Friday, November 26, 2010

Status of Income Tax Refund

There is a very useful service started by Income tax department to find out status of your Income tax refund. But useful of such an important service is marred by bad data in the Income tax database. For example see following screen-shot from the website.

Notice that contradictory information is shown
Notice the text in bigger red circle. First column says "cheque has not been sent" and next column says "refund cheque is encashed".
Also, notice that refund is sent on 10-8-2006 for the Assessment Year 2007-08 i.e., Financial year ended on 31-3-2007. So, our Income tax department is so efficient and forward looking that they are able to send the refund on 10-8-2006 before year has ended on 31-3-2007!! I like this efficiency.

It clearly shows that Income tax database is in a mess. And such mess can be easily traced back to the people who enter data in to the system. So, it's a garbage in garbage out.

Recently (24-6-2010) there was a press release by Income tax that said:
“The Income Tax Department has taken the initiative to clean up the mismatched TDS data base. Many refunds are pending with the IT Department due to the mismatch of tax paid by the assessee, but the same is not being reflected in the computer software of the department.”

If you are interested in knowing reactions of citizen's of India on such public admission of failure - visit following site:

I am victim of above mentioned mismatched TDS database. My Income-tax return's TDS figures are no-where near to the data shown on Form AS-26 that I got from TIN website. And when I inquired Income tax department by visiting my Assessing Officer (AO) - TDS data on his computer's AS-26 for me - does not match with AS-26 that I got from the TIN website. So, I'm in a total mess because I'm trying to reconcile three different sets of TDS details viz., one that I've based on TDS certificates, second is Form 26-AS based on TIN website and third is TDS details (AS-26) that I got from AO's computer. You don't believe me? If you want proof - I'm ready to provide the same. Just write to me.

And now Income tax department has issued notices for recovery of tax. When rectification is filed u/s 154 for the correction - poor letter gets filed in AO's files. Ideally AO should do the correction in 6 months. In one of my correction dated 21-4-2003 for Assessment Year 2001-02 - no correction has been done so far and demand is still pending!! My wife has filed for correction u/s 154 on 19-5-2010 for AY 2008-09; and as on 24-11-2010 - when I appeared before her AO and inquired him if corrections were done. He said our CA should bring it to his notice by writing a letter and attaching copy of correction letter u/s 154 filed with him! In fact,  as per IT rules he was bound to have done the correction in 6 months i.e., on or before 18-11-2010!

I don't have doubt that we are living in "Incredible India."

Tuesday, November 16, 2010

Understanding IT Software Business Model in view of tax confusion

ISODA's writ petition demanding removal of Service tax on Packaged Software got dismissed by the Madras high court on 24th August 2010. The order said that government has right to levy Service tax on IT Software and is well within the rights conferred to it by the Indian Constitution. It further confirmed that software is 'goods' but transaction involving transfer of right to use - between ISODA member (software reseller) and End user could be 'sale' or 'service' depending upon what is written in the End User License Agreement  (EULA) from the software developer / copyright owner.

Tax experts concurred that interpretation of order could pose serious difficulty to the business operations of the software resellers - as would be difficult to read EULA of each Packaged Software license and determine whether the transaction is a 'sale' or 'service' or combination of the two. Doing so would be subject to the interpretation of a legal agreement - which is not within capacity of an ordinary end user or a software reseller or a field level government officer. But order did anticipate such problems and said that ISODA member could resist the tax demand when made; and could approach the court for clarification.

I feel that it is almost impossible for an average person to find out whether the transaction is a 'sale' or 'service' by merely reading the text of the EULA due to its complicated legal language and its interpretation. Due to this difficulty, it is likely that each government officer would interpret the EULA in a way convenient to his department. So, one can foresee a slow but sure build-up of numerous disputes and litigations over sale v/s service interpretation all over India.

Supreme court had opined in the TCS case that EULA is only a mechanism to enforce copyright protection i.e., restrict usage with certain terms and conditions. So, to read and interpret EULA to determine nature of transaction may not turn out to be a practical solution.

Upon doing the fine reading of the order and slight reflection, I came to conclusion that only handful of people understand business model of IT software properly. And all tax confusion is because of lack of this perspective. If one understands nature and characteristics IT software with its different modes of delivery - it is easy for any one to come to the understanding that one may not have to read EULA to determine nature of transaction between the End User and the software developer.

