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Start-Ups: Tax or No Tax?

In last week, a controversy was again created when the Revenue Authorities sent notices to start-ups for their income earned from ‘share premium’ or the famous ‘angel tax’. However, the Government has assured that the start-ups will not be taxed.

Nevertheless, the law for the startups is not only vague but also inconsistent. In this article, I will discuss firstly, the law regarding the taxation of Start-up companies, i.e. Section 80 IAC of the Income Tax Act and the DIPP’s Notification released as on 11thApril, 2018,secondly, the discrepancy in construing the law and the glaring contradictions between two laws.

The issue discussed in this article is with respect of levying tax from the ‘share premium’ of the start-up companies. This is dealt by Section 56 of the IT Act, known as ‘Income from other sources’ or famously the ‘Angel Tax’.

A. Section 80 IAC of Income Tax Act, 1961:

Section 80 IAC of the Income Tax Act, 1961, in very simple terms, states that “the eligible startup companies with eligible business, shall avail tax exemption from all profits and gains, for three consecutive years…” The section further lays down the eligibility criteria for ‘eligible startup’ and ‘eligible business’, which is as under:
(a) eligible business means a business which involves innovation, development, deployment or commercialisation of new products, processes or services driven by technology or intellectual property;
(b) eligible start-up means a company or a limited liability partnership engaged in eligible business which fulfils the following conditions, namely:
i. it is incorporated on or after the 1st day of April, 2016 but before the 1st day of April, 2019;
ii. the total turnover of its business does not exceed twenty-five crore rupees in any of the previous years beginning on or after the 1st day of April, 2016 and ending on the 31st day of March, 2021; and
iii. it holds a certificate of eligible business from the Inter-Ministerial Board of Certification as notified in the official Gazette by the Central Government;

From the bare-reading of the Act, this provision seems complete and it does not mention of following any other criteria’s other than already mentioned. However, that is not quite the case. In April 2018, the DIPP released a notification which prescribed for stricter regulations, withdrawing its earlier notification of 2017.

B. Dipp’s Notification:

On 11thApril, 2018, the Department of Industrial Policy and Promotion released aNotificationwhich stated that for any start-up to avail tax exemption, it must confirm to Section 80 IAC of the IT Act and obtain a Certificate from the IMB (Inter-Ministerial Board). The Notification also in detail, defines ‘start-up’ even though it has been previously defined by the Act.

However, the Notification lays down further conditions for the start-up to get tax exemption, apart from what has been already laid down in the IT Act. Start-ups which fulfil these conditions, will only be eligible for ‘exemption from levy of income tax on share premium’. Following are those conditions:

a) It prescribes conditions for seeking approval for exemption from levy of income tax on share premium received by eligible start-ups for both startup companies and investors.
These conditions are as follows:
i. The aggregate amount of paid-up share capital and share premium of the startup after the proposed issue of shares does not exceed ten crore rupees and
ii. Requirement to furnish valuation report obtained from Category I Merchant banker specifying Fair Market Value (FMV) of the shares in accordance with Rule 11UA of the Rules.
iii. The conditions required to be fulfilled by the investor are either:
·The average returned income of twenty-five lakh rupees or more for the preceding three financial years; or
·The net worth of two crore rupees or more as on the last date of the preceding financial year.

C. Inconsistency With Regard To ‘Angel Tax’:

The IT Act and the DIPP’s notification are both widely inconsistent when it comes to exempting start-ups from income tax. The language of the IT Act is simple and clear. If the the start-up company meets the eligibility requirement given in the Act and falls within the definition of the ‘Start-up’, that start-up should be exempted from ‘all profits and gains’, which will include the share premium earned by the companies. Hence, no company would be subject to any other stricter conditions than already laid down in the Act.

However, now coming to the DIPP’s notification released in 2018, there is huge inconsistency with the Act. It lays down conditions specifically to avail tax exemption for the so-called ‘angel tax’, which completely against the language and intention of the IT Act.

So a situation might arise when the company is a ‘eligible start-up’ within the meaning of IT Act and has also obtained Certificate from the Inter-Ministerial Board, and hence, according to Section 80 IAC of the IT Act, can claim tax exemption from the share premium. However, if it does not fulfil the criteria laid down by the DIPP’s Notification, it cannot avail exemption from the infamous ‘angel tax’.

The object of Section 80 IAC was to give hundred percent tax exemption to the companies who qualify themselves as ‘start-up’. However, the ‘additional criteria’ laid down by DIPP in its notification is wholly inconsistent with the intentions of the Act and its language.
A notification cannot override the Act. However, in the present scenario, the intention of legislature has been frustrated by the aforesaid notification.

Unfair Use of Delegated Legislation:

The notification is just a piece of delegated legislation and by way of such subordinate legislation, entire new thing cannot be introduced, which was never envisaged by the parent Act. Here, the criteria laid down by the DIPP’s notification specifically in relation to ‘angel tax’ amends the intention of the Parliament envisaged while making of S. 80 IAC, hence, to that extent, it is widely erroneous.

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