Anti-Abuse Safeguards in the Indian Tonnage Tax Regime : Clause 234(1)-(3) of the Income Tax Bill, 2025 Vs. Section 115VZB of the Income-tax Act, 1961

Clause 234 Avoidance of tax and exclusion from tonnage tax scheme.

Income Tax Bill, 2025

Introduction

The tonnage tax regime, introduced for shipping companies in India, represents a special taxation framework that simplifies the computation of income by linking it to the tonnage of ships operated, rather than the conventional profit-based system. This regime, while offering administrative convenience and competitive parity with global shipping taxation norms, is susceptible to potential abuse, particularly through arrangements engineered to secure undue tax benefits. To counteract such misuse, specific anti-abuse provisions have been embedded within the legislative framework. Clause 234 of the Income Tax Bill, 2025 , and its predecessor, Section 115VZB of the Income-tax Act, 1961, embody these anti-abuse safeguards. Both provisions aim to ensure that only genuine shipping operations benefit from the tonnage tax scheme, and that the scheme is not manipulated to secure tax advantages for non-eligible activities or entities. This commentary provides a comprehensive analysis of Clause 234(1)-(3), explores its legislative intent, dissects its operative mechanism, and critically compares it with Section 115VZB to highlight both continuity and any substantive changes.

Objective and Purpose

The legislative intent behind both Clause 234 and Section 115VZB is clear: to prevent the abuse of the tonnage tax regime by shipping companies through artificial or contrived arrangements. The tonnage tax scheme, by design, offers a concessional method of computing taxable income, which could otherwise be manipulated to shift profits, allocate expenses, or create arrangements that unduly reduce tax liability. The anti-abuse provisions are thus essential to:

• Protect the integrity of the tonnage tax regime.
• Prevent leakage of revenue through tax avoidance schemes.
• Ensure that the benefits of the scheme accrue only to genuine shipping operations.
• Provide a deterrent against aggressive tax planning involving related or third parties.

The historical context of these provisions stems from global experiences where tonnage-based tax regimes, while effective in promoting the shipping industry, have been vulnerable to exploitation by taxpayers seeking to extend the benefits beyond their intended scope.

Detailed Analysis of Clause 234(1)-(3) of the Income Tax Bill, 2025

Clause 234(1): Exclusion of Tonnage Tax Scheme in Case of Abuse

"Subject to the provisions of this Part, the tonnage tax scheme shall not apply where a tonnage tax company is a party to any transaction or arrangement which amounts to an abuse of the tonnage tax scheme."

This provision establishes the foundational rule that the tonnage tax scheme is inapplicable to companies engaging in abusive transactions or arrangements. The phrase "subject to the provisions of this Part" ensures that this exclusion operates within the broader regulatory framework governing tonnage tax. The operative trigger is the company being a "party to any transaction or arrangement" that constitutes an "abuse" of the scheme. This broad phrasing is significant, as it encompasses both direct and indirect participation in abusive conduct, and covers both single transactions and more complex arrangements.

Clause 234(2): Defining 'Abuse' and Scope of Tax Advantage

"For the purposes of sub-section (1), a transaction or arrangement shall be considered an abuse, if the entering into or the application of such transaction or arrangement results, or would but for this section have resulted, in a tax advantage being obtained for- (a) a person other than a tonnage tax company; or (b) a tonnage tax company in respect of its non-tonnage tax activities."

This sub-clause provides a functional test for "abuse," focusing on the outcome of the transaction or arrangement. The key elements are:

• Result-oriented approach: The provision looks at whether the arrangement "results, or would but for this section have resulted," in a tax advantage. This covers both actual and potential tax benefits, thereby pre-empting arrangements that are designed to exploit loopholes.
• Scope of beneficiaries: The provision targets tax advantages secured for (a) persons other than the tonnage tax company, and (b) the tonnage tax company itself, but only in relation to its non-tonnage tax activities. This is crucial, as it prevents the shifting of profits or expenses to entities or activities not eligible for the tonnage tax regime.

The dual focus ensures that both external shifting (to related or unrelated parties) and internal shifting (within the company's non-eligible activities) are covered.

Clause 234(3): Meaning of 'Tax Advantage'

"In this section, 'tax advantage' includes- (a) the determination of- (i) the allowance for any expense or interest; or (ii) any cost or expense allocated or apportioned, which has the effect of reducing the income or increasing the loss, from activities other than tonnage tax activities chargeable to tax, computed on the basis of entries made in the books of account in respect of the tax year in which the transaction was entered into; or (b) a transaction or arrangement which produces to the tonnage tax company more than ordinary profits which might be expected to arise from tonnage tax activities."

This sub-clause elucidates the concept of "tax advantage" through two principal limbs:

• Expense and cost allocation (Clause 3(a)): This covers arrangements that manipulate the determination or apportionment of expenses or interest, with the effect of reducing taxable income (or increasing losses) from non-tonnage tax activities. The reference to "entries made in the books of account" and the specific tax year ensures that the provision is anchored in actual accounting practices, discouraging artificial shifting of costs.
• Excessive profits (Clause 3(b)): This limb targets arrangements that result in the tonnage tax company earning "more than ordinary profits" from tonnage tax activities. This is an anti-avoidance measure aimed at preventing the funneling of profits from non-eligible activities into the tonnage tax regime, thereby securing a lower effective tax rate.

The inclusive definition ("includes") allows the term "tax advantage" to be interpreted broadly, capturing a wide range of tax-driven arrangements.

Comparative Analysis: Clause 234 of the Income Tax Bill, 2025 vs Section 115VZB of the Income-tax Act, 1961

Both Clause 234 and Section 115VZB are structurally and substantively similar, reflecting continuity in legislative policy. However, a close comparison reveals certain nuances and potential improvements in drafting and scope.