When we say that business of Packaged Software is an industry worth billions of dollars, there has to be a common thread that makes it as one big industry. Currently there is an urgent need to identify such commonality of characteristics and quickly establish nature of IT software transactions. For example, it is established by courts well that sale of Electricity is 'goods', providing Telephony services is a 'service', sale of mobile SIM cards is a 'service' for first transaction and 'goods' subsequently. It is simply not practical to keep reading and interpreting EULA of each packaged product. But, million dollar question is who will do this for the IT software industry in India?

So, I set out to put down basic ground realities of IT software business on a piece of paper for the sake of better understanding. In the piece below I have tried to draw the picture and you may decide - if it adds to your understanding of the nature of software transactions.

Information Technology Software vis-a-vis other types of software
Electronics has brought revolution to the modern world beyond what a men could have ever imagined just 150 years back. Over last 40 years a new branch of Electronics emerged with general purpose or programmable electronic devices called Computers and Programmable Logic Controllers (PLCs). Computers were found useful in business and PLCs were found useful in Industries for automation. This general purpose Computers and its network became very popular and started being used widely all over the world. This branch of Electronics popularly came to be known as Information Technology. While PLCs and other special purpose Electronic items also progressed at a fast pace. But among them except for Smart Mobile Phones most of the electronic items remained an item performing one specific function for which it was designed.

So, Information Technology (IT) is a branch of Electronics with attendant Hardware device, Software and network of such devices using Telecommunication Networks. Other programmable electronic items are known as PLCs, CNC machines, Industrial Robots etc.; and special purpose electronic items like Television sets, Audio-Video Players and Recorders, Digital Cameras, Telephone Instruments including Mobile phones, Automobile electronics, Rail Electronics, Satellite Electronics, Home gadget Electronics for Washing Machines, Microwave Ovens, Cooking Stoves etc. All of these electronic devices are run by great piece of software inside it but it's not IT software. In fact, TV programs recorded in studios for telecast on TV channels is called TV software! And we are not talking about it either, here.

Technical Nitti-gritty
Each of this electronic item is made up of two parts - popularly known as hardware and software. Software is of two type - embedded and programmable. Generally speaking, embedded software is hard-coded i.e., non-changeable software and is integral and essential part for working of the electronic device; it is considered part and parcel of hardware. While programmable software is modifiable and replaceable in nature - although non-essential many a times - but could make important contribution to the usefulness of the electronic device. So, when IT software is referred to - we are referring to programmable software used by computers or network of computers.

Such IT software is developed by a Software Developer using certain type of software called Development tools which include various type of Software languages like C, Java, Cobol, Pascal, Assembly, Fortran etc. and development tools like Visual Studio, Eclipse; and Databases like Oracle, DB2, Informix, Sybase etc.

IT Software developer would develop a software using above mentioned development tools for a specific client based on his specific requirement - called Customized Software; or develop a general purpose software - designed and developed keeping in mind needs of many users having similar requirement - called Packaged Software.

Packaged Software Business
Development of Packaged software is a business with great risks and great rewards. Few outstanding examples of this business model are Microsoft, Symantec, Adobe, McAfee, Autodesk etc. Software development, Manufacturing and Distribution of Packaged software is internationally a big business running in to billions of Dollars. In India, this business size is estimated to be Rs.10,000 crore a year.

Diagram below depicts the licensing and distribution model of Packaged IT Software.

IT Software Licensing and Distribution Model
First and foremost point to be noted to understand this business model is that packaged software is licensed to the end user by an End User License Agreement. It is an agreement between Software Developer (or Vendor - who is also a copyright owner, say Microsoft) - who is also a copyright owner and End User (say Coal India Ltd or Sachin Tendulkar).

Vendor provides his packaged software in the market to various types of customers like Replicators & Distribution companies, End users including companies/organizations,  hardware vendors on OEM basis and other independent software vendors/developers - by packaging it differently through various license agreements. And Vendor receives money for the same from various customers depending upon terms of the  license agreements.

Typically it's a two tier model - where an intermediate company is given license to replicate and distribute. It is essentially a license to do the "production" or "manufacturing"; and the resulting product is sold or distributed in the market to reach the end user via a traditional distribution channel or via eCommerce transaction.

