Business Standard

ELECTORAL BONDS MAY FAIL THE TAX TEST

There is a lack of clarity on whether donors will get tax exemption on a par with electoral trusts

- SUDIPTO DEY

Amidst the divided opinions on whether electoral bonds as a tool will be effective in curbing the use of black money in the election process, there appears to be a question mark over their tax-exemption status. Donations made through an electoral trust, a section 25 not-for-profit company, are eligible for tax deduction under section 80GGB/80GGC of the Income-Tax (I-T) Act. “We are not sure whether donor of electoral bond will get tax exemption,” says Anil Verma, head, Associatio­n for Democratic Reforms (ADR).

Tax experts point out that the I-T Act needs to be amended to give electoral bonds tax exemption status. “As of now, donations through electoral bonds are not eligible for any tax deduction in the hands of the donors,” says Amit Singhania, partner, Shardul Amarchand Mangaldas & Co. For the recipient parties, contributi­on received through electoral bonds would be excluded from their “taxable income”.

However, not everyone is convinced about the change in tax treatment between electoral trusts and electoral bonds. Ashish Sodhani, partner at Nishith Desai Associates, argues that buying of electoral bonds should not result in any tax implicatio­ns for the companies. Hundred per cent deduction is allowed on contributi­ons made to an electoral trust or to any political party registered under section 29A of the Representa­tion of the People Act, 1951 (43 of 1951). “Therefore, the amount of contributi­on made by it to the political party is allowable as a deduction to the company when it pays its taxes,” he says.

Experts, however, feel that corporates may not be comfortabl­e donating through electoral bonds given the ambiguity over tax treatment. According to Himanshu Sinha, partner, Trilegal, both electoral bonds and electoral trusts are mechanisms for facilitati­ng greater corporate participat­ion in election funding. “They need to be on a par when it comes to the tax treatment,” he says.

Experts note that electoral trusts as a vehicle for making political donations have been gathering momentum over the past few years with 18 of them getting registered with the Election Commission of India. But, the recently released data on the contributi­ons made by various companies through such trusts to different political parties made several donors nervous. There was some apprehensi­on of harassment to donors by the political parties. Following this, there was a demand from a section of corporate India to make such political donations anonymous. According to the electoral bond scheme announced by the government, political parties are not required to maintain records of the donors contributi­ng through this route. Further, the donor, subject to meeting KYC (know your customer) requiremen­ts of the bank, does not need to disclose the name of the political party while purchasing the electoral bond.

Experts, however, point out that the anonymity cloak under the bond scheme is not impregnabl­e. “The issuer bank and the bank that receives the bond for conversion into cash always know the purchaser,” Sodhani says.

ADR’s Verma says, if the donor prefers anonymity at the cost of not getting tax exemption, they will go for electoral bonds. But, if the donor is prepared to disclose identity and avail tax exemption, they would take the electoral trust route, he says.

Further, the Finance Act, 2017, made several relaxation­s in the Companies Act, 2013, when it comes to “Prohibitio­ns and restrictio­ns regarding political contributi­ons”. It has done away with the requiremen­t to disclose the name of the political party to which the corporate has made a donation. The only requiremen­t is to mention “total amount contribute­d” in the profit and loss account. The government has also removed the cap on political donations by companies. Earlier, companies were

permitted to donate up to 7.5 per cent of average net profit of the last three years. Now, companies are allowed to contribute as much as they want, irrespecti­ve of whether they are profitable or loss-making.

Experts point out that one of the distinctiv­e features of electoral bonds is that there is no cap on the amount of donations made through such bonds. This, along with the relaxation­s, may open the door for unmonitore­d funding of political parties by corporates, say some experts.

These changes and relaxation­s by the government have been challenged through public interest litigation in the Supreme Court that is being heard by a three-judge Bench, headed by Chief Justice Dipak Misra. “It would be interestin­g to see what the Supreme Court has to say in this regard,” says Sudipta Bhattachar­jee, partner, tax controvers­y management & contract documentat­ion, Advaita Legal.

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 ?? ILLUSTRATI­ON:BINAY SINHA ??
ILLUSTRATI­ON:BINAY SINHA

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