India: Union Budget 2016-17 Proposes Steps to Encourage Domestic Patent Regime

March 7, 2016

The much awaited Indian Union Budget 2016-17 was presented by the Hon’ble Indian Finance Minister, Mr. Arun Jaitley in the Indian Parliament on February 29, 2016.

The Budget broadly focuses on issues regarding tax, healthcare, education, energy, investments, infrastructure, agriculture and banking. The Indian Government has proposed a nominal GDP growth rate of 11%, that is, real growth plus inflation, for the year 2016-17 in the Budget. Direct and Indirect Tax Dispute Resolution Schemes are also being introduced for cases in litigation. It also proposed to provide a deduction of 100% of the profits and gains derived by start-ups involving innovation development and processes or services driven by technology or intellectual property. The benefit of a 100% tax exemption for 3 years will be available to all eligible startups, that is, those which are set up before April 1, 2019. As per the Start Up India: Action Plan, a startup is defined as an entity (private limited company, registered partnership firm or limited liability partnership) that aims to develop and commercialize a new product/service/process or a significantly improved existing product or service or process, that will create or add value for customers or workflow. The annual turnover should also be less than INR 25 crores. In order for a ‘Startup’ to be considered eligible, the Startup should be:

  • Supported by a recommendation from an Incubator established in a post-graduate college in India or,
  • Supported by an incubator which is funded by the Government as part of any specified scheme to promote innovation or,
  • Supported by a recommendation from an Incubator recognized by the Government or,
  • Funded by an Incubation Fund/Angel Fund/ Private Equity Fund/Accelerator/Angel Network registered with SEBI endorsing the innovative nature of the business or,
  • Funded by the Government as part of any specified scheme to promote innovation or,
  • Having a patent granted by the Indian Patent and Trademark Office in areas affiliated with the nature of business being promoted.

Unfortunately, the last criteria of eligibility regarding patents proves to be a shortfall in the context of the 100% tax exemption. This is so because it takes years for a patent to get granted, by which time the entity would no longer be able to avail the tax exemption, hence, leaving a question mark on the practicality of the said provision.

Introduction of a New Section in the Income Tax Act for Income from Patents

A major highlight of the Budget is that it also proposes a special patent regime where the existing 30% tax is reduced to 10% on income from the worldwide commercial exploitation of patents developed and registered in India. For the same purpose, it has been proposed that a new Section, that is, Section 115BBF, should be inserted in the Indian Income Tax Act, 1961, to provide that where the total income of the eligible assessee’s income includes any income by way of royalty for a patent, developed and registered in India, such a royalty shall be taxable at the rate of 10% (plus applicable surcharge and cess) on the gross amount of the royalty. These amendments are stated to come into effect from April 1, 2017, and will apply from the assessment year 2017-18.

Current Situation

Currently, a tax of 30% is being levied on a person owning a patent registered in India and exploiting it abroad as per the existing corporate tax and income tax laws. This is a burden on innovators and hampers the innovation process. The Budget has tried to overcome this shortfall in the Indian laws in order to make India the ‘next big thing’ when it comes to patents and to bring India to a level playing field as all other advanced economies of the world.

Changes in the Existing System

The Budget proposes that, now an income tax of 10% will be levied on a resident of India owning a patent developed and registered in India and exploiting it abroad instead of 30 % as earlier. The move aims to encourage research and development (R&D) in the country and is in consonance with the Start Up India initiative that the ruling Government in India is trying to promote. As per the Budget, only a resident, that is an individual or a company can avail of such a benefit. As per the provisions of the Income Tax Act, 1961, a resident can either be a:

  • An individual – If in the previous year, he was either present in India for a period amounting in all to 182 days or more or was present in India for a period amounting in all to 60 days or more in the previous year, provided that he has been present in India for a period amounting in all to 365 days or more during the 4 years immediately preceding the previous year.
  • A company – If it is considered an Indian company, whether its control and management is in India or abroad, wholly or partially, or a foreign company, if its place of control and management is wholly situated in India only.

Push to Pharmaceutical Companies

Pharma companies are expected to benefit from the aforesaid push to patents. Large Indian and global drug makers are set to benefit from the Budget announcement of a 10% tax rebate on the earnings from global patent filings. The move may help Indian drug makers such as Sun Pharma, Dr. Reddy’s, Lupin and Wockhardt, among others, who are expanding their global businesses through new drug filings. “Research is the driver of innovation and innovation provides a thrust to economic growth”, Mr. Arun Jaitley noted in his speech. Wockhardt Chairman, Mr. Habil Khorakiwala, also lauded the step by saying that it will spur innovation and manufacturing in India. Mr. D. G. Shah, Secretary General of the Indian Pharmaceutical Alliance (IPA) reportedly stated that the flat corporate tax structure of 25% on companies which commence production after 2016, will also give a boost to the drug manufacturers who might want to set up new manufacturing facilities.

Benefits of the Provisions

In order for an entity to gain the aforementioned advantage, it must fall within the definition of a ‘resident’ as per Section 6 of the Indian Income Tax act, 1961. So, Indian individuals and companies will get an incentive to operate in India instead of moving abroad, hence, tackling the problem of brain drain, thus, creating employment opportunities and promoting economic growth. The introduction of the new provision will encourage indigenous R&D activities in order to make India a global R&D hub. Therefore, the Government has decided to introduce this new concessional taxation regime for income from patents. The aim of this provision is to provide an additional incentive for companies to retain and commercialize the existing patents and develop new innovative patented products.

Budget and the E-Commerce Sector

India has allowed 100% foreign direct investment (FDI) in e-commerce with the restriction that companies can engage only in B2B e-commerce activities, that is, the trade taking place between a manufacturer and a wholesaler or a wholesaler and a retailer. The current FDI policy does not allow FDI in retail e-commerce activities, that is, B2C commerce, that is the trade taking place between a retailer and a consumer. The Department of Industrial Policy and Promotion had suggested that 100% FDI should be allowed in the market place model e-commerce activities and was reportedly working on guidelines for the same. The Budget was being eagerly awaited as it was expected that FDI would be introduced in retail e-commerce activities as well. But the Budget disappointed many e-commerce giants by not incorporating any provisions in this regard. This was one of the very few points of the otherwise pro-business Budget that were not received very well.

Concluding Remarks

The steps proposed in the Budget are pro-economic growth, giving special emphasis to the ‘Make In India’ vis-à-vis ‘Start Up India’ initiatives launched by Prime Minister Mr. Narendra Modi in recent times. If implemented effectively, India is sure to go up as a hot destination for business investments.

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