Textual and Structural Comparison

• Trigger for Exclusion: Both provisions stipulate that the tonnage tax scheme "shall not apply" where the company is a party to an abusive transaction or arrangement. The language is nearly identical, ensuring consistency in operative effect.
• Definition of Abuse: The tests for abuse in both provisions are functionally identical, focusing on arrangements that result in tax advantages for non-eligible persons or activities. The 2025 Bill uses "would but for this section have resulted," which is a slightly more explicit articulation of potential abuse.
• Definition of Tax Advantage: Both provisions provide an inclusive definition, covering:
  • Manipulation of expense or interest allowances, cost allocation, or apportionment that affects non-tonnage tax income or loss.
  • Arrangements producing more than ordinary profits from tonnage tax activities.
  The 2025 Bill's language is marginally more detailed in specifying the computation "on the basis of entries made in the books of account in respect of the tax year," whereas the 1961 Act refers to "the previous year."

Substantive and Procedural Differences

While the core anti-abuse rules are retained, the Income Tax Bill, 2025, introduces several procedural and clarificatory enhancements in its full version (as seen in sub-sections (4)-(7), though the focus here is on (1)-(3)). Notably, Clause 234(1)-(3) is almost a verbatim reproduction of Section 115VZB(1)-(2), with only minor editorial changes.

Interpretational Issues and Ambiguities

• Subjectivity in 'Ordinary Profits': Both provisions refer to "more than ordinary profits," but neither defines what constitutes "ordinary profits." This leaves room for interpretational disputes between taxpayers and tax authorities, potentially requiring judicial clarification or administrative guidance.
• Scope of 'Arrangement': The term "arrangement" is not defined, and could include a wide spectrum of commercial dealings, from inter-company transactions to complex group structures. The breadth of this term necessitates careful factual analysis in each case.
• Reference Year: The 2025 Bill refers to the "tax year," aligning with global terminology, while the 1961 Act uses "previous year," the traditional Indian tax parlance. This is a minor terminological update with no substantive impact, but may reflect a broader move towards international best practices.

Policy Continuity and Legislative Intent

The near-identical wording of the two provisions underscores a deliberate policy choice to maintain the anti-abuse safeguard as an essential part of the tonnage tax regime. The minor linguistic refinements in the 2025 Bill do not alter the substantive reach or intent of the provision.

Practical Implications

For Shipping Companies

• Companies must ensure that all transactions and arrangements are commercially justified and not designed primarily for tax advantage.
• Internal controls and documentation must be robust to demonstrate the bona fide nature of transactions, particularly those involving related parties or significant cost allocations.
• Companies must be vigilant in allocating expenses and recognizing profits, ensuring that non-tonnage tax activities are not used to shelter income or inflate losses.

For Tax Authorities

• The provisions empower tax officers to scrutinize arrangements and, where abuse is detected, deny the tonnage tax benefit.
• Given the potential subjectivity in determining "ordinary profits" and the bona fide nature of transactions, tax authorities must exercise judgment and fairness, supported by adequate reasoning and evidence.

Compliance and Litigation Risks

• The broad and inclusive language of "tax advantage" and "arrangement" may lead to disputes, particularly in complex corporate structures or multinational operations.
• Taxpayers may challenge adverse findings on grounds of commercial justification, requiring detailed factual and legal analysis in each case.

Comparative Perspective: International and Domestic Context

Anti-abuse provisions are a common feature in tonnage tax regimes worldwide. The Indian approach, as reflected in both Clause 234 and Section 115VZB, aligns with global best practices by:

• Focusing on substance over form.
• Providing for both actual and potential abuse.
• Targeting both internal and external shifting of profits and expenses.

At the same time, the Indian provisions are notable for their explicit reference to accounting entries and for the inclusive definition of "tax advantage," which may be broader than in some other jurisdictions.

Potential Areas for Reform or Clarification

• Definitional Clarity: Providing a statutory or regulatory definition of "ordinary profits" would enhance certainty for taxpayers and reduce litigation.
• Guidance on Arrangements: Administrative guidance or illustrative examples could clarify the scope of "arrangement" and the types of transactions likely to be scrutinized.
• Procedural Safeguards: While the full Clause 234 includes procedural safeguards (notice, opportunity to be heard, approval of higher authority), ongoing monitoring of their effectiveness is warranted to ensure fairness.

Conclusion

Clause 234(1)-(3) of the Income Tax Bill, 2025, represents a direct continuation of the anti-abuse framework established by Section 115VZB of the Income-tax Act, 1961. Both provisions are designed to prevent the misuse of the tonnage tax regime by shipping companies through arrangements aimed at securing undue tax benefits. The provisions are broadly worded to capture a wide range of abusive practices, with the ultimate objective of preserving the integrity of the tonnage tax scheme. While the 2025 Bill introduces minor linguistic updates, the substantive policy and operative mechanism remain unchanged. The inclusive definition of "tax advantage" and the focus on both internal and external shifting of profits and expenses reflect a comprehensive approach to anti-avoidance. However, certain ambiguities-such as the meaning of "ordinary profits"-persist, highlighting the need for further legislative or administrative clarification. In practice, these provisions impose significant compliance obligations on shipping companies, requiring careful structuring and documentation of transactions. For tax authorities, the provisions provide a robust tool to counteract abuse, but also demand judicious application to avoid penalizing legitimate commercial arrangements. As the tonnage tax regime continues to evolve, ongoing vigilance and periodic review of the anti-abuse framework will be essential to balance the twin objectives of industry promotion and revenue protection.

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Full Text:

Clause 234 Avoidance of tax and exclusion from tonnage tax scheme.

 

Dated: 28-5-2025