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Safe Harbour Rules As Per New Income Tax Act, 2025 &

When reading Safe Harbour Rules As Per New Income Tax Act, 2025 &, the important part is to keep the core facts intact while presenting the context in a clearer way for readers.

What This Update Means

Readers should treat this as a tax and compliance update, not as personal advice.

Key Reader Takeaways

  • The article explains how safe harbour rules simplify transfer pricing compliance.
  • It highlights that eligible transactions are accepted without scrutiny if conditions are met….
  • Summary: Safe Harbour Rules under Section 167 of the Income-tax Act, 2025 and Rules 86–102 provide a structured mechanism for accepting transfer pricing and income attribution without detailed scrutiny if specified conditions are met.
  • These rules cover international transactions, specified domestic transactions, and income attribution for certain non-resident businesses.

LAMORC DIGITAL Context

The detailed section below preserves the source-backed information so readers can review the full context and important details in one place.

Summary: Safe Harbour Rules under Section 167 of the Income-tax Act, 2025 and Rules 86–102 provide a structured mechanism for accepting transfer pricing and income attribution without detailed scrutiny if specified conditions are met. These rules cover international transactions, specified domestic transactions, and income attribution for certain non-resident businesses. Once eligibility criteria and prescribed thresholds (such as operating profit margins or interest rates) are satisfied, tax authorities must accept the declared income or transfer price, eliminating litigation and uncertainty. The framework includes detailed definitions, eligibility conditions, and safe harbour margins for sectors like IT services, loans, guarantees, manufacturing, and data centres. It also prescribes procedural requirements through Form 49, timelines, and verification mechanisms, including deemed validity provisions. However, documentation obligations continue, and safe harbour is not available for transactions involving low-tax jurisdictions. While simplifying compliance, the scheme involves trade-offs such as restriction on adjustments and MAP relief.

Comprehensive Analysis of Safe Harbour Rules As Per New Income Tax Act, 2025 And Income Tax Rules, 2026 Section 167 of the Act | Rules 86 to 102 | Form No. 49 International Transactions | Specified Domestic Transactions | Income Attribution

PART I — OVERVIEW & LEGISLATIVE FRAMEWORK

1. Introduction to Safe Harbour Rules

Safe Harbour Rules in transfer pricing provide pre-determined, clear benchmarks — satisfaction of which results in mandatory acceptance of the declared transfer price or income by income-tax authorities without further scrutiny. They eliminate the uncertainty and litigation costs associated with traditional arm’s length price (ALP) determination.

Under the Income-tax Act, 2025 (‘the Act’) and Income-tax Rules, 2026 (‘the Rules’), the safe harbour framework is exhaustive and covers three distinct categories:

2. Statutory Basis: Section 167 of the Income-tax Act, 2025

(2) The Board may make rules for safe harbour.

(3) ‘Safe harbour’ means circumstances in which the income-tax authorities SHALL ACCEPT — (a) the transfer price; or (b) the income, deemed to accrue or arise under section 9(2) — declared by the assessee. Three critical pillars flow from this definition:

3. Key Interconnected Provisions

PART II — SAFE HARBOUR: INTERNATIONAL TRANSACTIONS (Rules 86–93)

4. Definitions — Rule 86

Rule 86 provides detailed definitions applicable to the entire Rules 86–93 cluster. These definitions are critical because eligibility, thresholds, and computations all turn on these precise meanings.

4.1 Accountant [Rule 86(a)]

An accountant for cost-certification purposes (required for LVAIGS — Rule 89(2), Sl. 8) means:

4.2 Contract R&D Services — Software [Rule 86(b)]

Means research and development producing or relating to software, including:

4.3 Core Auto Components [Rule 86(c)]

4.4 Corporate Guarantee [Rule 86(d)]

Means an EXPLICIT corporate guarantee extended by a company to its WHOLLY OWNED SUBSIDIARY being a NON-RESIDENT in respect of short-term or long-term borrowing. Expressly EXCLUDES: letter of comfort, implicit corporate guarantee, performance guarantee, and any other guarantee of similar nature.

