MAT on SEZ: A Red Flag for Investors

The Minimum Alternate Tax (MAT) was introduced in 1987 to bring companies that paid no corporate taxes or very little tax, after taking advantage of the exemptions provided by the Income-Tax Act, into the tax net.Under the Special Economic Zone (SEZ) Act, more>>

MAT on SEZ : A Red Flag for Investors

George Korah, Chartered Accountant

The Minimum Alternate Tax (MAT) was introduced in 1987 to bring companies that paid no corporate taxes or very little tax, after taking advantage of the exemptions provided by the Income-Tax Act, into the tax net.
Under the Special Economic Zone (SEZ) Act, units get 100% tax exemption on profits earned for the first five years, while developers get exemption for ten years. Additionally, units get a 50% exemption for the next five years and another 50% exemption on re-invested profits in the following five years
Both developers as well as units in the tax-free enclaves were exempted from MAT under Section 115 JB of the Income Tax Act.
The Finance Act 2011 has now introduced a levy of 18.5 per cent Minimum Alternate Tax (MAT) on Special Economic Zones (SEZs) developers and the units therein.
This will impact the attractiveness of SEZs in India as manufacturing hubs and export bases. Besides, this step is seen as an inconsistency in policy. SEZs have been a big success story-the SEZs set up after the SEZ Act of 2005 currently account for more than 53% of total exports from all SEZs-exports from these SEZs have grown exponentially from just over Rs 5,000 crore in 2007-08 to over Rs 117,000 crore in 2009-10.
There are still more than 400 SEZs in India which are yet to reach the operational stage. With more than 500 operational SEZs in India, there could have been a very strong chance of India emerging as an export hub for many sectors.
One objective of the SEZ scheme is to ensure a stable policy framework, based on which investors can make a decision to invest in establishing SEZs or setting up SEZ units. Changing the rules of the game for developers or units who have already committed funds upsets the financial calculations that guided the investment decision. Withdrawing concessions for parties who have already committed funds undermines credibility of the Government and imposes unforeseen costs on the investors.
One of the reasons for levying MAT on SEZs according to the Central Board of Direct Taxes is that it has detected revenue diversion by corporates from domestic operations to the tax free enclaves.
"There is a huge shift of turnovers from non-SEZs to SEZs. There is diversion of current revenue to SEZs," Central Board of Direct Taxes (CBDT) Joint Secretary (Tax Policy and Legislation) Ashutosh Dikshit said.
According to the government's projection, the revenue foregone on tax incentives to SEZ units in the current fiscal is Rs 5,126 crore, up from Rs 4,233 crore in 2009-10
As expected, the issue of MAT on SEZs has already come up before the High Court.
On April 25, 2011 the Hon’ble High Court of Madras agreed to issue notices on a petition by a group of Special Economic Zone (SEZs) developers against the Minimum Alternate Tax (MAT) levy introduced in the Union Budget of 2011-12.
The contention of the petitioners, the Tamil Nadu Association of SEZ Infrastructure Developers, is that they and the units in SEZs are exempt from MAT under Section 115 of the Income Tax Act. These fiscal incentives have been promised and committed in the SEZ Act, 2005, they argue. A representative from the Association said the Union Government had negated its own SEZ Act. The Act said it would exempt all taxes and levies for those companies which set up units in SEZs.
An association member said withdrawal of the promised concessions under the SEZ Act was bound to send a wrong signal to investors, both domestic and overseas.
The Government’s decision to bring about unexpected changes in tax dispensations can only undermine the confidence of investors, raising serious doubts about the claims of stable policy framework and make investment in SEZs less attractive. In all fairness, this levy of MAT, if at all, should have been imposed on ‘new’ developers & units- those who were initiating SEZs or units in SEZs after April 1, 2011