Special Tax Regimes for Investment Funds : Clause 224 of Income Tax Bill, 2025 Vs. Section 115UB of the Income-tax Act, 1961

Clause 224 Tax on income of investment fund and its unit holders.

Income Tax Bill, 2025

Introduction

Clause 224 of the Income Tax Bill, 2025 marks a significant legislative intervention in the taxation of investment funds and their unit holders in India. It builds upon the established legal framework, primarily governed by Section 115UB of the Income-tax Act, 1961 and its procedural counterpart, Rule 12CB of the Income-tax Rules, 1962. These provisions collectively constitute the backbone of the "pass-through" tax regime for Alternative Investment Funds (AIFs), ensuring that income is taxed in the hands of the ultimate beneficiaries rather than the investment vehicle itself, subject to certain exceptions and conditions.

The importance of this area of law lies in its direct impact on the structure, operation, and tax efficiency of pooled investment vehicles-especially AIFs, which are increasingly pivotal in India's capital markets and private investment landscape. The legislative evolution from Section 115UB to Clause 224 reflects not only the need for clarity and modernization but also the policy imperative to maintain India's competitiveness as a destination for alternative capital while safeguarding tax revenues and preventing abuse.

This commentary provides a detailed analysis of Clause 224, elucidates its objectives, and compares its provisions with existing law and rules. It also examines the practical and policy implications for stakeholders, highlighting areas of continuity, change, and potential ambiguity.

Objective and Purpose

The principal objective behind Clause 224 is to codify and refine the special taxation regime for investment funds and their unit holders, preserving the "pass-through" principle while updating definitions, clarifying loss treatment, and aligning with regulatory developments. The legislative intent is to:

• Ensure income from investment funds is taxed in the hands of unit holders, except for certain categories of income (e.g., business income).
• Clarify the treatment and carry-forward of losses at both the fund and unit holder levels.
• Provide for efficient tax administration and compliance through prescribed statements and disclosures.
• Accommodate evolving regulatory structures, such as the International Financial Services Centres Authority (IFSCA) regime.

These objectives are rooted in policy considerations of neutrality, transparency, and the avoidance of double taxation or unintended tax deferral.

Detailed Analysis of Clause 224 of the Income Tax Bill, 2025

1. Overriding Effect and Scope 

Clause 224(1) establishes the overriding nature of the provision, stipulating that, notwithstanding anything to the contrary in the Act, income accruing to or received by a unit holder from investments in an investment fund is chargeable to tax as if the investments had been made directly by the unit holder. This "look-through" or "pass-through" approach is foundational to the regime, ensuring that the legal interposition of the fund does not alter the incidence or character of taxation for the investor.

This mirrors Section 115UB(1) of the 1961 Act, with nearly identical language, thus preserving continuity in the core principle of pass-through taxation for eligible investment funds.

2. Treatment of Losses 

Clause 224(2) addresses the computation and set-off of losses at the fund level, bifurcating losses into those arising under the head "Profits and gains of business or profession" and other losses. The key features are:

• Business losses are allowed to be carried forward and set off by the fund itself under Chapter VII, and are disregarded for pass-through purposes.
• Other losses (e.g., capital losses), if arising in respect of units held for less than twelve months, are also ignored for pass-through purposes.

This structure prevents the artificial transfer of short-term or business losses to unit holders, thereby curbing potential tax avoidance and aligning the tax treatment with the economic substance of investment holding periods.

The language and effect are substantially similar to Section 115UB(2), which also distinguishes between business and other losses and imposes a minimum holding period for loss pass-through.

3. Treatment of Accumulated Losses as of 31 March 2019 

Clause 224(3) introduces a transitional rule for losses (other than business losses) accumulated at the fund level as of 31 March 2019. These losses are deemed to be the losses of unit holders who held units on that date, and such unit holders may carry forward and set off these losses for the remaining eligible period.

Clause 224(4) expressly denies the fund the ability to carry forward such losses after 1 April 2019.

This transitional mechanism was introduced in Section 115UB(2A) via amendment and is faithfully replicated in Clause 224. It addresses the practical challenge of loss carry-forward in the context of regime change, ensuring that investors are not unduly prejudiced or unjustly enriched.

4. Character and Proportion of Income 

Clause 224(5) provides that income paid or credited by the fund is deemed to retain its character and proportion in the hands of the unit holder as it had in the hands of the fund, subject to the loss treatment in sub-section (2). This preserves the integrity of the income stream (e.g., interest, dividends, capital gains) and prevents re-characterization for tax purposes.

This provision is identical in substance to Section 115UB(3).

