CORPORATE AND PROFESSIONAL UPDATE DECEMBER 26, 2015

CORPORATE AND PROFESSIONAL UPDATE DECEMBER 26, 2015

2

INCOME TAX ACT

SECTION 9

INCOME – DEEMED TO ACCRUE OR ARISE IN INDIA

Business income : In absence of any material on record as to whether non-resident agents appointed by assessee rendered services abroad and they had no business connection in India, question regarding assessee’s obligation of deduction of tax at source on payment of sales commission to them was to be disposed afresh -[2015] 64  253 (Chennai – Trib.)

SECTION 10(23C)

EDUCATIONAL INSTITUTIONS

Sub-clause (iiiab): Where assessee-society running educational institutions filed its return claiming exemption under section 10(23C)(iiiab) in view of fact that Government was substantially financing and interested in management of assessee, its claim for exemption was to be allowed – [2015] 64  312 (Punjab & Haryana)

SECTION 68

CASH CREDITS

In terms of section 68, assessee is liable to disclose only source(s) from where he has himself received credit and it is not burden of assessee to show source(s) of his creditor nor is it burden of assessee to prove creditworthiness of source(s) of said sub-creditors – [2015] 64  329 (Delhi)

Donations : Where assessee claiming himself to be a Sewadar of Historic Dera, deposited donations received in name of Dera in his own bank account and, moreover, he failed to prove that any charitable activity in terms of section 2(15) was ever carried out by him, authorities below were justified in making addition to his income under section 68 in respect of donations in question – [2015] 64  311 (Punjab & Haryana)

SECTION 92C

TRANSFER PRICING – COMPUTATION OF ARM’S LENGTH PRICE

Bright line test (BLT) is not a valid method for either determining the existence of international transaction or for the determination of ALP of such transaction – [2015] 64  328 (Delhi)

Comparables and adjustments/Adjustments-Interest : ALP of an international loan transaction, which was designated in hard currency, is to be ascertained, interest rate on rupee transactions in India is not relevant -[2015] 64  251 (Bangalore – Trib.)

Comparables and adjustments/Adjustments-Interest : In case of interest on outstanding interest from loan transactions, that was designated in hard currency, rate of interest and terms applicable in materially similar situation of delay in payment of interest to Exim Bank would apply mutatis mutandis for determining ALP -[2015] 64  251 (Bangalore – Trib.)

SECTION 92CA

TRANSFER PRICING – REFERENCE TO TPO

Where value of international transactions entered into between assessee and its AE exceeded Rs. 5 crores, Assessing Officer was required to refer matter to TPO for determining ALP – [2015] 64  252 (Madras)

SECTION 151

INCOME ESCAPING ASSESSMENT – SANCTION FOR ISSUE OF NOTICE

Recording of satisfaction : SLP dismissed against High Court’s ruling that where Joint Commissioner recorded satisfaction in mechanical manner and without application of mind to accord sanction for issuing notice under section 148, reopening of assessment was invalid – [2015] 64  313 (SC)

SECTION 153C

SEARCH AND SEIZURE – ASSESSMENT OF INCOME OF ANY OTHER PERSON

Applicability of : Even in cases where Assessing Officer of person searched and assessee who is sought to be assessed under section 153C is same, still Assessing Officer is required to record his satisfaction that assets/documents seized belong to a person (assessee) other than searched person – [2015] 64 309 (Delhi)

SECTION 269UC

PURCHASE OF IMMOVABLE PROPERTY BY CENTRAL GOVERNMENT – RESTRICTIONS ON TRANSFER OF PROPERTY

Where immunity certificate issued by department under KVSS to vendor covered impugned transaction of sale of property, non-filing of form 37-I by vendor would not entitle department to launch prosecution under sections 269UC and 276AB against her – [2015] 64  254 (Madras)

SECTION 271(1)(c)

PENALTY – FOR CONCEALMENT OF INCOME

Recording of satisfaction : Before levying penalty under section 271(1)(c), it is incumbent upon Assessing Officer to state whether penalty was being levied for concealment of income or for furnishing of inaccurate particulars of income – [2015] 64  155 (Kolkata – Trib.)

COMPETITION ACT

SECTION 3

PROHIBITION OF AGREEMENTS – ANTI-COMPETITIVE AGREEMENTS

Where evidences showed that exhibition of Tamil and Malayalam films to Informant theatre were denied at behest of OP association representing film theatres in Kerala and OP held position of strength in film industry in Kerala, conduct of OP was anti-competitive and penalty was to be imposed on it – [2015] 64  207 (CCI)

PML ACT

SECTION 45

SPECIAL COURTS – OFFENCES TO BE COGNIZABLE AND NON-BAILABLE

Where applicant was arrested for schedule offence of fraudulent remittance of foreign currency and he failed to prove money received by him was not crime money, bail could not be granted to him during period of investigation – [2015] 64  249 (Gujarat)

SERVICE TAX

SECTION 78

PENALTY – FOR EVASION OF DUTY/TAX

For computing reduced penalty of 25 per cent in section 78, ‘service tax assessed or determined under section 73(2)’ is taken, which shall include both : (a) sums paid prior to issuance of notice and appropriated in adjudication order; as well as (b) further sums confirmed as payable in adjudication order – [2015] 64 243 (Allahabad – CESTAT)

CENTRAL EXCISE ACT

SECTION 3A

CHARGE/LEVY – EXCISE DUTY BASED ON PRODUCTION CAPACITY

Since section 3A does not itself provide for levying of interest, rules 96ZO, 96ZP and 96ZQ cannot do so and none of other provisions of Act can come to aid of revenue; hence, demand for interest was set aside on merits. – [2015] 63  310 (SC)

CUSTOMS TARIFF ACT

SECTION 2

CLASSIFICATION – VIRGINIAMYCIN

Virginiamycin, a pure chemical, is classifiable as ‘Vitamin’ and cannot be classified as ‘animal feed’, as same is not imported in premix condition – [2015] 64  242 (SC)

CENTRAL EXCISE RULES

RULE 4

DUTY PAYABLE ON REMOVAL

Without giving any reason, Commissioner could not deny extension of permission to store goods without payment of duty outside factory premises, when both Range Superintendent and Division Officer found case genuine [2015] 64  59 (Mumbai – CESTAT)

STATUTES

DIRECT TAX LAWS

Section 119 of the Income-tax Act, 1961 – Income-tax Authorities – Instructions to Subordinate Authorities – Facilitating Taxpayers’ Electronic Interface with the Department

Section 115JB of the Income-tax Act, 1961 – Minimum Alternate Tax (MAT) – Applicability of MAT on Foreign Companies for period prior To 1-4-2015 - INSTRUCTION NO.18/2015 [F.NO.153/12/2015-TPL], DATED 23-12-2015

CORPORATE LAWS

Special Deposit Scheme, 1975 – Payment of Interest for Calendar Year 2015 – CIRCULAR DGBA.GAD.NO.2023/15.01.001/2015-16, DATED 23-12-2015

Withdrawal of all old series of Banknotes issued prior to 2005

Reporting of Compliance with Indian Ownership and Control

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances; Hope the information will assist you in your Professional endeavors. For query or help, contact: info@carajput.com or call at 9555555480

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CORPORATE AND PROFESSIONAL UPDATE DECEMBER 25, 2015

CORPORATE AND PROFESSIONAL UPDATE DECEMBER 25, 2015

5INCOME TAX ACT

SECTION 9

INCOME – DEEMED TO ACCRUE OR ARISE IN INDIA

Business income : In absence of any material on record as to whether non-resident agents appointed by assessee rendered services abroad and they had no business connection in India, question regarding assessee’s obligation of deduction of tax at source on payment of sales commission to them was to be disposed afresh -[2015] 64  253 (Chennai – Trib.)

