Continuity and Change in India's Tonnage Tax Regime : Clause 226(1) of the Income Tax Bill, 2025 Vs. Section 115VB of the Income-tax Act, 1961

Clause 226 Tonnage tax scheme.

Income Tax Bill, 2025

Introduction

The Indian shipping industry plays a pivotal role in the country's trade and economic development. Recognizing the unique nature of shipping operations and the global best practices in maritime taxation, Indian tax law has long provided a special regime for shipping companies: the tonnage tax scheme. This regime is intended to offer certainty, simplicity, and international competitiveness to Indian shipping businesses. Clause 226(1) of the Income Tax Bill, 2025 ("the Bill") proposes to define the scope of "operating a ship or inland vessel" for the purposes of the tonnage tax scheme. This clause is central to determining which companies may opt for the tonnage tax regime and how their income is to be computed. The provision draws from, and seeks to update, the existing Section 115VB of the Income-tax Act, 1961 ("the Act"), which currently governs the same subject. This commentary undertakes a comprehensive analysis of Clause 226(1), situates it within the broader legislative framework, elucidates its objectives and implications, and provides a detailed comparative analysis with Section 115VB. The analysis also considers the practical and policy dimensions of these provisions, highlighting their importance for stakeholders in the Indian shipping sector.

Objective and Purpose

The legislative intent behind both Clause 226(1) and Section 115VB is to provide clarity and certainty regarding the eligibility of shipping companies for the tonnage tax scheme. The tonnage tax regime, adopted from international models, allows qualifying shipping companies to compute their profits for tax purposes based on the net tonnage of their ships, rather than actual income and expenses. This approach is aimed at:

• Reducing tax compliance complexity for shipping businesses, given the international and mobile nature of shipping operations.
• Aligning Indian tax law with global maritime taxation standards, thereby enhancing the competitiveness of Indian shipping companies.
• Preventing revenue leakage and tax avoidance by clearly defining what constitutes "operating a ship."
• Ensuring that only genuine shipping operations benefit from the tonnage tax regime, by excluding certain chartering arrangements that do not involve operational risk-taking.

The inclusion of "inland vessels" in both the new and amended provisions reflects a policy decision to extend the benefits of the tonnage tax regime beyond ocean-going ships, thereby supporting the inland waterways sector.

Detailed Analysis of Clause 226(1) of the Income Tax Bill, 2025

Clause 226(1) is foundational in setting the scope of what it means for a company to be "operating a ship or inland vessel" for the purposes of the tonnage tax scheme. The clause reads as follows:

"In this Part, a company shall- (a) be regarded as operating a ship or inland vessel, as the case may be, if it operates any ship whether owned or chartered by it and includes a case where even a part of the ship or inland vessel, as the case may be, has been chartered in by it in an arrangement such as slot charter, space charter or joint charter; and (b) not be regarded as operating a ship or inland vessel, as the case may be, which has been chartered out by it on bareboat charter-cum-demise terms or on bareboat charter terms for a period exceeding three years."

Let us break down and analyze each component:

(a) Positive Test: What Constitutes Operating a Ship or Inland Vessel?

• Ownership or Charter: The provision covers both ships owned by the company and those chartered by it. This ensures that companies engaging in shipping operations through chartering, a common industry practice, are eligible.
• Partial Chartering (Slot, Space, Joint Charter): The inclusion of arrangements such as slot charter, space charter, or joint charter is significant. In modern shipping, companies often do not charter entire vessels but only a portion of the cargo space (e.g., a certain number of containers). Recognizing such arrangements as "operating a ship" aligns with industry realities and prevents exclusion of companies using these models.
• Inland Vessels: The explicit mention of "inland vessel" extends the regime to companies operating on rivers and inland waterways, not just ocean-going ships. This is a deliberate policy expansion to encourage the development of inland water transport.

