved in the execution of works contract in the course of inter-State trade or commerce or in the course of import; or
(c) the dealer produces a certificate in such form as may be prescribed from the assessing authority concerned that he has no liability to pay or has paid the tax under section 5:

Provided further that no such deduction shall be made under this section, where the amount or the aggregate of the amount paid or credited or likely to be paid or credited, during the year, by such person to the dealer for execution of the works contract including civil works contract does not or is not likely to, exceed rupees one lakh.
Explanation.-- For the purpose of this section –
(a) the term ‘ person’ shall include –
(i) the Central or a State Government;
(ii) a local authority;
(iii) a corporation or body established by or under a Central or State Act;
(iv) a company incorporated under the Companies Act, 1956 including a Central or State Government undertaking;
(v) a society including a co-operative society;
(vi) an educational institution; or
(vii) a trust;
(b) the term “civil works contract” shall have the same meaning as in the Explanation to section 6.
(2) Any person making such deduction shall deposit the sum so deducted to such authority, in such manner and within such time, as may be prescribed.
(3) Any person who makes the deduction and deposit, shall within fifteen days of such deposit, issue to the said dealer a certificate in the prescribed form for each deduction separately, and send a copy of the certificate of deduction to the assessing authority, having jurisdiction over the said dealer together with such documents, as may be prescribed.
(4) On furnishing a certificate of deduction referred to in sub-section (3), the amount deposited under sub-section (2), shall be adjusted by the assessing authority towards tax liability of the dealer under section 5 or section 6 as the case may be, and shall constitute a good and sufficient discharge of the liability of the person making deduction to the extent of the amount deposited:
Provided that the burden of proving that the tax on such works contract has already been deposited and of establishing the exact quantum of tax so deposited shall be on the dealer claiming the deduction.
(5) Any person who contravenes the provisions of sub-section (1) or sub-section (2), shall pay, in addition to the amount required to be deducted and deposited, interest at one and a quarter per cent per month of such amount for the entire period of default.
(6) Where the dealer proves to the satisfaction of the assessing authority that he is not liable to pay tax under section 5, the assessing authority shall refund the amount deposited under sub-section
(2), after adjusting the arrears of tax, if any, due from the dealer, in such manner as may be prescribed.
(7) The tax or interest under this section shall become due without any notice of demand on the date of accrual for the payment by the person as provided under sub-sections (1) and (2).
(8) If any person contravenes the provisions of sub-section (1) or sub-section (2), the whole amount of tax payable shall be recovered from such person and all provisions of this Act for the recovery of tax including those relating to levy of penalty and interest shall apply, as if the person is an assessee for the purpose of this Act.


What does the TNVAT Rules Say about the TDS ?

Rule No. 9 governs the TDS provisions found in Section 13 of the TNVAT Act. The following is the reproduction of rule 9 of TNVAT Rules.

9. Tax deduction at source.—

(1) Any person who makes a deduction under section 13, shall deposit the sum so deducted to the assessing authority having jurisdiction over the person or to any other authority authorised by the Deputy Commissioner to receive such payment, on or before the 20th day of the succeeding month in which the deduction was made with a statement in Form R.
(2) The certificate that a dealer has no liability to pay or has paid the tax under section 5, referred to in
clause (b) of the first proviso to sub-section (1) of section 13 shall be in Form S.
(3) The certificate of deduction of tax referred to in sub-section (3) of section 13 shall be in Form T.
(4) The notice in writing, indicating the amount payable under the Act, referred to in sub-section (5) of
section 45 shall be in Form U.

Wrap UP:

As provided in Section 13 of TNVAT Act and Rule 9 of TNVAT Rules, it could be concluded that tax should be deducted on TOTAL PAYMENT, if it exceeds or is likely to exceed Rs. ONE LAKH per annum, at the rates prescribed in section 13 and should be handled as directed in rule 9.

Further resources related to the above subject may be found at http://www.tnvat.gov.in
If you have any further queries, you are free to mail it to ngocare@gmail.com

A. Joseph Arputharaj
Mobile : 9842350776

Here is a Good News !

Dear Friends,

You will find almost all details which you would require with reference to an NGO - NPO - or Charity. Though these are differently called, they are almost similar in operations. Their constitution differs according to the Laws of the Land - but their objectives are similar.

will grow

A. Joseph Arputharaj