SECTION 10(23C)

EDUCATIONAL INSTITUTIONS

Sub-clause (iiiab) : Where assessee-society running educational institutions filed its return claiming exemption under section 10(23C)(iiiab) in view of fact that Government was substantially financing and interested in management of assessee, its claim for exemption was to be allowed – [2015] 64  312 (Punjab & Haryana)

SECTION 68

CASH CREDITS

In terms of section 68, assessee is liable to disclose only source(s) from where he has himself received credit and it is not burden of assessee to show source(s) of his creditor nor is it burden of assessee to prove creditworthiness of source(s) of said sub-creditors – [2015] 64  329 (Delhi)

Donations : Where assessee claiming himself to be a Sewadar of Historic Dera, deposited donations received in name of Dera in his own bank account and, moreover, he failed to prove that any charitable activity in terms of section 2(15) was ever carried out by him, authorities below were justified in making addition to his income under section 68 in respect of donations in question – [2015] 64  311 (Punjab & Haryana)

SECTION 92C

TRANSFER PRICING – COMPUTATION OF ARM’S LENGTH PRICE

Bright line test (BLT) is not a valid method for either determining the existence of international transaction or for the determination of ALP of such transaction – [2015] 64  328 (Delhi)

Comparables and adjustments/Adjustments-Interest : ALP of an international loan transaction, which was designated in hard currency, is to be ascertained, interest rate on rupee transactions in India is not relevant -[2015] 64  251 (Bangalore – Trib.)

Comparables and adjustments/Adjustments-Interest : In case of interest on outstanding interest from loan transactions, that was designated in hard currency, rate of interest and terms applicable in materially similar situation of delay in payment of interest to Exim Bank would apply mutatis mutandis for determining ALP -[2015] 64  251 (Bangalore – Trib.)

SECTION 92CA

TRANSFER PRICING – REFERENCE TO TPO

Where value of international transactions entered into between assessee and its AE exceeded Rs. 5 crores, Assessing Officer was required to refer matter to TPO for determining ALP – [2015] 64  252 (Madras)

SECTION 151

INCOME ESCAPING ASSESSMENT – SANCTION FOR ISSUE OF NOTICE

Recording of satisfaction : SLP dismissed against High Court’s ruling that where Joint Commissioner recorded satisfaction in mechanical manner and without application of mind to accord sanction for issuing notice under section 148, reopening of assessment was invalid – [2015] 64  313 (SC)

SECTION 153C

SEARCH AND SEIZURE – ASSESSMENT OF INCOME OF ANY OTHER PERSON

Applicability of : Even in cases where Assessing Officer of person searched and assessee who is sought to be assessed under section 153C is same, still Assessing Officer is required to record his satisfaction that assets/documents seized belong to a person (assessee) other than searched person – [2015] 64 309 (Delhi)

SECTION 269UC

PURCHASE OF IMMOVABLE PROPERTY BY CENTRAL GOVERNMENT – RESTRICTIONS ON TRANSFER OF PROPERTY

Where immunity certificate issued by department under KVSS to vendor covered impugned transaction of sale of property, non-filing of form 37-I by vendor would not entitle department to launch prosecution under sections 269UC and 276AB against her – [2015] 64  254 (Madras)

SECTION 271(1)(c)

PENALTY – FOR CONCEALMENT OF INCOME

Recording of satisfaction : Before levying penalty under section 271(1)(c), it is incumbent upon Assessing Officer to state whether penalty was being levied for concealment of income or for furnishing of inaccurate particulars of income – [2015] 64  155 (Kolkata – Trib.)

COMPETITION ACT

SECTION 3

PROHIBITION OF AGREEMENTS – ANTI-COMPETITIVE AGREEMENTS

Where evidences showed that exhibition of Tamil and Malayalam films to Informant theatre were denied at behest of OP association representing film theatres in Kerala and OP held position of strength in film industry in Kerala, conduct of OP was anti-competitive and penalty was to be imposed on it – [2015] 64  207 (CCI)

PML ACT

SECTION 45

SPECIAL COURTS – OFFENCES TO BE COGNIZABLE AND NON-BAILABLE

Where applicant was arrested for schedule offence of fraudulent remittance of foreign currency and he failed to prove money received by him was not crime money, bail could not be granted to him during period of investigation – [2015] 64  249 (Gujarat)

SERVICE TAX

SECTION 78

PENALTY – FOR EVASION OF DUTY/TAX

For computing reduced penalty of 25 per cent in section 78, ‘service tax assessed or determined under section 73(2)’ is taken, which shall include both : (a) sums paid prior to issuance of notice and appropriated in adjudication order; as well as (b) further sums confirmed as payable in adjudication order – [2015] 64 243 (Allahabad – CESTAT)

CENTRAL EXCISE ACT

SECTION 3A

CHARGE/LEVY – EXCISE DUTY BASED ON PRODUCTION CAPACITY

Since section 3A does not itself provide for levying of interest, rules 96ZO, 96ZP and 96ZQ cannot do so and none of other provisions of Act can come to aid of revenue; hence, demand for interest was set aside on merits. – [2015] 63  310 (SC)

CUSTOMS TARIFF ACT

SECTION 2

CLASSIFICATION – VIRGINIAMYCIN

Virginiamycin, a pure chemical, is classifiable as ‘Vitamin’ and cannot be classified as ‘animal feed’, as same is not imported in premix condition – [2015] 64  242 (SC)

CENTRAL EXCISE RULES

RULE 4

DUTY PAYABLE ON REMOVAL

Without giving any reason, Commissioner could not deny extension of permission to store goods without payment of duty outside factory premises, when both Range Superintendent and Division Officer found case genuine

STATUTES

DIRECT TAX LAWS

Section 119 of the Income-tax Act, 1961 – Income-tax Authorities – Instructions to Subordinate Authorities – Facilitating Taxpayers’ Electronic Interface with the Department 

Section 115JB of the Income-tax Act, 1961 – Minimum Alternate Tax (MAT) – Applicability of MAT on Foreign Companies for period prior To 1-4-2015 5

CORPORATE LAWS

Special Deposit Scheme, 1975 – Payment of Interest for Calendar Year 2015

Withdrawal of all old series of Banknotes issued prior to 2005

Reporting of Compliance with Indian Ownership and Control

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances; Hope the information will assist you in your Professional endeavors. For query or help, contact: info@carajput.com or call at 9555555480

           

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CORPORATE AND PROFESSIONAL UPDATE DECEMBER 23, 2015

CORPORATE AND PROFESSIONAL UPDATE DECEMBER 23, 2015

14

 

INCOME TAX ACT

SECTION 2(22)

DEEMED DIVIDEND

Inflated Purchases : Payment of money by inflating purchases cannot be construed as loan or advance within meaning of section 2(22)(e) – [2015] 64  88 (Chennai – Trib.)

SECTION 28(i)

BUSINESS INCOME – YEAR IN WHICH CHARGEABLE

Year of accrual : Where assessee advanced individual home loans, profits could be brought to tax only when recoveries are made from individual borrowers – [2015] 64  90 (Ahmedabad – Trib.)

SECTION 32

DEPRECIATION – ALLOWANCE/RATE OF

Leased assets : Where an assessee is a legal owner of assets covered by sale and lease back transactions and has used it in course of his business, he is eligible to depreciation; use in leasing business is also a use of the asset – [2015] 64  90 (Ahmedabad – Trib.)

SECTION 36(1)(vii)

BAD DEBTS

For the purpose of business : Where assessee-company advanced money to another company in ordinary course of its business activity of finance and interest on it was assessed as its business income and on issue of debenture by said company amount due to said company could be written off under section 36(1)(vii) - [2015] 64 90 (Ahmedabad – Trib.)

SECTION 43B

BUSINESS DISALLOWANCE – CERTAIN DEDUCTION TO BE ALLOWED ONLY ON ACTUAL PAYMENT

Payment, connotation of : When pursuant to settlement creditor agreed to convert a portion of interest into shares, it must be treated as extinguishment of liability for purpose of section 43B - [2015] 64  65 (Delhi)

SECTION 47

CAPITAL GAINS – TRANSACTIONS NOT REGARDED AS TRANSFER

Reassessment : Where assessee had shown gift of shares to a company, merely because assessee had been called upon by Assessing Officer for verification of value of shares in terms of section 47(iii), it would not enable revenue to resort to section 147 – [2015] 64  92 (Bombay)

SECTION 69

UNEXPLAINED INVESTMENTS

Borrowed funds : Where Commissioner (Appeals) held that investment in properties were made out of borrowed funds, but details of borrowed funds and its nexus for making investments were not examined, addition under section 69 could not be made – [2015] 64  88 (Chennai – Trib.)