(b) Negative Test: Exclusions from Operating a Ship or Inland Vessel

• Bareboat Charter-cum-Demise or Bareboat Charter for Over Three Years: A company is not regarded as operating a ship or inland vessel if it has chartered out the vessel on a bareboat charter-cum-demise (BBCD) or bareboat charter (BBC) for a period exceeding three years. This exclusion is rooted in the principle that under such arrangements, the operational risk and control of the vessel passes to the charterer, not the owner.
• Rationale: The tonnage tax regime is intended for companies that bear the operational risks and responsibilities of shipping. When a vessel is chartered out on a long-term BBC or BBCD, the owner is essentially a financier rather than an operator, and thus should not benefit from the tonnage tax regime.

Key Features and Interpretive Issues

• Comprehensive Coverage: By including both owned and chartered vessels, and even partial charters, the provision ensures that the tonnage tax regime is accessible to a broad spectrum of shipping businesses.
• Potential Ambiguities: The phrase "such as slot charter, space charter or joint charter" is illustrative, not exhaustive. However, ambiguity may arise regarding newer or hybrid chartering arrangements. Guidance or rules may be needed for clarity.
• Three-Year Threshold: The cut-off of "exceeding three years" for bareboat charters is a policy choice. Shorter-term charters may still be considered as operational, but longer-term ones are deemed financial or investment activities.
• Alignment with International Practice: The provision is consistent with the guidelines of the Organisation for Economic Co-operation and Development (OECD) and practices in other tonnage tax jurisdictions, which typically exclude bareboat-chartered-out vessels from the regime.

Other Subsections of Clause 226

While the focus is on Clause 226(1), it is relevant to briefly situate it within the broader scheme of Clause 226:

• Subsections (2)-(7): These elaborate on the computation of tonnage income, the requirement to opt into the scheme, the treatment of tonnage tax business as a separate activity, and the computation of profits under other provisions if not covered by the scheme. Clause 226(1) thus serves as the gateway for the entire regime.

Practical Implications

Clause 226(1) has significant practical implications for shipping companies, tax authorities, and the broader Indian economy:

• Eligibility for Tonnage Tax: Companies must carefully structure their operations and chartering arrangements to qualify as "operating a ship or inland vessel." Legal and tax due diligence is essential, especially for companies with mixed fleets or complex chartering arrangements.
• Compliance and Documentation: Companies must maintain detailed records of ownership, chartering arrangements, and periods of charter to substantiate their eligibility. Tax authorities are likely to scrutinize arrangements that may be designed to artificially qualify for the regime.
• Support for Inland Waterways: The inclusion of inland vessels can catalyze investment in this sector, which is a government policy priority for reducing logistics costs and environmental impact.
• Exclusion of Passive Owners: Ship owners who do not take operational risks (e.g., by chartering out on long-term bareboat terms) are excluded, ensuring that the regime supports active shipping businesses.
• Tax Planning: Companies may need to revisit their fleet deployment and chartering strategies to maximize the benefits of the tonnage tax regime.

Comparative Analysis: Clause 226(1) vs. Section 115VB

Textual Comparison

Section 115VB of the Income-tax Act, 1961 (as amended) reads:

"For the purposes of this Chapter, a company shall be regarded as operating a ship if it operates any ship [or inland vessel, as the case may be,] whether owned or chartered by it and includes a case where even a part of the ship [or inland vessel, as the case may be,] has been chartered in by it in an arrangement such as slot charter, space charter or joint charter: Provided that a company shall not be regarded as the operator of a ship [or inland vessel, as the case may be,] which has been chartered out by it on bareboat charter-cum-demise terms or on bareboat charter terms for a period exceeding three years."

A side-by-side reading reveals that Clause 226(1) essentially reproduces Section 115VB, with minor drafting changes (such as splitting into sub-clauses (a) and (b)) and a broader legislative context.

Key Points of Convergence

• Substantive Content: Both provisions define "operating a ship or inland vessel" in substantially identical terms.
• Inclusion of Partial Charters: Both recognize slot, space, and joint charters as qualifying arrangements.
• Exclusion of Long-Term Bareboat Charters: Both exclude vessels chartered out on bareboat terms exceeding three years.
• Inland Vessels: The inclusion of "inland vessel" in Section 115VB is a recent amendment, aligning it with the new Bill.