5. Taxation of the Fund 

Clause 224(6) clarifies that the fund's total income is taxed at the rates specified in the Finance Act if it is a company or firm, or at the maximum marginal rate in other cases. This ensures that only income not eligible for pass-through (primarily business income) is taxed at the fund level, while other income is taxed in the hands of unit holders.

Section 115UB(4) is virtually identical in this respect. Notably, Section 115UB(5) of the 1961 Act, which excludes the application of Chapters XII-D and XII-E (relating to Dividend Distribution Tax and tax on distributed income), is omitted in Clause 224, possibly reflecting the abolition of DDT and changes in the tax regime for distributed income.

6. Deemed Credit of Income 

Clause 224(7) provides that income accruing to the fund but not paid or credited to unit holders is deemed to be credited to them on the last day of the tax year, in the proportion to which they would have been entitled. This prevents indefinite deferral of taxation through retention of income at the fund level.

This is a direct carry-over from Section 115UB(6) and is essential for the integrity of the pass-through regime.

7. Exclusion of Double Taxation 

Clause 224(8) ensures that income already included in a unit holder's total income on an accrual basis is not taxed again when actually paid. This anti-duplication safeguard is crucial for fairness and is found in Explanation 2 to Section 115UB.

8. Compliance and Disclosure 

Clause 224(9) mandates that the person responsible for crediting or paying income must furnish a prescribed statement to both the unit holder and the tax authority, detailing the nature and quantum of income paid or credited, within a prescribed time and form. This is the statutory basis for compliance statements such as Forms 64C and 64D u/r 12CB.

9. Definitions

Clause 224(10) defines "investment fund", "trust", and "unit" in terms substantially identical to the definitions in Section 115UB, with explicit reference to funds regulated by SEBI and IFSCA. This ensures only regulated AIFs and similar vehicles are eligible for the regime.

Practical Implications

For Investment Funds

• Tax Neutrality: The regime preserves tax neutrality for most categories of income, except business income, encouraging fund formation and investment activity in India.
• Loss Ring-Fencing: The rules prevent the transfer of business losses and certain short-term losses to unit holders, thereby limiting tax arbitrage and aligning tax outcomes with economic substance.
• Compliance Burden: Funds must maintain detailed records of income and loss allocations, holding periods, and must generate and file prescribed statements (Forms 64C and 64D) in a timely manner.
• Transitional Relief: The transitional provisions for losses as of 31 March 2019 provide certainty and continuity for funds and investors affected by regime changes.

For Unit Holders

• Direct Taxation: Investors are taxed as if they held underlying investments directly, preserving the character of income and enabling utilization of losses (subject to conditions).
• Holding Period Conditions: The requirement to hold units for at least twelve months to receive pass-through of certain losses may affect investment strategies and liquidity decisions.
• Double Taxation Avoidance: The explicit exclusion of double taxation on accrual and actual receipt prevents unfair tax outcomes.

For Regulators and Tax Authorities

• Transparency and Oversight: The prescribed statements and electronic filing requirements facilitate monitoring and enforcement.
• Alignment with SEBI/IFSCA: The regime is closely tied to regulatory recognition, ensuring only bona fide, regulated funds benefit from the special tax treatment.

Comparative Analysis: Clause 224 vs Section 115UB and Rule 12CB

1. Structural and Substantive Parity

Clause 224 is, in essence, a restatement and rationalization of Section 115UB, with only minor drafting changes. The core principles-pass-through taxation, loss treatment, holding period requirements, character retention, and compliance-are preserved. The definitions and scope are also largely identical.

2. Notable Differences

• Reference to Schedules and Chapters: Clause 224 refers to "Schedule V (Table: Sl. No. 1)" and "Chapter VII" for loss computation and set-off, whereas Section 115UB refers to Section 10(23FBA) and "Chapter VI". This reflects the structural reorganization in the new Bill, but the substantive effect is the same.
• Omission of DDT/Distributed Income Provisions: Section 115UB(5) excludes the application of Chapters XII-D and XII-E (relating to DDT and distributed income tax). Clause 224 omits this, likely because DDT has been abolished and such provisions are obsolete.
• Clarity and Modernization: Clause 224 uses updated terminology (e.g., "tax year" instead of "previous year") and references to IFSCA regulations, reflecting regulatory developments and modernization.

3. Rule 12CB: Procedural Compliance

Rule 12CB operationalizes the compliance requirements of Section 115UB(7) (and by extension, Clause 224(9)), prescribing:

• Form 64C (to be furnished to unit holders by 30 June following the financial year).
• Form 64D (to be furnished to the Principal Commissioner/Commissioner by 15 June following the financial year, electronically under digital signature, verified by an accountant).
• Procedures for filing, security, and administration of the statements, including digital authentication and archival.