SECTION 92C

TRANSFER PRICING – COMPUTATION OF ARM’S LENGTH PRICE

Where the Revenue has been unable to demonstrate some tangible material that there is an international transaction involving AMP expenses between Indian subsidiary and foreign parent, the Revenue cannot proceed to determine ALP of AMP expenses by inferring the existence of an international transaction based on the bright line test – [2015] 64  324 (Delhi)

Comparables and adjustments/Comparables – Illustrations : Assessee, which was rendering engineering support services including related design and drawing as per specification of its foreign AE, could not be compared with a company which was engaged in functions of Third Party Inspections (TPI), certification of equipment supplied by vendors and installation of work of contractors of ONGC, other government departments and private sector undertakings – [2015] 64  160 (Delhi – Trib.)

SECTION 201

DEDUCTION OF TAX AT SOURCE – CONSEQUENCE OF FAILURE TO DEDUCT OR PAY

Before 1.4.2010, there was no limitation period under Section 201 of the Act for initiating action on TDS default. It was only by the Finance Act, 2009, the sub-section (3) to section 201 was inserted to provide for a period of limitation of – [2015] 64  325 (Karnataka)

SECTION 254

APPELLATE TRIBUNAL – POWERS OF

Power of rectification : Where on merits Tribunal had recorded finding that order passed by Assessing Officer was one within provisions of section 237, revenue could not challenge said finding in guise of rectification of order – [2015] 64  63 (Madras)

COMPANIES ACT

SECTION 397

OPPRESSION AND MISMANAGEMENT

Disputes raised in a properly filed petition under sections 397, 398, 402 and 403 are not referable to arbitration in accordance with agreement between parties – [2015] 64  176 (CLB – New Delhi)

SARFAESI ACT

SECTION 2(zd)

SECURED CREDITOR

Whether the respondent-debenture trustee of three debenture holders viz., (LIC, Canara Band and Oriental Bank of Commerce), which was neither a bank nor a financial institution and was not even registered as Securitisation company u/s 3 of SARFAESI could be treated as a secured creditor within the meaning of section 2(zd) of the SARFAESI Act? If yes, whether it can invoke the provision of SARFAESI for enforcement of security interest? -[2015] 64  326 (Andhra Pradesh)

CENTRAL EXCISE ACT

SECTION 3A

CHARGE/LEVY – EXCISE DUTY BASED ON PRODUCTION CAPACITY

In context of capacity based excise duty, there is difference between ‘temporary non-production for 15 days or more’ and ‘closure of factory'; in case of ‘closure of factory’ for even 6 days, assessee cannot be made liable to pay duty and if duty has already been paid, same is liable to be refunded back to assessee – [2015] 64 102 (Ahmedabad – CESTAT)

SECTION 11AA

INTEREST – ON DELAYED PAYMENT OF DUTY/TAX

Where assessee asks department to clarify applicability of exemption and in absence of clarification, proceeds with payment of duty along with benefit of Cenvat credit, then, assessee cannot be said to have ‘wrongly taken’ credit; hence, even if said goods are later clarified to be exempted and assessee is made to reverse credit, assessee is not liable to pay interest on reversed Cenvat credit – [2015] 64  148 (Andhra Pradesh)

CUSTOMS ACT

SECTION 14

VALUATION OF IMPORTED GOODS – TRANSACTION VALUE – GENERAL

In case of undervaluation of goods imported at Chennai port, imports of same goods made by assessee himself at Mumbai port may be regarded as ‘identical/similar goods’ and may be used to determine customs value of imports at Chennai - [2015] 64  24 (SC)

CENVAT CREDIT RULES

RULE 2(1)

CENVAT CREDIT – INPUT SERVICE – EVENT MANAGEMENT SERVICES

Event management services availed by advertising agency to procure advertising space in shows, etc. organized by such event managers, is eligible for input service credit in hands of such advertising agency – [2015] 64 153 (New Delhi – CESTAT)

STATUTES

DIRECT TAX LAWS

Section 6 of the Income-tax Act, 1961 – Residential Status – Draft guiding Principles for determination of Place Of Effective Management (Poem) Of A Company – LETTER [F.NO.142/11/2015-TPL], DATED 23-12-2015

CORPORATE LAWS

SEBI (Listing Obligations and Disclosure Requirements) (Amendment) Regulations, 2015 – Amendment in Regulation 34 – NOTIFICATION NO.SEBI/LAD-NRO/GN/2015-16/27, DATED 22-12-2015

IRDAI (Issuance of Capital by Indian Insurance Companies Transacting other than Life Insurance Business) Regulations, 2015 – NOTIFICATION F.NO.IRDAI/REG/21/111/2015, DATED 15-12-2015

Registration and submission of information to CBDT for compliance with obligations under Foreign Account Tax Compliance Act (FATCA)/Common Reporting Standards (CRS) – CIRCULAR NO.IRDA/F&A/CIR/GLD/222/12/2015, DATED 21-12-2015

Sixth Meeting of International Advisory Board of SEBI – PRESS RELEASE NO.297/2015, DATED 23-12-2015

Debts Recovery Appellate Tribunal, Allahabad (Court Master) Recruitment Rules, 2015 – NOTIFICATION NO. GSR 960(E) [F.NO.5/3/2015-DRT], DATED 11-12-2015

Debts Recovery Appellate Tribunal, Mumbai (Court Master) Recruitment Rules, 2015 – NOTIFICATION NO. GSR 961(E) [F.NO.5/3/2015-DRT], DATED 11-12-2015

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances; Hope the information will assist you in your Professional endeavors. For query or help, contact: info@carajput.com or call at 9555555480

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CORPORATE AND PROFESSIONAL UPDATE DECEMBER 22, 2015

CORPORATE AND PROFESSIONAL UPDATE DECEMBER 22, 2015

18INCOME TAX ACT

SECTION 9

INCOME – DEEMED TO ACCRUE OR ARISE IN INDIA

Interest : Where assessee-company paid interest on FCCBs issued by it to bond-holders outside India, said income squarely fell under exclusion clause of sub-section (1)(v)(b) of section 9, and, consequently, it could not fall within ambit of section 5(2) – [2015] 64  114 (Ahmedabad)

SECTION 10(10D)

INSURANCE POLICY, SUM RECEIVED UNDER

Keyman Insurance Policy : Stipulations in IRDA circulars have no role to play in deciding whether premium on insurance policies paid are covered by scope of ‘keyman insurance policy’ under section 10(10D) – [2015] 64 139 (Amritsar – Trib.)

SECTION 28(i)

BUSINESS INCOME – YEAR IN WHICH TAXABLE

Advances : Where assessee-contractor was regularly showing mobilization advance received against contracts in subsequent assessment year against bills raised in that year on completion of work and revenue had not raised any objection to such treatment, mobilisation advance received in relevant year could not be treated as revenue receipt of relevant year – [2015] 63  335 (Gujarat)

SECTION 45

CAPITAL GAINS – CHARGEABLE AS

Business income v. capital gain – Share dealing : Where assessee maintained two separate accounts in respect of its dealing in mutual funds and shares, i.e., one in respect of its trading and other in respect of its investment, and there were no allegations of shifting of scrips from trading to investment or vice versa, assessee’s claim of capital gain on sale of shares held as investment was to be allowed – [2015] 64 137 (Bombay)

SECTION 68

CASH CREDIT

Gift : Where assessee did not have any close relation with alleged donors and no cogent material had been brought on record to prove their financial capacity, gifts received by assessee in his capital account could not be treated as genuine and would be added to his income under section 68 – [2015] 64  180 (Gujarat)

SECTION 80HHC

DEDUCTION – EXPORTERS

Reassessment : Where assessee claimed deduction under section 80HHC on ‘service income’ on which Assessing Officer had applied his mind at time of assessment, subsequent judgment of Apex Court would not give Assessing Officer jurisdiction to reopen assessment – [2015] 64  181 (Punjab & Haryana)

SECTION 92C

TRANSFER PRICING – COMPUTATION OF ARM’S LENGTH PRICE

Comparables and adjustments/Comparables – Illustrations : Where assessee, engaged in manufacturing cassia gum powder, rendered marketing support services to its AE, company involved in high end niche market segment of financial contents and company which outsourced its ITES to third party vendors, could not be accepted as valid comparables while determining ALP – [2015] 64  135 (Ahmedabad – Trib.)

