MAT on FII - Whose Legacy is it anyway?
The Indian Finance Minister has termed MAT on FIIs as a "legacy" issue arising in 2012 pursuant to a ruling from Authority for Advance Ruling. In his statement before Upper House of Indian Parliament last week, FM's stated that "In view of a ruling given by the Authority for Advance Rulings in 2012, it was not possible to provide retrospective exemption for the prior period. Perhaps, this matter should have been addressed in 2012 itself and resolved in one way or the other. ... Thus, it may be seen that as soon as the problem was brought to our notice, we have resolved the issue with immediate effect. ". The FM in the same clarification also added that "In the meantime, I have received a number of representations on this whole issue. We have, therefore, decided to refer this matter as well as a few other tax issues which are essentially legacy issues to a Committee to be headed by Justice A.P. Shah, Chairman of the Law Commission."
The FM has attributed these legacy issues to the previous Government.
Out of curiosity to find out the "legacy", I traced how law on Minimum Alternate Tax (MAT) has evolved in the Indian Income Tax Act. MAT was first introduced in 1987 (Budget presented by Rajiv Gandhi). The next set of significant changes were introduced in 1996 when P. Chidambaram was the Finance Minister.
The current MAT law (as appearing in Sec 115JB) was introduced by Finance Act, 2000 replacing earlier scheme of MAT levy. Yashwant Sinha (the then Finance Minister) in his Budget speech on MAT said "This should bring all zero tax companies within the tax-net, which is also the basic purpose of this tax. The new system has the virtue of a lowered rate of tax, a simple method of computation, and an equitable spread."
Interestingly, the Memorandum explaining Budget 2000 amendments states that "....The new provisions provide that all companies having book profits under the Companies Act, prepared in accordance with PartII and Part- III of Schedule-VI to the Companies Act , shall be liable to pay a minimum alternate tax at a lower rate of 7.5%, as against the existing effective rate of 10.5% of the book profits. These provisions will be applicable to all corporate entities without any exception.... ". This clarification states that MAT applies to all corporate entities without any exception (perhaps even FIIs too?).
Thus, the genesis of MAT levy on foreign companies under current law (Sec 115JB) in fact started from Yashwant Sinha's Budget of 2000. Therefore, to say that the MAT on FIIs is a legacy issue started in 2012 gives an incomplete picture & also unfair too. The issue in fact does not even relate to year 2012 but financial years prior to that and an amendment in law to provide relief from retrospective effect only could address the issue. Ofcourse, Justice Shah panel is now seized of the issue and FIIs & professionals would be keenly waiting how the legacy issue is resolved.