These procedural rules are essential for transparency and auditability, ensuring that both investors and tax authorities have access to accurate and timely information regarding income allocations.

Clause 224(9) continues the statutory basis for these requirements, and it is expected that corresponding procedural rules will be issued under the new Act.

4. Policy Continuity and Evolution

The comparative analysis demonstrates a high degree of continuity in policy and substance, with Clause 224 largely codifying the status quo while updating references and language. The focus remains on:

• Preventing tax deferral and arbitrage through fund structures.
• Ensuring tax neutrality and fairness for investors.
• Aligning with evolving regulatory frameworks (SEBI, IFSCA).

The abolition of DDT and the increasing importance of IFSCA-regulated funds are reflected in the updated provisions, indicating a forward-looking approach.

Comparative Features Table

Feature	Clause 224 of the Income Tax Bill, 2025	Section 115UB of the Income-tax Act, 1961	Rule 12CB of the Income-tax Rules, 1962
Pass-through of income	Yes (Sub-section 1)	Yes (Sub-section 1)	N/A
Business income taxed at fund level	Yes (Sub-section 2(a))	Yes (Sub-section 2(i))	N/A
Non-business losses: 12-month holding	Yes (Sub-section 2(b))	Yes (Sub-section 2(ii))	N/A
Legacy losses as of 31.03.2019	Yes (Sub-sections 3, 4)	Yes (Sub-section 2A)	N/A
Character/proportion of income	Yes (Sub-section 5)	Yes (Sub-section 3)	N/A
Tax rates for fund	Finance Act/MMR (Sub-section 6)	Finance Act/MMR (Sub-section 4)	N/A
Deemed credit of income	Yes (Sub-section 7)	Yes (Sub-section 6)	N/A
Double taxation avoidance	Yes (Sub-section 8)	Yes (Explanation 2)	N/A
Reporting obligations	Yes (Sub-section 9)	Yes (Sub-section 7)	Yes (Forms 64C, 64D; timelines)
Definition of investment fund	SEBI/IFSCA regulated (Sub-section 10)	SEBI/IFSCA regulated (Explanation 1)	N/A

Ambiguities and Potential Issues

• Loss Attribution and Tracking: The practical challenge of tracking losses accumulated as of 31 March 2019 and attributing them to unit holders may require robust record-keeping and could lead to disputes or administrative complexity.
• Minimum Holding Period: The twelve-month holding period for loss pass-through may be subject to interpretational disputes, especially in cases of unit transfers or redemptions close to the cut-off date.
• Characterization of Income: The precise delineation of business income (taxed at fund level) versus other income (passed through) may be contentious in complex fund structures or hybrid investment strategies.
• Procedural Compliance: Timely and accurate filing of Forms 64C and 64D is critical; non-compliance could lead to penalties or denial of tax benefits to investors.
• Regulatory Overlap: As the regulatory landscape evolves (e.g., with IFSCA), ongoing alignment between tax and regulatory definitions is necessary to avoid gaps or overlaps.

Conclusion

Clause 224 of the Income Tax Bill, 2025 represents a careful restatement and rationalization of the existing pass-through tax regime for investment funds and their unit holders, as established under Section 115UB and Rule 12CB. By preserving the essential features of the regime-pass-through treatment, loss ring-fencing, character preservation, and compliance obligations-while updating references and terminology, the new provision ensures continuity, clarity, and alignment with current policy and regulatory realities.

While the substantive framework remains largely unchanged, the modernization and clarification in Clause 224 are welcome, particularly in light of the growing sophistication and importance of the alternative investment sector in India. Stakeholders must continue to pay close attention to compliance requirements, record-keeping for loss attribution, and the evolving regulatory context to fully realize the benefits of the regime. Future reforms may focus on further simplifying compliance, enhancing clarity around hybrid income streams, and ensuring seamless integration with regulatory changes.

Alternative Titles for the Commentary

1. "Pass-Through Taxation of Investment Funds: An Analysis of Clause 224 in the Context of Section 115UB and Rule 12CB"
2. "Clause 224 of the Income Tax Bill, 2025: Continuity and Change in the Taxation of Alternative Investment Funds"
3. "Comparative Review of India's Pass-Through Regime: Clause 224, Section 115UB, and Rule 12CB"
4. "Special Tax Regimes for Investment Funds: Legislative Evolution from Section 115UB to Clause 224"

 

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Full Text:

Clause 224 Tax on income of investment fund and its unit holders.

 

Dated: 9-5-2025