SECTION 147

INCOME ESCAPING ASSESSMENT – NON-DISCLOSURE OF PRIMARY FACTS

Information from external source : In absence of any details available on record, Assessing Officer could not initiate assessment proceedings merely on basis of information supplied by DGIT (Inv.) that assessee had made certain bogus purchases and, to said extent, income had escaped assessment – [2015] 64  179 (Gujarat.)

SECTION 153A

SEARCH AND SEIZURE – ASSESSMENT IN CASE OF

Scope of : In case of assessment made on assessee consequent to search in another case, Assessing Officer is bound to issue notice under section 153C and thereafter proceed to assess income under section 153A and if Assessing Officer had proceeded with reassessment under section 147/148 and passed assessment order under section 143(3), same would be illegal, arbitrary and without any jurisdiction – [2015] 64  159 (Visakhapatnam – Trib.)

SECTION 199

DEDUCTION OF TAX AT SOURCE – CREDIT FOR TAX DEDUCTED

Mobilisation advance : Where TDS was deducted from mobilisation advance paid to assessee-erection contractor, credit of same was to be allowed, even if no income was assessable to tax as contract was not fully executed in relevant year – [2015] 63  334 (Hyderabad – Trib.)

SECTION 222

COLLECTION OF TAX AT SOURCE – CERTIFICATE PROCEEDINGS

Auction : There is no requirement of giving opportunity of hearing to Judgment Debtor before valuation of property to be auctioned is made and its reserve price is fixed – [2015] 64  133 (Madhya Pradesh)

SECTION 234E

FEE – FOR DEFAULT IN FURNISHING STATEMENT

Intimation under section 200A : Fees under section 234E in respect of defaults in furnishing TDS statements could not be levied in course of intimation under section 200A – [2015] 63  333 (Amritsar – Trib.)

COMPETITION ACT

SECTION 4

PROHIBITION OF ABUSE OF DOMINANT POSITION

Where disputes between complainant-distributor and respondent -supplier were purely contractual in nature, allegations made by complainant in context of discontinuance of distributorship could not be treated as unfair trade practice as defined under section 36A of MRTP Act – [2015] 64  154 (CAT – New Delhi)

CONSTITUTION OF INDIA

ARTICLE 226

WRIT PETITION – SCOPE OF

Right to fair hearing and right to defence is a guaranteed right; hence, for said purpose, department must supply documents demanded by assessee, even if said documents are not relied upon in show-cause notice – [2015] 64 97 (Madras)

CENTRAL EXCISE ACT

SECTION 4

VALUATION UNDER CENTRAL EXCISE – TRANSACTION VALUE – RELATED PERSON

In case of related parties, value is determined based on sale price of buyers for same period during which goods were sold by assessee to related buyers; hence, in valuing sales for 2004-05, sale price of buyers during 2001-02 cannot be taken – [2015] 64  163 (SC)

SECTION 5A

EXEMPTIONS – CENTRAL EXCISE – DRUG FORMULATIONS

Exemption to ‘formulations’ manufactured out of ‘streptomycin’ does not mean that ‘formulations’ cannot contain any other ‘drug'; therefore, Strepto Penicillin Injection containing ‘streptomycin’ as well as ‘penicillin’ is exempt -[2015] 64  170 (SC)

SECTION 21

ARRESTS – PROCEDURE, DISPOSAL AND INQUIRY

If major shareholder of company is found actively involved in evasion of duty by company by unaccounted sales and purchases, his arrest and proceedings for confiscation and penalty against him, are valid – [2015] 64 103 (Bombay)

CST & VAT

SECTION 4 OF RAJASTHAN SALES TAX ACT, 1994

CLASSIFICATION OF GOODS – ASAFOETIDA (HING)

Where on packet of asafoetida (hing) being sold by assessee, it was printed ‘Ram Deo Super Compounded Asafoetida Ingredients: Edible Gum, Wheat Flour 30 per cent aprox’, said item would fall under Entry No. 82 of Act and was liable to tax at 4 per cent – [2015] 64  173 (Rajasthan)

CENVAT CREDIT RULES

RULE 3

CENVAT CREDIT – GENERAL

Central Excise duty equivalent to Cenvat Credit availed by original manufacturer on capital goods could not be demanded from purchaser on its sale when purchaser did not take benefit of Cenvat credit on it – [2015] 64 129 (Mumbai – CESTAT)

STATUTES

CORPORATE LAWS

Consultation paper on additional disclosure norms for retail/public issuance of Additional Tier 1 (AT1) instruments issued by banks – PRESS RELEASE, DATED 18-12-2015

Consultation paper on guidelines for public issue of units of Infrastructure Investment Trusts – PRESS RELEASE, DATED 18-12-2015

Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement (Compensation, Rehabilitation and Resettlement and Development Plan) Rules, 2015 – NOTIFICATION NO. GSR 985(E) [F.NO.13011/01/2015-LRD], DATED 18-12-2015

Debts Recovery Appellate Tribunal, Delhi (Court Master) Recruitment Rules, 2015 – NOTIFICATION NO. GSR 957(E) [F.NO.5/3/2015-DRT], DATED 11-12-2015

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances; Hope the information will assist you in your Professional endeavors. For query or help, contact: info@carajput.com or call at 9555555480

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CORPORATE AND PROFESSIONAL UPDATE DECEMBER 21, 2015

CORPORATE AND PROFESSIONAL UPDATE DECEMBER 21, 2015

19

DIRECT TAXES:

IT: Where Assessing Officer received information from Enforcement Directorate that in books of assessee there were huge cash deposits which were not explained, he could not reopen assessment on basis of said information alone without even examining as to whether amount in question was reflected in return filed by assessee [2015] 64 257 (Delhi) CIT v. Indo Arab Air Services

IT: Payment of money by inflating purchases cannot be construed as loan or advance within meaning of section 2(22)(e)

IT: Where Commissioner (Appeals) held that investment in properties were made out of borrowed funds, but details of borrowed funds and its nexus for making investments were not examined, addition under section 69 could not be made [2015] 64 88 (Chennai – Trib.) ACIT v. Padmasingh Isaac

IT: Additions of Bank deposits made u/s 68 – Once it is held that the impugned deposits may represent sales collection then the question of estimation of profit would arise. – the provisions of sec. 44AF shall not have application in the facts and circumstances of the case (Shri Suharsh R Joshi Vs ITO-21(2)(4), Mumbai (ITAT Mumbai)

IT: In terms of section 68, assessee is liable to disclose only source(s) from where he has himself received credit and it is not burden of assessee to show source(s) of his creditor nor is it burden of assessee to prove creditworthiness of source(s) of said sub-creditors [2015] 64 329 (Delhi) Commissioner of Income-tax v. Shiv Dhooti Pearls & Investment Ltd.

IT: Before levying penalty under section 271(1)(c), it is incumbent upon Assessing Officer to state whether penalty was being levied for concealment of income or for furnishing of inaccurate particulars of income [2015] 64 155 (Kolkata – Trib.) IN THE ITAT KOLKATA BENCH ‘B’Chandra Prakash Bubna v. ITO

MCA: Annual Filing of Forms – Just 2 days (29 Dec & 30 Dec) left without payment of Additional Fees. Thereafter, Normal Additional Fee, effective from day 1 of delay would be applicable.

SUBSIDY: No LPG subsidy for consumers with Taxable Income of more than Rs.10 Lac.

