Monday, 29 April 2019

PREMIUM PAID ON KEYMAN INSURANCE POLICY - TAX TREATMENT UNDER INCOME TAX ACT





A Keyman insurance Policy, of the Life Insurance Corporation of India, etc. provides for an insurance policy taken by a business organisation or a professional organisation on the life of an employee, in order to protect the business against the financial loss, which may occur from the employee’s premature death.

Keyman insurance is an insurance taken by a company/firm on the life of an employee/ partner (keyman), whose services contribute substantially to the success of the business of the company/firm. The object of the keyman insurance is to cover the life of a Keyman for a monetary value so that on death of such keyman, the loss to the firm is recouped with monetary assistance (insured amount) received from the insurance company. 

Who can be a Keyman?
Keyman is individual whose skills, knowledge, experience or leadership are important to a business’ continued financial success. The “Keyman” is an employee or a director, whose services are perceived to have a significant effect on the profitability of the business. Generally a keyman could be a CEO, CIO, Chairman, MD, Directors or a key management person. But as there are several such one-man run companies across the world and there it is vital for companies to cover the single most important employee to hedge against any financial loss due to death of this keyman. Further anybody with specialized skills, whose loss can cause a financial strain to the company are eligible for Keyman Insurance. For example, they could be:
(i)            Chairman, Managing Director, Directors of a Company; or
(ii)          Key Sales People; or
(iii)         Key Project Managers; or
(iv)        People with Specific Skills
(v)          Partner of a firm

Taxability of receipts under a keyman Insurance Policy in the hands of company/firm, in the hands of keyman and in the hands of third persons are tabulated as under:-
S. No.
Particulars
Tax treatment
(i)
Any company or a firm buying keyman insurance for its employee
can claim a deduction for the premium paid for the policy as a business expense under Section 37(1) of the Income Tax Act. In other words, the premium paid on the Keyman Insurance Policy is allowed as business expenditure.
(ii)
If the policy, after attaining surrender value, is endorsed to the employee,


then the surrender value/maturity value is chargeable to tax under Section 17 of the Income Tax Act. This is because it is treated as `profit in lieu of salary’ in the hands of the employee.

Taxation of a sum received under the keyman insurance policy ( i.e. Tax Liability at the time of Maturity)
Tax liability at the time of maturity of keyman insurance policy depends on the person in whose hands it’s matured.
(iii)
Employer

Any amount received under a Keyman Insurance Policy either on maturity of the policy or due to death of Keyman is taxable under section 28 of the Act under the head “Profits and Gains from Business or Profession”.

(iv)
Keyman (Employee)
If Keyman insurance policy has matured in the hands of employee
(i)  In case the proceeds of Keyman Insurance Policy are  received by the employee,
Ø  the same will be taxable as salary in the year of receipt as it is a part of “Profits in liew of Salary”.
(ii)  During the continuance of the policy, if the same is assigned to the employee,
Ø  then the surrender value of the policy would be taxable in the hands of employee in the year of assignment.
(iii)  If the employer continues to pay premium on the policy even assignment theeof to employee,
Ø  the amount of premium so paid will be taxable as perquisite in the hands of the employee.

(v)
Third Party (say legal heirs of Keyman)


Any amount received by a third party with whom the employer does not have any employer-employee relationship under a Keyman Insurance Policy, the same amount will be chargeable to tax under section 56 of the Act under the head “Income from Other Sources”.


·          


KEY NOTE
v  The amount on claim or maturity under a keyman insurance policy is not exempt under Section 10 (10D) of the Income Tax Act if the company is paying the premiums. However, in case the policy has been assigned to the keyman and the keyman is paying the premiums, then the claim/maturity proceeds are exempt under Section 10 (10D).

v   As premiums are paid by the company, no tax benefit is offered to a key man. In case the policy is assigned to a key man, he/she can decide nominee of the policy. Consequently, in case of death of the insured during the policy tenure, his/her dependents would get death benefits which would be tax-free as per the Income Tax Act.