4.5 Data Centre & Data Centre Services [Rule 86(e)–(f)]

Data Centre: A dedicated secure space (within a building or centralised location) where computing and networking equipment is concentrated for collecting, storing, processing, distributing or allowing access to large amounts of data.

Data Centre Services: Services provided through physical infrastructure (land, buildings, mechanical/electrical power equipment, cooling systems, security) AND IT infrastructure (servers, computers, storage systems, operating systems, security solutions, networks and associated software platforms, networking equipment) AND human resources in India.

4.6 Generic Pharmaceutical Drug [Rule 86(g)]

A drug comparable to an already regulatory-authority-approved drug in dosage form, strength, route of administration, quality, performance characteristics, and intended use.

4.7 Information Technology Enabled Services (ITeS) [Rule 86(h)]

BPO services provided mainly with assistance/use of IT, including: back office operations, call/contact centre services, data processing and data mining, insurance claim processing, legal databases, medical transcription (excluding medical advice), translation services, payroll, remote maintenance or recovery, revenue accounting, support centres, website services, data search/integration/analysis, remote education (excluding content development), clinical database management services (excluding clinical trials).

4.8 Intra-Group Loan [Rule 86(i)]

A loan advanced to an associated enterprise being a non-resident, satisfying both conditions:

4.9 Knowledge Process Outsourcing (KPO) Services [Rule 86(j)]

BPO services requiring application of knowledge and advanced analytical/technical skills: geographic information systems, human resources services, engineering and design services, animation/content development and management, business analytics, financial analytics, market research. EXCLUDES R&D services.

4.10 Low Value-Adding Intra-Group Services (LVAIGS) [Rule 86(k)]

Services by one or more MNE group members for other members that satisfy ALL six conditions:

(i) In the nature of support services

(ii) Not part of core business — neither profit-earning activities nor economically significant activities of the MNE group

(iii) Not shareholder services or duplicate services

(iv) Do not require use of, nor lead to creation of, unique and valuable intangibles

(v) Do not involve assumption or control of significant risk, nor give rise to creation of significant risk, for the service provider

(vi) Do not have reliable external comparable services for ALP determination

LVAIGS expressly EXCLUDES: R&D services; manufacturing/production; IT software development; KPO; BPO; purchasing of raw/other materials for manufacturing; sales, marketing and distribution; financial transactions; extraction/exploration/processing of natural resources; and insurance/reinsurance.

4.11 Non-Core Auto Components [Rule 86(l)]

All auto components other than core auto components — i.e., all components not falling in Rule 86(c).

4.12 No Tax or Low Tax Country or Territory [Rule 86(m)]

A country or territory in which the maximum rate of income-tax is less than 15%.

4.13 Operating Expense [Rule 86(n)]

INCLUDES: costs incurred in the tax year in relation to the international transaction during normal operations, including ESOP/stock-based compensation provided by AEs to employees of the assessee; reimbursements to/from AEs at cost; depreciation and amortisation on assets used.

EXCLUDES: interest expense; provisions for unascertained liabilities; pre-operating expenses; foreign currency fluctuation losses; extraordinary expenses; losses on transfer of assets/investments (other than assets on which depreciation is included in operating expense); income-tax expense; and other expenses not relating to normal operations.

4.14 Operating Revenue [Rule 86(o)]

Revenue earned in the tax year in relation to the international transaction during normal operations (including ESOP costs). EXCLUDES: interest income; foreign currency fluctuation income; income on transfer of assets/investments (other than assets on which depreciation is included in operating expense); income-tax refunds; provisions written back; extraordinary incomes; and other incomes not relating to normal operations.

4.15 Operating Profit Margin [Rule 86(p)]

Ratio of operating profit (operating revenue in excess of operating expense) to operating expense, expressed as a percentage. This is the standard cost-plus margin measure: OPM = (OR − OE) / OE × 100%.

4.16 Relevant Tax Year [Rule 86(q)]

The tax year for which the option for safe harbour is validly exercised.

4.17 Software Development Services [Rule 86(r)]

Means: business application software and information system development using known methods and existing software tools; ancillary/support services for existing systems; converting/translating computer languages; adding user functionality to application programmes; debugging of systems; adaptation of existing software; preparation of user documentation. EXCLUDES R&D services.