IT: Addition under Section 68 – ITAT was fully justified in coming to the conclusion that there exists no evidence to establish that there was any re-routing of the money collected by the Respondent-Companies. None of the shareholders denied having contributed to their share capital. – No addition – CIT-VIII Vs. SVP Builders (India) Ltd. And Ors (2015 (12) TMI 1185 – Delhi High Court)

CBDT issues Draft Guidelines for Determination of Place of Effective Management (POEM) of a Company. Suggestions invited by 02 JAN 2016. – F.No.142/11/2015-TPL, dt.23 DEC 2015.

IT: Where assessee claiming himself to be a Sewadar of Historic Dera, deposited donations received in name of Dera in his own bank account and, moreover, he failed to prove that any charitable activity in terms of section 2(15) was ever carried out by him, authorities below were justified in making addition to his income under section 68 in respect of donations in question [2015] 64 311 (Punjab & Haryana) Makhan Singh v. Income-tax officer

Transfer Pricing: An adjustment with respect to transfer pricing has to be confined to transactions with Associated Enterprises and cannot be made with respect to transactions with unrelated third parties. CIT v. Thyssen Krupp (Bombay High Court)

Commission earned by a non-resident agent who carried on business of selling Indian goods outside India cannot be said have deemed to be income which has accrued and/or arisen in India. Circular No. 23 of 1969 & Circular No.786 of 2000 were withdrawn on 22.10.2009. The withdrawal of a Circular cannot have retrospective operation. CIT v. Gujarat Reclaim & Rubber Products (Bombay High Court)

INDIRECT TAXES:

Cenvat Credit : Event management services availed by advertising agency to procure advertising space in shows, etc. organized by such event managers, is eligible for input service credit in hands of such advertising agency [2015] 64 153 (New Delhi – CESTAT) Shakun Advertising (P.) Ltd. v. Commissioner of Central Excise & Service Tax

Service Tax : For computing reduced penalty of 25 per cent in section 78, ‘service tax assessed or determined under section 73(2)’ is taken, which shall include both : (a) sums paid prior to issuance of notice and appropriated in adjudication order; as well as (b) further sums confirmed as payable in adjudication order, [2015] 64 243 (Allahabad – CESTAT)

Amit Pandey Physics Classes v. Commissioner of Central Excise & Service Tax

Service Tax : Inclusion of ‘association of persons or body of individuals, whether incorporated or not’ in meaning of word ‘person’ is constitutional.[2015] 64 204 (Punjab & Haryana) Jaswant Singh Mann v. Union of India

Excise & Customs : Domestic Milk cans are classifiable as ‘kitchen/household articles’ under Heading 73.23 and not as ‘cans’ under Heading 73.10 [2015] 64 37 (SC) Commissioner of Central Excise v. Krishna Industries

ST: Adjudicating order makes a mockery of quasi-judicial process can adversely impacting the ease of doing business environment in the country – Ahluwalia Contracts India Ltd. Vs. C.S.T., Delhi (CESTAT New Delhi)

VAT & ST: Classification – AO was of the view that in so far as Asafoetida (Hing) is concerned the tax of 4 only was being paid but the AO was of the view that it falls in the category of Packed Masala and once it is a Packed Masala it falls in the entry where levy of tax is 16 – When spices are not mixed it remains Asafoetida (Hing) only and no new product emerges - to be levied 4 – Commercial Taxes Officer Vs. Ramdev Food Products Pvt. Ltd. & Others (Rajasthan High Court)

ST: Denial of rebate claim – receipt of commission on transaction – service was received by the recipient abroad and it is partly performed in India and partly performed abroad – Refund Allowed – Enervision Services Pvt. Ltd. Vs CCEC&ST, Hyderabad-II (2015 (12) TMI 1166 – CESTAT Bangalore)

VAT & ST: Misuse of C-Forms / D-Forms – Even assuming for the sake of argument that if there is mis-utilisation of C-Forms or any of the Forms which are issued under the Act at best a dealer may invite penalties or punitive measures but sale turnover cannot be enhanced – State of Andhra Pradesh Vs. Bharat Dynamics Ltd. (2015 (12) TMI 1135 – Andhra Pradesh High Court)

Excise & Customs : Where an assessee offers cash discount for immediate payment, it is clear that interest on receivables relating to credit period offered is also inbuilt into price and therefore, assessee is entitled to deduction in respect of interest on receivables inbuilt into price [2015] 64 244 (SC) Castrol India Ltd. v. Commissioner of Central Excise

Service Tax/Excise/Customs : Where Tribunal held assessee’s contentions to be correct without assigning any reasons and, without even recording revenue’s contentions, dismissed revenue’s appeals, said order was liable to be set aside and matter remanded back for consideration afresh [2015] 64 245 (Karnataka) Commissioner of Central Excise v. GTS Alloys (P.) Ltd.

DVAT - it is only the Commissioner who can pass an order under Section 36A (8) unless and until the power of the Commissioner has been delegated under Section 68 of the said Act to the VATO. – But that has admittedly not been done. – order set aside - Yongnam Engineering & Construction (Private) Limited Versus Commissioner, Delhi Value Added Tax & Others – 2015 (12) TMI 1087 – DELHI HIGH COURT

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances; Hope the information will assist you in your Professional endeavors. For query or help, contact: info@carajput.com or call at 9555555480