Premium paid on 'Keyman Insurance Policy' taken for benefit of directors and senior staff is allowable expenditure.
Dismissing the appeal of the revenue, the Tribunal held that; payment towards insurance premium under keyman policy was for protection of assessee's company from any risk that it may sustain by losing valuable services of their directors and its senior staff from any eventuality by any accident or death, it was an expenditure which was incurred wholly and exclusively for purposes of business, hence allowable. (Related Assessment year  2009-10)
[ITO v. Marcopolo Products (P) Ltd. (2016) 159 ITD 266 (ITAT Kolkata)]

Keyman insurance policy - Premium paid on Keyman insurance policy is allowable as deduction
The premium paid for Keyman insurance policy is allowable as deduction. The nature of expenditure is to be seen at the time it is incurred. Department could not sit on the armchair of the assessee and decide as to whether it was appropriate on business expediency for the assessee to incur such an expenditure or not. The argument of the department that it is a colourable device is rejected by the High Court. (Related Assessment year  1994-95 to 2000-01)
[CIT v. Escorts Heart Institute & Research Centre Ltd. (2012) 349 ITR 8 : 249 CTR 141 : 69 DTR 250 (Del), CIT v. Rajan Nanda (2012) 349 ITR 8 : 249 CTR 141 : 69 DTR 250 (Del)

Premium on the keyman insurance policy of a partner of the firm is wholly and exclusively for the purpose of business and is allowable as business expenditure.
[CIT v. B. N. Exports (2010) 323 ITR 178 : 231 CTR 227 : 190 Taxman 325 : 37 DTR 381 (Bom)]

CBDT Clarification on Admissibility of expenditure incurred by a Firm on Keyman Insurance Policy in the case of a Partner under section 37
The CBDT has clarified that expenditure incurred by a Firm on Keyman Insurance Policy in the case of a Partner is admissible under Section 37 of  Income Tax Act, 1961, as under:
CBDT Circular No. 38/2016 dated 22.11.2016 F.No.279/Misc./140/2015-ITJ

Subject: Admissibility of expenditure incurred by a Firm on Keyman Insurance Policy in the case of a Partner- Reg.

1. The issue relating to admissibility of expenditure incurred by a firm on Keyman Insurance Policy premium in the case of a partner has been a contentious one.
2. CBDT Circular no. 762/1998 dated 18.02.1998 clarifies that the premium paid on the Keyman Insurance Policy is allowable as business expenditure. However, in case of such expenditure incurred on a partner of a firm, the general approach of the assessing officers was to treat the expenditure as not incurred for the purpose of business and disallow the same.
3. High Courts have upheld the admissibility of the expenditure incurred by the firm in the case of the partners. Taking into account the Explanation to Clause (10D) of Section 10 of the Income-tax Act, 1961 and the CBDT Circular no. 762 dated 18.02.1998, Courts have held that a Keyman Insurance Policy is not confined to a policy taken for an employee but also extends to an insurance policy taken with respect to the life of another person who is connected in any manner whatsoever with the business of the subscriber (assessee).
4. The High Court of Punjab and Haryana in the case of M/s. Ramesh Steels, ITA No. 437 of 2015, vide judgement dated 2.2.2016 (NJRS citation 2016 -LL-0505-68), reiterating the above view held that, “the said policy when obtained to secure the life of a partner to safeguard the firm against a disruption of the business is equally for the benefit of the partnership business which may be effected as a result of premature death of a partner. Thus, the premium on the Keyman Insurance Policy of partner of the firm is wholly and exclusively for the purpose of business and is allowable as business expenditure”.
5. The above view has been accepted by CBDT and the judgment has not been further contested.
6. In view of this, it is a settled position that in case of a firm, premium paid by the firm on the Key-man Insurance Policy of a partner, to safeguard the firm against a disruption of the business, is an admissible expenditure under section 37 of the Act.
7. Accordingly, henceforth, on this settled issue, appeals may not be filed by the department and those already filed, may be withdrawn/ not pressed upon.
8. The above may be brought to the notice of all concerned





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