5. Eligible Assessee for International Transactions — Rule 87

‘Eligible assessee’ is defined in Rule 87(1) as a person who has exercised a valid option under Rule 90 (or Rule 91 for IT services) and falls into one of the following categories:

5.1 Insignificant Risk — IT Services [Rule 87(2)]

The DGIT(Systems) shall have regard to the following five factors to determine ‘insignificant risk’ for IT services:

5.2 Insignificant Risk — Pharma R&D [Rule 87(3)]

For pharma contract R&D (Rule 87(1)(d)), the same five factors apply — verified by DGIT(Systems), AO, or TPO. The principle of substance-over-form (conduct over contract) applies equally here.

6. Eligible International Transactions — Rule 88

Rule 88 defines ‘eligible international transaction’ as a transaction between the eligible assessee and its associated enterprise, ONE OF WHICH IS NECESSARILY A NON-RESIDENT:

7. Safe Harbour Thresholds — Eligible International Transactions (Rule 89)

Rule 89(1) provides that the transfer price declared by an eligible assessee shall be accepted by income-tax authorities if: (a) the option is not held invalid under Rule 90; and (b) the price is in accordance with the circumstances in Rule 89(2). These thresholds constitute the operative safe harbour.

7.1 Threshold Table [Rule 89(2)]

Condition: Aggregate operating revenue from the transaction(s) ≤ ₹2,000 crore in the relevant tax year.

Covers: Software Development Services + ITeS + KPO Services + Contract R&D (Software) 2 Intra-Group Loan — INR Denominated Interest Rate ≥ SBI 1-year MCLR (as on 1st April of relevant tax year) PLUS:

(i) 175 bps — AE credit rating: AAA to A or equivalent

(ii) 325 bps — AE credit rating: BBB-, BBB, BBB+ or equivalent

(iii) 475 bps — AE credit rating: BB to B or equivalent

(iv) 625 bps — AE credit rating: C to D or equivalent

(v) 425 bps — No credit rating available AND total INR loans to all AEs ≤ ₹100 crore aggregate as on 31st March of relevant tax year 3 Intra-Group Loan — Foreign Currency Interest Rate ≥ Reference Rate (as on 30th September of relevant tax year) PLUS:

(a) Aggregate FC loans to all AEs ≤ ₹250 crore equivalent as on 31st March:

(b) Aggregate FC loans to all AEs > ₹250 crore equivalent as on 31st March:

This flat rate applies irrespective of credit rating or amount (subject to Rule 88(c) eligibility). No graduated rate structure for guarantees. 5 Pharma Contract R&D — Generic Drugs OPM / OE ≥ 24%

Condition: Aggregate operating revenue from such transactions ≤ ₹300 crore. Higher margin reflects R&D risk premium. 6 Manufacture & Export — Core Auto Components OPM / OE ≥ 12%

No aggregate revenue cap. Applicable to OEM manufacturers with ≥90% OEM turnover. 7 Manufacture & Export — Non-Core Auto Components OPM / OE ≥ 8.5%

No aggregate revenue cap. Lower threshold reflects lower value-addition vs. core components. 8 Receipt of LVAIGS Total LVAIGS amount ≤ ₹10 crore (including mark-up not exceeding 5%)

PLUS — the following must be certified by an accountant:

No aggregate revenue cap. New category introduced under the 2026 Rules. 7.2 Reference Rates for Foreign Currency Loans [Rule 89(3)(a)]

The ‘reference rate’ for FC-denominated intra-group loans, determined as on 30th September of the relevant tax year:

7.3 Credit Rating Rules [Rule 89(3)(b)]

7.4 Block Period [Rule 89(4)]

7.5 No Comparability Adjustment [Rule 89(5)]

7.6 TP Documentation and Accountant Report Continue [Rule 89(6)]

Sections 171 (TP documentation — mandatory maintenance and production) and 172 (accountant’s report in Form 48) apply irrespective of exercise of the safe harbour option. This is a critical compliance point — safe harbour reduces ALP litigation risk but does NOT waive documentation obligations.