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CORPORATE AND PROFESSIONAL UPDATE DECEMBER 20, 2015

CORPORATE AND PROFESSIONAL UPDATE DECEMBER 20, 2015

21

  1. TPO can reject transfer pricing study report based on multiple year data and use only current year data [ITAT Bangalore DCIT vs. M/s. Parametric Technology (India) Pvt. Ltd].
  1. CD (compact disc) is an admissible ‘documentary evidence’-Supreme Court of India. [Shamsher Singh Verma vs. State of Haryana]
  1. CLB has issued a circular stating that the certified copies of the “Interim Orders” passed by the Principal Bench and New Delhi Bench on its official web site w.e.f  01.2016.
  1. SEBI Meeting on Implementation of OECD Principles of Corporate Governance, spot price determination of commodities etc. PR No. 297/2015.
  1. Delhi High Court ruled that undervalued property can be registered in the capital.
  1. Applications are invited from advocates of substantial standing and repute and with good academic credentials for the empanelment of Addl. / Asstt Public Prosecutor of Income Tax Department.
  1. Finance Ministry has asked Income Tax department officials to mandatorily mention their email and official phone numbers in e-letters and notices.
  1. Section 54F do not stipulate purchase of new asset from sale proceeds of original capital asset only.[CIT vs. Shri Kapil Kumar Agarwal (P&H High Court)].
  1. Revenue Secretary has directed thatIncome Tax Notice / letter /communication to contain email and phone number of officer issuing notice.
  1. Interest paid on borrowed sums further advanced to subsidiary company for purpose of facilitating the subsidiary in meeting out its working capital requirement is allowable as business expenditure. [Hero Cycles (P) Ltd.vs. CIT, Supreme Court of India]
  1. It is not the ‘profit from export’ but ‘profit of business’ which is to be considered in formula u/s 10B(4) [Delhi High Court in Riviera Home Furnishing vs. Addl. CIT].
  1. No assessment can be made in the hands of non-existing company. [M/s PVP Ventures Ltd. vs. DCIT: ITAT Chennai]
  1. Revenue cannot adjust operating costs in allowing capacity adjustment under Transfer Pricing. [DCIT vs. Claas India Pvt. Ltd. Delhi Bench of ITAT.
  1. Wax used for producing cotton yarn should be treated as Raw Material – Supreme Court in the case of M/S. MERIDIAN INDUSTRIES LTD. vs Commissioner of Central Excise.
  1. MCA clarified that the last date for Annual Filing Forms is 30 Dec 2015 and no further extension would be accorded after this date.
  1. SEBI mulls collective issue of orders, not via a single officer in a bid to improve accountability and ensure every order is looked upon as a regulatory action.
  1. RBI has extended the deadline for exchanging pre-2005 currency notes of various denominations, including Rs 500/-and Rs 1,000/-, by another six months to June 30, 2016.
  1. From 1st Jan, 2016 LPG subsidy will not be available to Consumers with Taxable Income of 10 lakhs or more in FY 2015-16.
  1. Cheque bounce cases are to be filed at the Place of Presentation of Cheque and not the place of issue (as per Negotiable Instruments (Amendment) Bill.
  1. Auditors are now required to report any suspected corporate fraud amounting Rs 1 crore or more to the Central Government under the Companies Act, 2013.
  1. Export Policy of Onions- Removal of Minimum Export Price on onions.Notification No. 29/2015-20.
  1. SEBI meeting on Implementation of OECD Principles of Corporate Governance, Spot Price Determination of Commodities etc. PR No. 297/2015.
  1. CBDT issues draft guidelines for determination of Place of Effective Management (POEM) of a company – suggestions to be given by 02.01.2016.
  1. The assessee is an AOP but department wrongly issued PAN as Firm, there cannot be any insistence that return should be filed in the same capacity. [Gujarat High Court in Tulsi Mall AOP vs CIT 2015 (12) TMI 1077]
  1. Only functionally comparable companies can be compared for calculating ALP under Transfer Pricing: [ITAT : Acclaris Business Solutions Pvt. Ltd. vs I.T.O.]
  1. MCA has notified the Companies (Meetings of Board and its Powers) Second Amendment Rules, 2015 which shall come into force on the date of their publication in the Official Gazette.
  1. Reserve Bank of India has created an email helpline to provide regulatory advice for start-ups.
  1. Lok Sabha on Thursday passed the Arbitration and Conciliation (Amendment) Bill, 2015, aimed at making dispute resolution in the country quicker and easier.
  1. Online Application are invited from CA firms / LLPs from 01.01.2016 to 15.02.2016 for empanelment for appointment as auditors of Govt Co.s / Corporations for the year 2016-2017. saiindia.gov.in.
  1. Interest in leasehold property includible in net wealth of assessee if he exercises power of owner on it. Bombay High Court: Jaya Hind Sciaky Limited.
  1. Disallowance cannot be made of expenditure not claimed as deduction in profit and loss account. [ITAT Delhi: Sunaina Tower Pvt. Ltd. vs. ACIT.]
  1. Auditors are now required to report any suspected corporate fraud amounting Rs 1 crore or more to the central government, as stringent measures are being put in place to curb misdoings.
  1. Government of the Republic of India and the Government of the Republic of Macedonia enters DTAA for the avoidance of double taxation. Notification No. 94/2015.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances; Hope the information will assist you in your Professional endeavors. For query or help, contact: info@carajput.com or call at 9555555480

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CORPORATE AND PROFESSIONAL UPDATE DECEMBER 19, 2015

CORPORATE AND PROFESSIONAL UPDATE DECEMBER 19, 2015

26FAQ ON COMPANY LAW:

Query: One of our client company appointed us as Auditors of the company at the Annual General Meeting held on 30th September, 2015.

But brother of one of partner of Auditor firm has invested in the equity shares for face value of Rs. 1 lakh on 15th October, 2015. Clarify whether we are disqualified as Auditor of that Company or not.

Answer: According to section 141(3)(d)(i) of the Companies Act, 2013, a person who, or his relative or partner holds any security of the company or its subsidiary or of its holding or associate company a subsidiary of such holding company, which carries voting rights, such person cannot be appointed as auditor of the company.

Provided that the relative of such person may hold security or interest in the company of face value not exceeding 1 lakh rupees.

In your case you,being Auditors, did not hold any such security. But your brother held equity shares of company of face value Rs. 1 lakh, which is within the specified limit.

Further Section 141(4) provides that if an auditor becomes subject, after his appointment, to any of the disqualifications specified in sub-section 3 of section 141, he shall be deemed to have vacated his office of auditor.

Hence, your Auditor firm can continue to function as auditors of the Company even after 15th October 2015.

MCA has notified the Companies (Meetings of Board and its Powers) Second Amendment Rules, 2015 which shall come into force on the date of their publication in the Official Gazette.

 MCA has notified and appointed 14th day of December, 2015 as the date on which the provisions of Section 13 and 14 of the Companies (Amendment) Act, 2015 shall come into force.

FAQ on ESIC

Q 1. Can a factory or establishment once covered go out of coverage if the number of persons employed therein goes down to the minimum limit prescribed?

Ans. Once a factory or an Establishment is covered under the Act, it continues to be covered notwithstanding the fact that the number of persons/ coverable employees employed therein at any time falls below the required limit or there is a change in the manufacturing activity.

Q 2. Is there any provision for ‘exemption of a factory or establishment’ from ESI coverage?

Ans. Of course exemption is permissible from operation of provisions of the Act subject to the condition that the employees in a factory or establishment covered are other-wise in receipt of benefits substantially similar or superior to those provided under the ESI Act. The appropriate Government may grant exemption to such factory or establishment for a period of one year at a time prospectively in consultation with ESI Corporation. Application for renewal is to be made three months before the date of expiry of the period exemption.

Q 1. What is the procedure for Registration of an employer?

Ans. The Factory or Establishment to which the Act applies is to be registered by logging into ESIC Portal i.e. www.esic.in The employer is supposed to sign up, providing company name, principle employer’s name, State and region as well as e mail address. The employer trying to register would get a password into his mail id. The employer can log in to www.esic.in and his mail ID can be used as user ID and the password received has to be accessed from the mail box to be used to register his unit by providing information in the Portal. Automatically a 17 digit code number is generated after successful registration.

Q. What is a Code number?

Ans. It is a 17 digit unique identification number allotted to each of the factory/establishment registered under the provisions of the Act. Such a number is generated through ESIC portal on submission of the pertinent information by the employer or generated on receipt of Survey report from the Social Security Officer.

Q. What is a Sub-code number?

Ans. This is also a unique identification number allotted to a sub-unit, branch office, sales office or Registered Office of a covered factory or establishment located in the same State or different State. The employer can register any Branch or Sales Office through ESIC Portal using his credentials.

Q. What is registration of Factory/Establishment?

Ans. Registration is the process, by which every factory/ establishment, to which the Act applies, is identified for the purpose of the ESI Scheme, and their individual records are set up for them.

Q. Is it mandatory for the Employer to register under the scheme?

Ans. Yes, it is the statutory responsibility of the employer under Section 2 –A of the Act read with Regulation 10-B, to register their Factory/ Establishment under the ESI Act within 15 days from the date of its applicability to them.

Discontinuation of supply of drugs to distributor for short span of time wouldn’t amount to unfair trade practice

Competition Act: Where a drug manufacturer had unilaterally and voluntarily stopped supply of drugs to informant distributor for a short span of time due to business exigencies it could not be said that it was in contravention of provisions of section 3[2015] 64  250 (CCI)
Royal Agency v. Chemists & Druggists Association, Goa

Now Delhi dealers to reverse full input credit on inter-state transfer of Tobacco and lubricants

Govt. introduces the Insolvency and Bankruptcy Bill in Lok Sabha

CBDT unveils draft guidelines to determine ‘Place of Effective Management’ of a company

Now auditors shall report only on frauds of one Crore or more to Govt

Govt. includes 41 Housing finance Cos under ambit of ‘financial institutions’ under SARFAESI Act

Now Pre-2005 banknotes can be exchanged till Jun 30, 2016

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances; Hope the information will assist you in your Professional endeavors. For query or help, contact: info@carajput.com or call at 9555555480

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CORPORATE AND PROFESSIONAL UPDATE DECEMBER 18, 2015

CORPORATE AND PROFESSIONAL UPDATE DECEMBER 18, 2015

27

ST: Whether the activity of transportation services carrying employees of companies from specific points to the factory / establishment and back can be categorized under Tour operator service - Held NO – M/s L.N. Gupta Transport Co. Vs. C. C. E., Nagpur (CESTAT Mumbai)