Packaged Software delivered in many different forms
One important point to be noted here is that packaged software is delivered to end user in various forms of delivery viz., Media (CD/DVD/Storage device), Internet Download, Network Delivery, Backup Media/Storage Device etc. How packaged software is delivered to the end user does not matter or alter the nature of transaction. Even one of the explanatory notes released by Tax Research Unit said following:
D.O. F. No.334/1/2008-TRU Date: 29-2-2008
4.1.5 Software and upgrades of software are also supplied electronically, known as digital delivery. Taxation is to be neutral and should not depend on forms of delivery. Such supply of IT software electronically shall be covered within the scope of the proposed service.

On this point of forms of delivery there has been lot of confusion in the mind of various people - so this point requires careful consideration while deciding on nature of transaction.

Resell of Packaged Services
In the above diagram, one more point to be noted is that in this model - "Subscription License" which involves some kind of service for 1 or 2 year period - is productized (or packaged - in other words). So here, a service (if any) is packaged and sold, resold and distributed like a product. It is important to recognize this unique distribution model of "service" - as its improper understanding may pose some difficulty with respect to taxation issues. I would like to call it as a "resell of a service".

So, in the context of IT software - government should recognize and accept that "resell and distribution of service" should be treated as trading transaction i.e., "sale" - as there is no element of "service" provided by the reseller. Also, the transaction should not be subjected to TDS (Tax Deducted at Source) because its only a "sale" or "trading" transaction. In all these transactions, actual service provider is the software developer and actual service recipient is end user. And reseller is only facilitating the transaction by trading/sale of a productized service.

Given below is the tabular depiction of the Business and Distribution Model of IT Software.

Business and Distribution Model of IT Software
I know, above diagram is difficult at first glance; and would interest you only if you are really interested in understanding business and distribution model of IT software. Any way, give it a try.
Current taxation structure for ISODA members is depicted below:
Various Taxes on IT Software distribution in India

So, say when Sachin Tendulkar buys say Microsoft Office 2010 Home and Business Edition box pack with DVD by paying say Rs.10,000/- from a store he get a copy of software developed by Microsoft Corporation,USA, manufactured by Microsoft Operations Pte Ltd, Singapore (MO) and sold to Croma through an Indian distributor like Ingram Micro India Ltd (IMIL) via Microsoft Regional Sales Corporation, Singapore (MRSC). So, distribution path is MC --> MO --> MRSC --> IMIL --> Croma --> Sachin Tendulkar.

Similarly when Coal India Ltd (CIL) purchases say 10 licenses of Microsoft Office 2010 Std by paying Rs.15,000/- per license - they get a piece of paper authorising them to use Microsoft Office 2010 Std on 10 PCs. CIL can install the software on 10 PCs from a media pack (DVD) purchased from the reseller at Rs.1,500/- per piece - which could be one time purchase. For the sake of simplicity - we shall assume that CIL had this media pack from its earlier purchase. Note that this paper license also follows same distribution route as shrink wrap box purchased by Sachin Tendulkar.

But Sachin Tendulkar pays VAT @5% on Rs.10,000/- i.e., Rs.10,500/-; and CIL pays Service Tax @10% on Rs.1,50,000/- i.e., cost of paper license; and VAT at 5% on the total viz., 1,65,000/-, taking total payment to Rs.1,73,000/- (rounded off). And while making payment to the reseller - CIL deducts TDS at 10% and pays the balance amount viz., 1,55,700/- to the reseller.

Assuming reseller's purchase price of each Microsoft Office 2010 Std to be Rs.14,000/-; he would had paid (Rs.14,000/- x 10 no.s + 10% Service tax) x 5% VAT = Rs.1,61,700/- to the distributor IMIL. Of course, he would also deduct 10% TDS and pay only balance to the distributor. But he will have to deposit TDS amount with Income tax immediately. So, while reseller made a profit of Rs.10,000/- in books of accounts; he lost Rs.6,000/- from his cash flow. So, net effect of Service tax and TDS on reseller is that reseller keeps on depositing more than 60% of his gross margin to Income tax department.

As far as reseller is concerned he just takes an order from CIL at Rs.15,000/- per license, places it on IMIL at Rs.14,000/- per license, who in turn purchases it from MRSC at say USD 290/- (Rs.45/USD= Rs.13,000/-) per license. And MRSC procures it from MO at say USD 260/- per license. And MO pays say USD 200/- per license as royalty to Microsoft under its replication and distribution agreement.