8. Procedure for Safe Harbour — Non-IT Services (Rule 90)

Rule 90 governs the procedure for exercising safe harbour for all eligible international transactions EXCEPT provision of IT services (which has a separate procedure under Rule 91).

8.1 Filing Requirement [Rule 90(1)]

8.2 AO’s Verification [Rule 90(2)]

The AO verifies: (a) whether the assessee is an eligible assessee; and (b) whether the transaction is an eligible international transaction — before the option is treated as validly exercised.

8.3 Reference to TPO [Rule 90(3)–(5)]

Where the AO DOUBTS the valid exercise of the option, the AO shall make a reference to the Transfer Pricing Officer (TPO) for determination of eligibility. The TPO may require information/documents by notice in writing. The TPO, after giving a reasonable opportunity of hearing, may declare the option INVALID by order in writing if: (a) assessee does not furnish required information; (b) assessee is not an eligible assessee; or (c) transaction is not an eligible international transaction.

8.4 Objection to Commissioner [Rule 90(6)–(7)]

Assessee may file objections with the Commissioner (to whom TPO is subordinate) within 15 DAYS of receipt of TPO’s order. The Commissioner, after providing reasonable opportunity of hearing, shall pass appropriate orders on validity of the option.

8.5 Action After Validation [Rule 90(8)]

Where option is held valid, the AO shall verify whether the declared transfer price meets the circumstances in Rule 89(2). If it does NOT meet the thresholds, the AO shall adopt the operating profit margin/interest rate/commission specified in Rule 89(2).

8.6 Time Limits and Deemed Validity [Rule 90(9)–(10)]

8.7 Electronic Filing [Rule 90(11)]

Form No. 49 must be furnished electronically — either under digital signature or through Electronic Verification Code (EVC) — and verified by the person authorised to verify the return of income under section 265.

8.8 Non-Eligible Transactions [Rule 90(12)]

The AO may make a reference under section 166 (TPO reference) in respect of international transactions OTHER THAN the eligible international transaction. Safe harbour protection is transaction-specific — not a blanket shield.

9. Special Procedure for IT Services — 5-Year Block (Rule 91)

Rule 91 provides a distinct and significantly more taxpayer-friendly procedure for IT services safe harbour. The most critical feature is that a single filing in Year 1 covers five consecutive tax years.

9.1 Five-Consecutive-Year Validity [Rule 91(1)]

9.2 Revenue Threshold Tested in Year 1 Only [Rule 91(2)]

The ₹2,000 crore aggregate operating revenue threshold is tested for the FIRST of the five consecutive tax years only. If it is within the threshold in Year 1, no re-testing occurs in Years 2–5, even if revenues grow.

9.3 Filing — DGIT(Systems), Year 1 Only [Rule 91(3)]

Form No. 49 for IT services safe harbour is filed with the DIRECTOR GENERAL OF INCOME-TAX (SYSTEMS) (not the AO — unlike Rule 90). It must be filed on or before the due date for return of income for Year 1. The electronic verification and processing is entirely system-driven.

9.4 System-Based Verification and Intimation [Rule 91(4)–(5)]

After filing, verification of eligibility — eligible assessee, eligible transaction, and valid exercise — is done electronically. The DGIT(Systems) must intimate acceptance or rejection within 2 months from the end of the month in which the option is exercised.

9.5 Rejection Requires Opportunity [Rule 91(6)–(7)]

The option shall not be rejected unless the assessee is given an opportunity to remove defects. Where rejected electronically, written reasons must be provided.

9.6 Annual Compliance — Years 2 to 5 [Rule 91(8) & (13)]

9.7 Withdrawal — Limited Window [Rule 91(9)–(12)]

9.8 CEO / CMD Certification [Rule 91(16)]

9.9 DGIT(Systems) Role [Rule 91(17)]

The DGIT(Systems), with Board approval, lays down the data structure, standards, format and procedure for furnishing and verification of Forms, statements, orders, and declarations under Rule 91, including any modifications.

9.10 Non-Eligible Transactions [Rule 91(14)]

AO may still make a reference under section 166 for international transactions other than the eligible IT services transaction.