VAT & ST: Merely because a chemical may not be recommended for spraying on crops it cannot be said that it cannot be used for plant protection as it could be added to seeds or to the soil – State of Haryana Vs. Om Pesticides, Karnal and Anr (Punjab And Haryana High Court)

ST: CENVAT Credit – inputs and capital goods were used in construction of jetty for rendering port service. There is no reason to deny CENVAT credit on such input and capital goods – M/s Adani Port & SEZ Ltd. & M/s Adani Petronet Port Pvt. Ltd. Vs C.S.T., Ahmedabad (2015 (12) TMI 1060 – CESTAT Ahmedabad)

VAT & ST: Taxability of Sodexo Meal Vouchers – Paper based vouchers – affiliates are bound to honour – appropriate test would be as to whether such vouchers can be traded and sold separately. The answer is in the negative. Therefore this test of ascertaining the same to be goods is not satisfied - Sodexo SVC India Pvt. Ltd. Vs. State of Maharashtra & Others (2015 (12) TMI 1041 – Supreme Court)

VAT & ST: Sale of hypothecated vehicles – sale of the repossessed cars by the Appellant Bank is incidental or ancillary or in connection with the Appellant s business - M/s. Citi Bank Vs C.S.T. (2015 (12) TMI 1040 – Delhi High Court)

ST: Advances received against bank guarantee – services to be provided – It is more in the nature of a deposit – not liable to service tax – Thermax Instrumentation Ltd. Vs. C.C.E., Pune-I (2015 (12) TMI 1222 – CESTAT Mumbai)

VAT & ST: Benefit under Section 9(1) of the DVAT for input tax credit – transactions involving two firms were sham / bogus transactions – validity of order of the Objection Hearing Authority (OHA) to remand back the cast of AO – HC refused to interfere into the matter – U.K. Overseas Vs. Commissioner of Trade & Taxes (2015 (12) TMI 1194 – Delhi High Court)

MCA: Annual Filing of Forms – Just 3 days (28 Dec to 30 Dec) left without payment of Additional Fees. Thereafter, normal Additional Fee will be applicable.

MCA: Statutory Auditor (Chartered Accountant) Cost Auditor or Secretarial Auditor has to report a fraud in the company in the prescribed manner – F. No. 1/33/2013-CL-V – Dated 14-12-2015

MCA: CLB to upload the certified copies of the “Interim Orders” passed by the Principal Bench and New Delhi Bench on its official web site w. e. f 1st January, 2016

MCA clarifies - The last date for Annual Filing Forms is 30 DEC 2015 and NO Further Extension would be accorded after this date.

Stamp Duty: Property valued below Circle Rates can be registered in the Capital – Delhi High Court.

IT: Revision u/s 263 – Addition u/s 68 – AO did not make befitting inquiry in the given circumstances and the CIT has held the asst. order to be erroneous and prejudicial to the interest of the revenue – order of revision and additions confirmed – insertion of proviso to section 68 is retrospective – Auroplas Gold Pvt. Ltd. & Ors Vs. CIT (2015 (12) TMI 1241 – ITAT Kolkata)

IT: Status of the assessee – Merely because PAN was issued by the Department erroneously there cannot be any insistence that return should be filed in the same capacity. Erroneous description in the PAN would not change the reality that no such partnership firm ever existed - Tulsi Mall (AoP) And 8 Vs. CIT, Valsad (2015 (12) TMI 1077 – Gujarat High Court)

IT: Reopening of assessment – action for sanction by JCIT was without application of mind but done in a mechanical manner – revenue appeal dismissed after condonation of delay – CIT, Jabalpur Vs. M/s. S. Goyanka Lime & Chemical Ltd. (Supreme Court Of India)

DTAA: Government of the Republic of India and the Government of the Republic of Macedonia sign DTAA for the avoidance of double taxation. Notification No. 94/2015, dt.21 DEC 2015.

CBDT states inapplicability of MAT to Flls / FPIs having no permanent establishment / place of business in India for the period prior to 01.04.2015 and decided to carry out appropriate amendment to this effect -Instruction No.18/2015, dt. 23 DEC 2015.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances; Hope the information will assist you in your Professional endeavors. For query or help, contact: info@carajput.com or call at 9555555480

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CORPORATE AND PROFESSIONAL UPDATE DECEMBER 17, 2015

CORPORATE AND PROFESSIONAL UPDATE DECEMBER 17, 2015

29

FAQ on Company Law:

Query: We have incorporated a Pvt Ltd Company on 29th October 2015. But since then no Board meeting has been held regarding the appointment of First Auditors of company as well. Kindly advice in the matter.

Answer: Section 139(6) of the Companies Act, 2013 lays down that the first auditor of company shall be appointed by the Board of Directors within 30 days of the registration of the company.

Section 139 (6) continues to provide further that if the Board of Directors fails to appoint

such auditor, it shall inform the members of the company, who shall within ninety days at an extraordinary general meeting appoint such auditor and such auditor shall hold office till the conclusion of the first annual general meeting.

Query: One of our client company appointed us as Auditors of the company at the Annual General Meeting held on 30th September, 2015.

But brother of one of partner of Auditor firm has invested in the equity shares for face value of Rs. 1 lakh on 15th October, 2015. Clarify whether we are disqualified as Auditor of that Company or not. 

Answer: According to section 141(3)(d)(i) of the Companies Act, 2013, a person who, or his relative or partner holds any security of the company or its subsidiary or of its holding or associate company a subsidiary of such holding company, which carries voting rights, such person cannot be appointed as auditor of the company.

Provided that the relative of such person may hold security or interest in the company of face value not exceeding 1 lakh rupees.

In your case you,being Auditors, did not hold any such security. But your brother held equity shares of company of face value Rs. 1 lakh, which is within the specified limit.

Further Section 141(4) provides that if an auditor becomes subject, after his appointment, to any of the disqualifications specified in sub-section 3 of section 141, he shall be deemed to have vacated his office of auditor.

Hence, your Auditor firm can continue to function as auditors of the Company even after 15th October 2015.

Query: Can the Managing director of a public company make investment in another company? 

Answer: Section 186(2) requires consent of all the directors present in the board meeting; therefore Managing Director cannot take the decision on investment alone.

Query: Can a company remove Auditors of company without obtaining Central government’s approval. Clarify.

Answer: Section 140(1) stipulates that any auditor appointed under section 139 may be removed from office before the expiry of his term by passing special resolution in general meeting, after obtaining the previous approval of the Central Government in that behalf. Provided that before taking any action under subsection (1) of Section 140, the auditor concerned shall be given a reasonable opportunity of being heard.

The first auditors appointed by Board of Directors can be removed in accordance with the provision of Section 140(1) of the companies act, 2013. Hence the removal of the first auditor appointed by the Board without seeking approval of the Central Government is invalid.

Query: A Managing Director was removed during the tenure of office and certain compensation was paid to him. It was later on found that during the tenure of his office that he was guilty of corrupt practices and the company felt that no compensation should have paid to him and therefore wants to recover the compensation so paid to him. Can the company succeed?

Answer: The Companies Act, 2013 does not provide for the refund of any compensation paid by the company to its MD, WTD or manager. It only lays down the situations under which no compensation is payable for loss   of office and one such situation is the commitment of fraud or breach of trust by the director.

Moreover, in Bell vs. Lever Brothers, (1932), Lever Brothers removed their managing director of a subsidiary by paying him compensation. It was afterwards discovered that during his tenure of office he had been guilty of so many breaches of duty and corrupt practices that he could have been removed without compensation. An action was then commenced to recover back the compensation money. It was held that Bell was not bound to refund the compensation money and to disclose any breach of his fiduciary obligation so as to give the company an opportunity to dismiss him. Thus, the Managing Director is not bound to refund the compensation. Hence, the company can not succeed.

Direct Taxes:

Govt. of India enters Agreement for Avoidance of double taxation and prevention of fiscal Evasion With Government of the Republic of Macedonia vide Notification No. 94/2015 dated 21.12.2015.