Summary and Recommendation
So, following points are very clear from the business model described above:
1. Once Packaged software is manufactured by the replication and distribution licensee it assumes nature of a product i.e., goods.
2. In the hand of distributor and reseller the product is sold as it is - without any service addition from his side. So, there is no element of service provided by the distributor or a reseller to the end user. So, it may not be correct to levy 10% service tax on a packaged software product from the reseller/distributor.
3. Since distributor / reseller is not providing any service to the customer, it may not be correct to deduct 10% TDS on his payment.

I hope careful reading of above three diagrams will clear most of the misunderstanding that is prevalent among Government Officials, Judiciary and Politicians; and help them to devise, design and interpret IT Software taxation structure in proper context with reasonable clarity.

In summary, it is easy to understand for any one that transaction related to a Packaged IT Software is essentially a sale / trading activity as far as software reseller is concerned. So, sale and distribution of Packaged IT Software should be treated as trading i.e., sale/purchase of goods/services and should be liable to taxes under Excise/Customs duty, VAT and as Business Income under Income tax.

Bringing supply of Packaged IT Software products under Service tax / Royalty regime has brought unnecessary complexities to the sun-rise industry. If government decides to continue taxing this industry with complex taxation laws, Packaged Software industry will die a slow but certain death. It's time we all wake up and take corrective action.

Tryst with Medical Fraternity

My mother aged 72 years had a fall because a young child crossed her way while playing. She sat down on the ground and could not get up. She was brought home by some helpful people.

Upon simple visual examination we did not find any visible signs of a fracture like swelling or unbearable pain. Of course, she found it difficult to move right leg and had pain it was moved. So, a young physiotherapist was called in. She examined her and said that possibly there is no fracture and few sessions would do good to her. She started with some mild treatment on first day. But next day my mother sensed more pain compared to the previous day. So, we stopped her treatment - fearing that exercise may aggravate the pain and some experienced person should be called in.

Our friendly neighbour suggested a local bone-setter (hadd-vaidya) whose 3 generations have been curing ailments related to bones and setting bones. One young man arrived quickly and applied some oil and with a wooden massage aid and did some massage. My mother felt relief after the massage. He asked her to do Ice massage every few hours and apply a ayurvedic concoction (llap) every alternate day. He opined that hip joint ball is safe and fracture is not there. Even if it is there it could be hair line fracture. He suggested X-ray after few days of massage therapy - when things would get normal.

Next day we noticed a small red patch on the upper thigh. Next day it became bigger in size. When we inquired about it the young man said it's a good sign. He said, there is an injury inside (near bone) and blood oozing from there is now coming to the surface. It will become bigger and slowly fade in color and disperse. True to his explanation - the red patch became bigger and slowly started fading. But recovery was not good i.e., pain persisted after few massages also.

In the mean time, we contacted few clinics for a portable X-ray unit. We could locate one in our locality and contacted them. They said technician is on leave due to Diwali festival and he would return only after Diwali. We could not find any other lab with portable X-ray equipment.

So we called in the senior bone-setter. He found one leg to be shorter than other; and did some settings in his own way. He even moved the right leg up to the chest slowly; and there was not much pain. He also opined that possibly there is no fracture and she would become normal in about 10-15 days. My mother felt better after the visit. But after 2-3 days thing were back to old pain; and Diwali also came to an end.

On the first day after the Diwali, we called in the technician with portable X-ray machine. He promptly came and within half hour called saying there is a fracture in the hip joint requiring possibly an operation. My wife rushed to an Orthopaedic Surgeon and showed the report. He suggested surgical operation to fix the fractured bone with the help of a plate and screws. He mentioned his fees for operation and suggested that operation be done in some other hospital with ICU unit because of my mother's old age. He said all other charges for the hospitalisation will be extra. Upon inquiry he said cost of the Medicines, Operation theater and Anesthesiologist fees will be extra. Fine. He suggested two hospitals.

We inquired and settled with one because other one was almost full with only one vacant bed. I got contact of an Ambulance operator from the hospital. Contacted him to get Ambulance with a Wheel Chair. Rates quoted were higher than indicated by the hospital staff. So, after a negotiation we settled for Rs.550/- for a 500 meter ride to hospital!