10. Exclusions from Safe Harbour — Rule 92

NOTHING in Rules 86 to 91 shall apply in respect of eligible international transactions entered into with an associated enterprise located in:

(a) Any country or territory NOTIFIED UNDER SECTION 176 (Notified Jurisdictional Area — countries with lack of effective exchange of information); OR

(b) A NO TAX OR LOW TAX COUNTRY OR TERRITORY (maximum income-tax rate < 15%)

This exclusion overrides all other eligibility conditions — even if every other condition is satisfied, safe harbour is unavailable if the AE is in a NJA or low/no-tax jurisdiction. 11. MAP Exclusion — Rule 93

Where the transfer price in relation to an eligible international transaction is accepted by income-tax authorities under section 167, the assessee shall NOT be entitled to invoke the Mutual Agreement Procedure (MAP) under any Double Taxation Avoidance Agreement under section 159, in respect of that transaction.

PART III — SAFE HARBOUR: SPECIFIED DOMESTIC TRANSACTIONS (Rules 94–98)

12. Definitions — Rule 94

Rule 94 defines two terms for Rules 94–98:

13. Eligible Assessee — Specified Domestic Transactions (Rule 95)

An ‘eligible assessee’ means a person who has exercised a valid option under Rule 97 and is:

14. Eligible Specified Domestic Transactions — Rule 96

An ‘eligible specified domestic transaction’ means a specified domestic transaction by an eligible assessee comprising of:

15. Safe Harbour Thresholds — Specified Domestic Transactions (Rule 97)

The Appropriate Commission determination or approval must be in accordance with the Electricity Act, 2003.

The regulator’s determination substitutes ALP analysis — regulatory pricing IS the arm’s length price for these entities. 2 Purchase of Milk / Milk Products by Co-operative from Members ALL of the following conditions must be simultaneously satisfied:

Price fixed on the basis of QUALITY — fat content AND Solid Not Fat (SNF) content of milk

The said rate is IRRESPECTIVE OF:

(i) Quantity of milk procured

(ii) Percentage of shares held by members in the co-operative society

(iii) Voting power held by members in the co-operative society

Rates are routinely declared by the co-operative in a TRANSPARENT manner and are AVAILABLE IN PUBLIC DOMAIN 15.1 No Comparability Adjustment [Rule 97(3)]

No comparability adjustment and no allowance under section 165(3)(a)(ii) shall be made to the transfer price declared by the eligible assessee and accepted under the safe harbour provisions.

15.2 Sections 171 and 172 Continue [Rule 97(4)]

TP documentation (section 171) and accountant’s report (section 172) obligations continue to apply for specified domestic transactions even if safe harbour is exercised.

16. Procedure — Specified Domestic Transactions (Rule 98)

16.1 Filing [Rule 98(1)]

16.2 AO Verification [Rule 98(2)]

AO verifies: (a) eligible assessee status; and (b) eligible specified domestic transaction status — before the option is treated as validly exercised.

16.3 AO’s Direct Verification Power [Rule 98(3)]

Unlike international transactions (where doubts are referred to the TPO), for specified domestic transactions the AO ITSELF can require the assessee to furnish information, documents or other evidence by written notice. There is no TPO reference mechanism for SDTs.

AO shall declare option invalid after giving reasonable opportunity of hearing if:

16.5 Appeal to PC/Commissioner [Rule 98(5)–(6)]

Assessee may file objections with the Principal Commissioner or Commissioner (to whom AO is subordinate) within 15 DAYS of receipt of AO’s order. PC/Commissioner shall pass appropriate orders after providing opportunity of hearing.

16.6 Time Limits [Rule 98(7)–(8)]

16.7 Electronic Filing [Rule 98(9)]

Form No. 49 to be furnished electronically — under digital signature or EVC — and verified by the person authorised to verify the return under section 265.

16.8 Non-Eligible Transactions [Rule 98(10)]

AO may refer other specified domestic transactions (not covered by safe harbour) to the TPO under section 166.