Addition under Section 68 – ITAT was fully justified in coming to the conclusion that there exists no evidence to establish that there was any re-routing of the money collected by the Respondent-Companies. None of the shareholders denied having contributed to their share capital, No addition- (Commissioner of Income Tax-VIII Versus SVP Builders (India) Limited, SVP Developers Limited, S.V. Liquor India Limited – 2015 (12) TMI 1185 –   DELHI HIGH COURT)

Exemption u/s 54F – LTCG – Even before the sale of the property he had borrowed housing loan and started construction on the site belonging to him. After the sale the amount spent towards construction of the house is more than the consideration received by the sale of agricultural land and therefore he is entitled to the benefit of Section 54F- (THE COMMISSIONER OF INCOME-TAX AND THE INCOME-TAX OFFICER WARD-3 (2) BANGALORE Versus SRI. ANANDRAJ – 2015 (12) TMI 1179 – KARNATAKA HIGH COURT)

No TDS liability of banks if FD is made on directions of Court during pendency of proceedings vide circular no. 23/2015.

Issuance of Circular No. 22/2015 dated 17.12.2015 by CBDT to ensure allowability of employer’s contribution to funds for the welfare of employees in terms of section 43B(b) retrospectively  in the Income tax Act.

Disallowance made under Section 40(a)(ia) – The Sine qua non for the application of Section 40(a)(ia) of the Act to apply is claiming of the amount sought to be disallowed as an expenditure /deduction to determine the taxable income of the assessee- (Commissioner of Income Tax-2, Mumbai Versus Health India TPA Services Pvt. Ltd. – 2015 (12) TMI 568 – BOMBAY HIGH COURT)

MAT – Income from capital gain – whether should be included for the purpose of computing Book Profit under Section 115JB? – AO has no power to recompute the book profit and has to rely upon the authentic statements of accounts of the company the accounts being scrutinized and certified by the statutory auditors though with a qualification- (Sri Hariram Hotels (P) Ltd. Versus Commissioner of Income-Tax (III) , Bangalore, Income Tax Officer, Ward 12 (2) , Bangalore – 2015 (12) TMI 1419 – KARNATAKA HIGH COURT).

People earning above 10 lakhs no more entitled to LPG Subsidy.

Transfer pricing adjustment – in the absence of a machinery provision it would be hazardous for any TPO to proceed to determine the ALP of such a transaction since BLT has been negatived by this Court as a valid method of determining the existence of an international transaction and thereafter its ALP- (The Commissioner of Income Tax-LTU, Whirlpool of India Ltd. Versus Whirlpool of India Ltd., Deputy Commissioner of Income-Tax – 2015 (12) TMI 1188 – DELHI HIGH COURT)

Compensation on termination of joint-venture agreement – the receipt of Rs. 6080.95 lakhs by the Assessee as a result of the termination of the JVA during AY 1998-99 was a capital receipt but in light of Section 55 (2) (a) of the Act as it stood at the relevant time the said amount cannot be brought to capital gains tax- (The Commissioner of Income Tax Versus HCL Infosystems Ltd. – 2015 (12) TMI 1187 – DELHI HIGH COURT)

Transfer Pricing: An adjustment with respect to transfer pricing has to be confined to transactions with Associated Enterprises and cannot be made with respect to transactions with unrelated third parties. CIT v. Thyssen Krupp (Bombay High Court)

Commission earned by a non-resident agent who carried on business of selling Indian goods outside India cannot be said have deemed to be income which has accrued and/or arisen in India. Circular No. 23 of 1969 & Circular No.786 of 2000 were withdrawn on 22.10.2009. The withdrawal of a Circular cannot have retrospective operation. CIT v. Gujarat Reclaim & Rubber Products (Bombay High Court)

Indirect Taxes:

Whether the Tribunal while remitting the matter back is right in law in giving a positive direction not to impose penalty on the 1st respondent especially when the imposition of such penalty u/s 76 and 78 of Finance Act 1994 is not only automatic but also mandatory – Order of Tribunal is not correct- (The Commissioner of Service Tax Versus M/s. Zak Trade Fairs & Exhibitions Pvt. Ltd. & Customs, Excise and Service Tax Appellate Tribunal, Chennai – 2015 (12) TMI 91 – MADRAS HIGH COURT).

Refund claim – if the service tax liability is discharged on which education cess is paid on the goods exported the benefit of refund of such education cess paid should not be denied when the export of goods is not in dispute- (Tumkar Minerals Pvt Ltd, Prime Minerals Pvt. Ltd., Fomento (Karnataka) Mining Co. Pvt. Ltd., Sociedade de Fomento Industrial Pvt. Ltd., Sesa Goa Ltd., Sesa Resources Ltd., Dinar Tarcar Resources (India) Pvt. Ltd., Minescape Minerals Pvt. Ltd. Versus CCE Goa – 2015 (12) TMI 21 – CESTAT MUMBAI)

DVAT – it is only the Commissioner who can pass an order under Section 36A(8) unless and until the power of the Commissioner has been delegated under Section 68 of the said Act to the VATO. – But that has admittedly not been done. – order set aside – Yongnam Engineering & Construction (Private) Limited Versus Commissioner, Delhi Value Added Tax & Others – 2015 (12) TMI 1087 – DELHI HIGH COURT

Instruction regarding imposition of cost of CESTAT on ground of quality of adjudication order.

Technical testing and analysis service – reverse charge – services are imported or not – Proviso to Rule 3(ii) states that when a service is partly performed in India it shall be treated as performed in India. Revenue has not justified how the service is performed outside India, Demand set aside- (M/s Crompton Greaves Ltd. Versus Commissioner of Central Excise, Aurangabad – 2015 (12) TMI 1167 – CESTAT MUMBAI)

Denial of rebate claim – receipt of commission on transaction – service was received by the recipient abroad and it is partly performed in India and partly performed abroad – refund allowed- (ENERVISION SERVICES P. LTD. Versus COMMR. OF C. EX., CUS. & S.T., HYDERABAD-II – 2015 (12) TMI 1166 – CESTAT BANGALORE) 

Denial of rebate of Service Tax – no nexus between the input services and the exported output service – There is no clear proposition or proposal for this in the show cause notice. In the absence of a clear proposal the ground of nexus to reject the rebate claim of tax paid on output service could not have been used- (TEXTRON   INDIA PVT. LTD. Versus COMMR. OF S.T., BANGALORE – 2015 (12) TMI 1165 – CESTAT BANGALORE)

100 EOU – payment of duty at the time of debonding – petitioners are permitted to pay the excise duty foregone from the legally availed Cenvat credit account. Upon the excise duty being paid through the Cenvat credit account the second respondent shall issue No Due Certificate to the petitioners for debonding out of 100 EOU Scheme- (Messrs Dishman Pharmaceuticals And Chemicals Pvt. Ltd. Versus Union of India – 2015 (12) TMI 1211 – GUJARAT HIGH COURT)

Demand of service tax – arbitrary quantum while doing best judgement assessment – the order fatally suffers from lack of analysis/discussion regarding the contentions and arguments of the appellant and makes a mockery of the quasi-judicial process in-as-much-as it is not merely non-speaking but also absurd in parts- (M/s. Carlsberg India Pvt. Ltd. Versus C.S.T., Delhi – 2015 (12) TMI 1403 – CESTAT NEW DELHI)

CENVAT Credit – since the title or ownership of goods passed on to the buyer at their site such site of the buyer will be considered as the place of removal and as per the definition of input service the freight payable for such transportation of goods will be considered as input service for the purpose of taking cenvat credit- (Commissioner of Central Excise, Delhi-III Versus M/s Asian Color Coated Ispat Ltd. – 2015 (12) TMI 1394 – CESTAT NEW DELHI)

FTP : Export Policy of Onions- Removal of Minimum Export Price (MEP) on Onions. – 29/2015-20 – Dated 24-12-2015

Key Dates:

Issue of D Vat Certificate for deduction made in November: 22/12/2015.

Issue of TDS Certificate u/s 194-IA for TDS deducted in November on purchase of property: 22/12/2015

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances; Hope the information will assist you in your Professional endeavors. For query or help, contact: info@carajput.com or call at 9555555480

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