SPECIAL ECONOMIC ZONE (SEZ) 2005 ACT

Introduction: Amidst WTO & GATS, Special Economic Zones have attained a centre stage. The Central Government has enacted the SEZ Act with the major objective of generation of additional economic activity, promotion of export of goods and services, investment from domestic and foreign sources and creation of employment opportunities. This Act is unique as it helps in backward and forward integration of the economy.

Until now, SEZs were functioning under the provisions of the Foreign Trade Policy and were eligible for fiscal incentives as provided under the relevant statues. The SEZ Act, 2005, provides the legal framework for establishment of SEZs and also for units operating in such zones.

Extent and Commencement:

This Act extends to the whole of India. The Act received the assent of the President on 23rd June, 2005 and has come into force on 10th February, 2006.

Some Important Definitions [Section 2]:

1. Developer: Developer means a person who, or a State Government which, has been granted by the Central Government a letter of approval under sub-section (10) of section 3 and includes an Authority and a Co-Developer.

2. Co-Developer: Co-Developer means a person who, or a State Government which, has been granted by the Central Government a letter of approval. Any person who, or a State Government which, intends to provide any infrastructure facilities in the identified area referred to in sub-section (2) to (4), or undertake any authorised operation may, after entering into an agreement with the Developer referred to in sub-section (10), make a proposal for the same to the Board for its approval and the provisions of sub-section (5) and sub-sections (7) to (10) shall, as far as may be, apply to the said proposal made by such person or State Government. Every person or a State Government referred to in sub-section (11), whose proposal has been approved by the Board and who, or which, has been granted letter of approval by the Central Government, shall be considered as a Co-Developer of the Special Economic Zone.

3. Unit: Unit means a Unit set up by an entrepreneur in a Special Economic Zone and includes an existing Unit, an Offshore Banking Unit and a Unit in an International Financial Services Centre, whether established before or established after commencement of this Act;

4. Existing Special Economic Zone: Existing Special Economic Zone means every Special Economic Zone which is in existence on or before the commencement of this Act; and which shall be deemed to have been notified and established in accordance with the provisions of this Act and the provisions of this Act shall, as far as may be, apply to such Zone accordingly.

5. Domestic Tariff Area: Domestic Tariff Area means the whole of India (including the territorial waters and continental shelf) but does not include the areas of the Special Economic Zones.

6. Free Trade and Warehousing Zone:Free Trade & Warehousing Zone means a Special Economic Zone wherein mainly trading and warehousing and other activities related thereto are carried on.

7. Manufacture: Manufacture means to make, produce, fabricate, assemble, process or bring into existence, by hand or by machine, a new product having a distinctive name, character or use and shall include processes such as refrigeration, cutting, polishing, blending, repair, remaking, re-engineering and includes agriculture, aquaculture, animal husbandry, floriculture, horticulture, pisciculture, poultry, sericulture, viticulture and mining.

8. Services: Services means such tradable services which –

(i) are covered under the General Agreement on Trade in Services annexed as IB to the Agreement establishing the World Trade Organisation concluded at Marrakes on the 15th April, 1994;

(ii) may be prescribed by the Central Government for the purposes of this Act;

(iii) earn foreign exchange;

Administration of the Act:

Board of Approval: A Board to be called the ‘Board of Approval’ has been constituted to exercise the powers conferred on, and to perform the functions assigned to it, under this Act. The Board of Approval shall have the duty to promote and ensure orderly development of the Special Economic Zones.

Development Commissioner: The Central Government may appoint any of its officers not below the rank of Deputy Secretary to the Government of India as the Development Commissioner of one or more Special Economic Zones.

Every Development Commissioner shall guide the entrepreneurs for setting up of Units in the Special Economic Zone; ensure and take suitable steps for effective promotion of exports from the Special Economic Zone; ensure proper co-ordination with the Central Government or State Government Departments concerned; monitor the performance of the Developer and the Units in a Special Economic Zone; discharge such other functions as may be assigned to him by the Central Government under this Act or any other law for the time being in force; and discharge such other functions as may be delegated to him by the Board.

Approval Committee: The Central Government shall constitute a Committee for every Special Economic Zone, to be called the ‘Approval Committee’.

The Approval Committee shall approve the import or procurement of goods from the Domestic Tariff Area, in the Special Economic Zone for carrying on the authorised operations by a Developer; approve the providing of services by a service provider, from outside India, or from the Domestic Tariff Area, for carrying on the authorised operations by the Developer, in the Special Economic Zone; monitor the utilisation of goods or services or warehousing or trading in the Special Economic Zone; approve, modify or reject proposals for setting up Units for manufacturing or rendering services or warehousing or trading in the Special Economic Zone; allow foreign collaborations and foreign direct investments (including investments by a person outside India) for setting up a Unit; monitor and supervise compliance of conditions subject to which the letter of approval or permission, if any, has been granted to the Developer or entrepreneur; and perform such other functions as may be entrusted to it by the Central Government or the State Government concerned, as the case may be.