Next day ambulance came one hour late after half a dozen phone calls. A young boy came in with a folded wheel chair. He did not know even how to open the folded wheel chair. After some struggle he managed and then put my mother in it and took it to the ambulance. The wheel-chair was lifted by 3 people to put inside the ambulance. But the wheel chair won't go inside because space between two cots was not enough to accommodate it. So, they lifted my mother and put her on one of the cots and made her sit there. Thus we reached the hospital. Ambulance guy had not brought the Bill for ambulance and demanded full money with promise to bring Bill by same day evening. After one week's follow-up we got the bill. I vowed not to call this Ambulance Service again and even gave feedback to the hospital about the service we got from them.

Experience at Hospital was good. Hospital insisted and made us sign a letter which stated that we will purchase all medicines from their own medical shop at Maximum Retail Price. Admission staff was naive and in-experienced but nursing staff was adequate in numbers and was of good quality. They were very prompt and gave required services with smile and speed. I paid the required deposit to the hospital by cheque first time on the day of the admission and second time just after the operation.

Just before the operation was to be commence Orthopaedic Surgeon inquired if we want to put 'steel' plate costing Rs.10,000/- or titanium plate costing Rs.17,000/-. This was a googly. He had not even informed us that cost of plate was not included in his fee for operation! My sister and brother-in-law, both of them doctors - who were present there - had no clue. So, we arbitrarily decided for one of them in absence of much information. We wish we had known about this earlier and could have taken an informed decision.

Operation went on well. Then after two days my mother was found fit to be discharged from the hospital. I had done some rough calculations of all expenses and made cash withdrawal from the bank with some extra amount. And we were presented with the rough bill. It turned out to be much higher than my rough calculations. So, upon getting detailed break-up of various items I learnt that they had included following items which I was unaware:

a. Doctor's visit fees for 5 visits at Rs.1,000/- each. One involved short walk with a walker, second involved dressing, other 3 just to inquire if everything was fine.

b. Handling fee charged by hospital at 10% of the cost of the plate that was fixed during the operation.

c. Cost of monitoring equipment used by the Surgeon during the operation was charged extra. We were not informed about its charge earlier.

d. Service Charges at 5% of the total hospital bill including cost of plate and consumables used during the operation.

Upon inquiry I learnt from my insurance agent that Service Charges would not be reimbursed by the insurance company unless proper description of service is given in writing. Upon inquiry I was asked to meet senior administrative staff about details of Service charge. Accounts department had only one person on duty; and she had no clue about description or rationale of service charge; but she knew that insurance company don't pay Service Charge to the patients.

After few days I called up and inquired about it with a senior person (Director - Medical). He said they charge only 5% against 10 to 12% charged by many other hospitals. He explained that it is towards nursing and other services rendered by the hospital to the patient. I requested him to give this explanation about Service charge in writing so that I can check with insurance company for reimbursement of the same. Also, I asked him if is fair to levy this charge on the Doctor's Operation and Visit fees - as I had never factored the same - while agreeing on Doctors fees. Also, I suggested to him that hospital should display notice about this at few prominent places. He promised to look in to it and get back in 2-3 days.

Any way, I paid the balance amount by Credit Card. And brought my mother back home. Now, she is recovering and will take about 1 month with walker; and two more month to get back to normal health.

Have medical insurance cover with adequate financial limit. When there is a need to go for hospitalization for a medical treatment be sure of following charges while deciding on hospital and doctor's fees:

1. Surgeon's fee including consultation fee, operation fee, cost of post operative treatment like dressing, physio therapy etc. Ask cost of Implants (if any) for various options available.

2. Fees for Anesthesiologist. Typically it is 20% of the surgeon's operation fee.

3. If patient is aged i.e., above 60 years then Physician's medical medical fitness certificate along with various tests like Blood Sugar, X-Ray, Cardiogram etc. will be there.

4. Hospitalization fees e.g., Room Charges, Operation Theater charges, Cost of monitoring equipments, Cost of Implants with handling fee, Cost of various medical tests, Cost of medicines, Service charges on entire amount (typically 5 to 12%).

5. Cost of Ambulance including wheel chair and other equipments.

If you have medical insurance then cost of room per day is typically 1% of the insurance cover. Try to select a room around this amount. If you decide to go for a higher price room then keep in mind that most of the costs (medical tests, doctor's fees etc.) will go up proportionately. Also, if you are not careful you may end up calling dietitian advising you what to eat during and after operation; with accompanying consultation fee bill.