PART IV — SAFE HARBOUR: INCOME ATTRIBUTION — BUSINESS & PROFESSION (Rules 99–102)

Rules 99–102 provide a safe harbour for income attribution for two specific businesses of non-resident foreign companies that carry on limited activities in India — activities which may constitute a ‘business connection’ under section 9(2) but not a full permanent establishment. The safe harbour eliminates disputes on the quantum of income attributable to Indian activities for these specific foreign entities.

This directly connects to section 9(2) of the Act — income accruing or arising through business connection in India is deemed to accrue/arise in India. For the two categories below, section 9(2) income attribution is ‘safe harboured’ by a minimum profit percentage of gross receipts.

18. Definitions — Rule 99

18.1 Contract Manufacturer [Rule 99(a)]

An Indian company that produces specified electronic goods on behalf of any foreign company in a CUSTOM BONDED AREA.

18.2 Custom Bonded Area [Rule 99(b)]

A warehouse as referred to in section 65 of the Customs Act, 1962.

18.3 Eligible Assessee [Rule 99(c)]

18.4 Eligible Business [Rule 99(d)]

18.5 Gross Receipts [Rule 99(e)]

18.6 Raw Diamonds [Rule 99(f)]

Diamonds that satisfy ALL of the following:

18.7 Relevant Tax Year [Rule 99(g)]

The tax year in which the option for safe harbour is exercised (annual — unlike the 5-year IT services option under Rule 91).

18.8 Specified Electronic Goods [Rule 99(h)]

19. Safe Harbour Thresholds — Income Attribution (Rule 100)

Rule 100(1): Income-tax authorities shall accept the safe harbour option where the income declared from an eligible business is in accordance with the thresholds below, unless declared invalid under Rule 101(3).

Profits chargeable to tax under ‘Profits and gains of business or profession’. Higher threshold reflects the higher value/margin business of diamond trading. 2 Storage of Components in Custom Bonded Area for Sale to Contract Manufacturer Profits and Gains of Eligible Business ≥ 2% of Gross Receipts

Profits chargeable to tax under ‘Profits and gains of business or profession’. Lower threshold reflects the storage/warehousing nature of the activity. 19.1 Consequential Tax Treatment — Important Restrictions [Rule 100(3)]

(a) No further deductions under sections 28 to 34, 44 to 49, 51, 52, Schedule IX and Schedule X — deemed to have been fully given effect to already

(b) Written Down Value (WDV) of assets calculated as if depreciation had been claimed and allowed for the relevant tax year

(c) No set-off of unabsorbed depreciation (section 33(11)) or carried forward business loss (section 112(1))

(d) No set-off of loss from other business (section 108(1)) or from other head of income (section 109) against income from this eligible business

(e) This ‘ring-fencing’ of income is a significant trade-off that taxpayers must evaluate before exercising the option. 19.2 TP Provisions Continue [Rule 100(4)]

If the eligible assessee also enters into international transactions or specified domestic transactions while carrying on the eligible business, sections 171 and 172 (TP documentation and accountant’s report) continue to apply for those transactions.

20. Procedure — Income Attribution Safe Harbour (Rule 101)

20.1 Filing — BEFORE Return [Rule 101(1)]

20.2 Default Without Election [Rule 101(2)]

If the assessee does NOT exercise the safe harbour option, income from eligible business is determined under the normal provisions of the Act (without Rule 100(2) thresholds) — i.e., normal scrutiny and ALP/attribution analysis.

20.3 AO’s Power to Declare Invalid [Rule 101(3)]

The AO may declare the option invalid by written order if the assessee has:

These are stronger grounds than mere non-eligibility — implying deliberate misstatement. The AO must provide reasonable opportunity of hearing before declaring the option invalid, and must serve a copy of the order.

20.4 Electronic Filing [Rule 101(6)]

Form No. 49 furnished electronically under digital signature or EVC; verified by person authorised to verify return under section 265.

21. MAP Exclusion — Income Attribution (Rule 102)

The assessee shall NOT be entitled to invoke the Mutual Agreement Procedure under any DTAA (section 159) in relation to an eligible business, if the assessee has exercised the option for safe harbour under Rule 101 AND the option has not been declared invalid.

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