Special Economic Zone Authority: The Central Government shall, by notification in the Official Gazette, constitute, for every Special Economic Zone, an Authority to be called the ‘……… (Name of the Special Economic Zone) Authority’ to exercise the powers conferred on, and discharge the functions assigned to, it under this Act. Every Authority shall be a body corporate by the name aforesaid, having perpetual succession and a common seal. Every Development Commissioner of the Special Economic Zone for which he is appointed as such shall be the Chief Executive of the Authority concerned.

Establishment of SEZ [Section 3]:

A Special Economic Zone may be established under this Act, either jointly or severally by the Central Government, State Government, or any person for manufacture of goods or rendering services or for both or as a Free Trade and Warehousing Zone.

Any person, who intends to set up a Special Economic Zone, may, after identifying the area, make a proposal to the State Government concerned for the purpose of setting up the Special Economic Zone. The State Government may, on receipt of the proposal forward the same together with its recommendations to the Board within such period as may be prescribed. The Board will further communicate its decision about approval/modifications/rejection to the Central Government. The Central Government shall grant a ‘Letter of Approval’ if proposal is approved. The Central Government may approve more than one Developer in a Special Economic Zone in cases where one Developer does not have in his possession the minimum area of contiguous land as may be prescribed, for setting up a Special Economic Zone and in such cases, each Developer shall be considered as a Developer in respect of the land in his possession. (The minimum area requirements for the multi-product SEZs would be 1000 hectares or more; for the service specific zone, the area requirement is 100 hectares. However, SEZs for specific industries like gems and jewellery, bio-technology, it can be set up on 10 hectares or more.)

Any person who, or a State Government which, intends to provide any infrastructure facilities in the identified area or undertake any authorised operation may, after entering into an agreement with the Developer, make a proposal for the same to the Board for its approval. Such person or State Government (who has been granted the Letter of Approval) shall be considered as a Co-Developer of the Special Economic Zone.

The Developer shall then submit the exact particulars of the identified area to the Central Government and thereupon that Government after satisfying that the requirements are fulfilled, shall notify the specifically identified area in the State as a ‘Special Economic Zone’.

Setting up of ‘Unit’:

The procedure for setting up of a Unit for carrying on the authorised operations in a Special Economic Zone is similar to that of the establishment of the SEZ. Any person, who intends to set up a Unit, shall submit a proposal to the Development Commissioner. The Development Commissioner shall then submit the same to the Approval Committee. Upon approval, the Development Commissioner shall grant a ‘Letter of Approval’ to that person to set up a Unit.

Setting up and operation of Offshore Banking Unit:

An application for setting up and operation of an Offshore Banking Unit (Branch of a Bank) in a Special Economic Zone may be made to the Reserve Bank. The Reserve Bank shall, if it is satisfied that the applicant fulfills all the conditions specified, grant permission to such applicant for setting up and operation of an Off-shore Banking Unit.

Setting up of International Financial Services Centre:

The Central Government shall approve only one International Financial Services Centre in a Special Economic Zone.

Taxation of SEZ:

Any goods or services exported out of, or imported into, or procured from the Domestic Tariff Area by –

(i) a Unit in a Special Economic Zone; or

(ii) a Developer;

Shall, subject to such terms, conditions and limitations, as may be prescribed, be exempt from the payment of taxes, duties or cess under all enactments specified in the First Schedule.

The Second Schedule to the Act makes modifications to the Income-Tax Act, 1961.

The Developer of SEZs, who was hitherto getting a deduction under Section 80IA (4) (iv), will get such exemption under Sec. 80IAB.

The units located in SEZs, hitherto getting deduction under Sec. 10A (1A), will continue to get the deduction under the new Sec. 10AA. Additional tax on dividend distributed out of the profits from units in SEZs will not be levied in view of the amendments to Sec. 10(34) and 115-O.

The financiers being an infrastructure capital fund or infrastructure capital company for such projects, hitherto exempt under Sec. 10(23G), will continue to get the same exemption in respect of projects covered by SEZs by an amendment made in 10(23G) by substituting Sec. 80IA(4) by Sec. 80IAB(3).

Tax on capital gains on shifting of assets to an SEZ is spared by insertion of Sec. 54GA. The benefit of the above concessions would be for ten consecutive years out of the first 15 years.

Banking Units — scheduled banks in India, foreign banks having offshore banking units in an SEZ and units of International Financial Services Centre — are entitled to a 100 per cent deduction of income for the first five consecutive years and 50 per cent thereafter.

This is secured by insertion of Sec. 80LA, while a consequential amendment to Sec. 197A ensures that no deduction of tax at source will be made for any payment of interest on deposits or borrowings made to a non-resident or a resident not ordinarily resident, while Sec. 10(15) (viii) exempts such non-residents themselves who will not be liable to tax.

CONCLUSION:

The Special Economic Zones (SEZ) Act, 2005 indeed provides a systemic approach for the establishment of SEZ and Units. The onus is on the Government to check and ensure that this Act is not used as a medium for exploiting the original land owners in the name of economic development and growth. ‘Identifying the area for SEZ’ may be the crux of the Act.

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