Key Points of Divergence

• Structural Placement: Clause 226(1) is situated within a new legislative framework (the Income Tax Bill, 2025), which may contain other changes affecting the tonnage tax regime as a whole.
• Drafting Clarity: The Bill's use of sub-clauses (a) and (b) may enhance clarity, but the substantive effect is unchanged.
• Policy Context: The Bill may reflect a renewed policy emphasis on inland waterways and modernization of the tonnage tax scheme, though the core definition remains the same.

Policy and Administrative Implications

• Continuity and Certainty: By retaining the core definition, policymakers ensure stability and predictability for the shipping sector.
• Potential for Further Reform: The recasting of the provision within the Bill may signal an openness to future refinements, especially as the shipping industry evolves.

Comparative Table: Clause 226(1) vs. Section 115VB

Aspect	Clause 226(1) of the Income Tax Bill, 2025	Section 115VB of the Income-tax Act, 1961
Scope	Explicitly covers both ships and inland vessels; applies to owned, chartered, and partially chartered (slot, space, joint charter) arrangements.	Post-amendment, covers both ships and inland vessels; similar inclusion of owned, chartered, and partial charter arrangements.
Exclusion	Excludes vessels chartered out on bareboat charter-cum-demise or bareboat charter for >3 years.	Identical exclusion.
Clarity of Language	More detailed, with explicit mention of both ships and inland vessels in each relevant phrase.	Similar, but amendments were required to bring inland vessels within scope.
Legislative Structure	Part of a new, consolidated Bill, reflecting legislative modernization.	Part of the existing Act, amended to align with new policy directions.
Policy Coverage	Reflects a deliberate policy to include inland water transport, in line with national logistics and transport strategies.	Achieves the same through recent amendments, showing policy convergence.

Comparison with International Practice

The Indian approach is consistent with tonnage tax regimes in other major maritime jurisdictions (e.g., the UK, Singapore, the Netherlands), which:

• Define "operating a ship" to include both owned and chartered vessels.
• Recognize partial charters (slot/space charters).
• Exclude vessels chartered out on long-term bareboat terms.

This alignment is important for ensuring the competitiveness of Indian shipping companies in the global market.

Practical and Procedural Impacts

For Businesses

• Eligibility Planning: Shipping companies must monitor their chartering arrangements to remain eligible for the tonnage tax scheme.
• Documentation: Detailed agreements and operational records will be essential to demonstrate compliance.
• Strategic Decisions: Companies may choose to avoid long-term bareboat charters to retain eligibility.

For Tax Authorities

• Enforcement: Authorities must scrutinize arrangements to prevent abuse, such as artificial splitting of charter terms.
• Guidance: Detailed rules or circulars may be required to address ambiguities, especially as chartering practices evolve.

For the Shipping Sector and Economy

• Encouragement of Active Shipping: The regime incentivizes operational shipping activity, not passive ownership.
• Support for Inland Waterways: The explicit inclusion of inland vessels can stimulate investment and growth in this sector.

Conclusion

Clause 226(1) of the Income Tax Bill, 2025, and Section 115VB of the Income-tax Act, 1961, together establish a robust and internationally aligned framework for determining eligibility for the tonnage tax regime in India. By encompassing both owned and chartered ships (including partial charters) and excluding long-term bareboat charters, the law targets genuine shipping operations and supports the growth of the sector. The extension to inland vessels marks a significant policy development, reflecting the government's commitment to multimodal transport. While the new Bill largely preserves the substance of the existing law, its re-enactment within a modern legislative framework offers opportunities for further refinement and adaptation to industry changes. Stakeholders must remain vigilant to evolving interpretations and potential reforms, ensuring that the Indian tonnage tax regime continues to serve its intended objectives of simplicity, competitiveness, and fairness.

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Full Text:

Clause 226 Tonnage tax scheme.

 

Dated: 9-5-2025