CORPORATE AND PROFESSIONAL UPDATE DATED MARCH 15, 2016

CORPORATE AND PROFESSIONAL UPDATE DATED MARCH 15, 2016

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The Reserve Bank of India (RBI), it seems, has finally lent ear to millions of such prospective account holders. It has simplified the KYC documentation to make account opening less onerous.

Moving ‘The Real Estate (Regulation and Development) Bill, 2015’ for consideration and passage, Urban Development Minister M Venkaiah Naidu said it aims to protect the interests of buyers and bring more transparency in the sector.

RBI has issued Know Your Customer Direction, 2016 for all Banks or entities licensed u/s 22 of Banking Regulation Act, 1949, Etc.

Govt. approves guidelines to promote electronic payments

Central Government issues instructions for reduction of government litigation through withdrawal of appeal by the department before CESTAT by instruction no. F.No.390/Misc./163/2010-JC-

Income Tax: TDS u/s 195 – the assessee can not be said to have paid the consideration for use of or the right to use copyright but has simply purchased the copyrighted work embedded in the CD- ROM which can be said to be sale of ‘good’ by the owner. The consideration paid by the assessee thus as per the clauses of DTAA can not be said to be royalty

EPS: The Union Govt. after exempting EPF, considering a proposal to make it mandatory for Employer to route most of its saving to Employee Pension Scheme (EPS) a move for creating pensioned society.

TRANSFER PRICING – COMPUTATION OF ARM’S LENGTH PRICE: Where assessee had benchmarked its international transactions on TNMM basis and TPO had neither disputed assessee’s claim that TNMM was most appropriate method, nor comparables selected by assessee, it was not open for TPO to reject benchmarking done by assessee and make adhoc ALP additions in value of international transactions – [2016] 67 16 (Mumbai – Trib.)

6% Tax on online advertisement / Google Tax, Such provisions are applicable from 1st June, 2016.The levy clearly is targeted to tax various online advertisements companies like YouTube , Google , Facebook , Twitter etc.

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CORPORATE AND PROFESSIONAL UPDATE DATED MARCH 13, 2016

CORPORATE AND PROFESSIONAL UPDATE DATED MARCH 13, 2016

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DIRECT TAX

  • TDS u/s 194J or 194C – payments made to various TV channels – section 194J is attracted to the facts of the instant case. Merely because in earlier years this issue was not examined and the assessee’s contention got accepted without verification, cannot give license to it claim in the later years that the correctly applicable section be put under carpet
  • TDS – granting of any license to use the software amounts to ‘royalty’ and the provisions of sec.9(1)(vi) are applicable – assessee is in default u/s.201(1)/201(1A) for non-deduction of TDS
  • Principals of mutuality – Contribution by the members of a Group Housing Society – work is done by the society for and on behalf of that member – there is no question of any income – Not taxable
  • Revision u/s 263 – Directions of the Ld.CIT given to the AO to verify the unsecured creditors, unsecured loans, the AO in his fresh assessment order passed u/s 143(3) r.w.s.263 of the Act, did not draw any adverse inference. This direction of the Ld.CIT was in the nature of directing rowing enquiries. – Revision is bad in law.
  • TDS u/s 195 – Addition u/s 40(a)(ia) – no liability for deduction of tax at source arose under Section 195 in the case of mobilization and demobilization costs reimbursed to a non-resident, not being taxable in India, hence disallowance under Section 40(a)(ia) did not arise.
  • TDS u/s 195 – Addition u/s 40(a)(ia) – no liability for deduction of tax at source arose under Section 195 in the case of mobilization and demobilization costs reimbursed to a non-resident, not being taxable in India, hence disallowance under Section 40(a)(ia) did not arise.
  • Addition u/s 68 – Notice u/s 133(6) is issued by the AO could not be served on the share applicants and Inspector’s report also shows that this companies do not exists at the given address, we are of the view that no fault can be found against the assessee for this.

INDIRECT TAX

  • ST- Refund claim – As the service was rendered to self and service tax was paid thereon, burden can only passed on to self and passing on the burden to self is not tantamount to passing it to any other person. Therefore, the appellant is not hit by the doctrine of unjust enrichment
  • ST­-Refund of Cenvat credit – input services – When the premises was occupied by the appellant and day-to-day repairs and maintenance are carried out in that premises then obviously, the said services i.e. repair, maintenance, electricity are received and used by the tenant only i.e. the appellant and not by the landlord – refund allowed
  • ST-Cenvat Credit – Amount towards Exempted service wrongly shown in ST-3 return – In the absence of identification of the exempted service provided by the appellant and in the wake of the assertion of the appellant that it had not provided any exempted services during the relevant period, the demand cannot be sustained
  • ST-Whether services of cutting, drilling, punching, bending and notching of material on job work basis, in the factory of the principal, provided by the respondent falls under the category of Manpower Recruitment or Supply Agency Services
  • Central Excise-Classification of PVC Doors and Windows – The process involved before fixing the windows or doors is a simple assembly at site as the profiles beadings and other items required are as per the specific dimensions of various windows or doors. We find that applying the Rule 2 (a) of the interpretation Rules, it is clear that the unassembled windows and doors, even incomplete or unfinished are to be classified with reference to goods which are complete or finished – under heading 3925.20
  • Central Excise- Penalty under section 11AC – clearance against the dummy challan – clandestine removal – Penalty was not confirmed under any other provision nor also invoked in the show cause notice. Accordingly, confirmation of penalty cannot be sustained.

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CORPORATE AND PROFESSIONAL UPDATE DATED MARCH 11, 2016

CORPORATE AND PROFESSIONAL UPDATE DATED MARCH 11, 2016

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DIRECT TAX

  • Income Tax: Qualification for exemption u/s 10(5) – LTC paid to the employees involving foreign travel – TDS on the payment of LTC to the employees – Revenue has rightly held the assessee to be in default, as the assessee has not deducted TDS intentionally on the reimbursement of expenditure incurred on LTC/LFC.
  • Income Tax: TDS u/s 195 – the assessee can not be said to have paid the consideration for use of or the right to use copyright but has simply purchased the copyrighted work embedded in the CD- ROM which can be said to be sale of ‘good’ by the owner. The consideration paid by the assessee thus as per the clauses of DTAA can not be said to be royalty
  • Income Tax: Non service of notice u/s 143(2) – Apparently, the notice was sent on the wrong address as the assessee has categorically given his address in the relevant return of income – Presumption can only be raised against the assessee for service of notice u/s 143(2) when the notice was sent on the correct address.
  • Income Tax: Rejection of books of accounts – denial of natural justice – Assessing Officer has not provided sufficient opportunity of being heard to the assessee rather rejected the books of accounts arbitrarily and declared the bills filed by the assessee as bogus unilaterally. – Matter remanded back
  • Income Tax: Revision u/s 263 – AO has to consider the provisions applicable under Rule 8D effective from assessment year 2008-09. But the AO made disallowance by following Co-ordinate Bench decision for earlier assessment year. It is apparent from facts and circumstances the order of the Assessing Officer is erroneous and prejudicial to the interest of Revenue – Revision proceedings are correct
  • Income Tax: Penalty u/s 271(1)(c) – the money has been appropriated by ICICI Bank after collection and the assessee has claimed the deficiency in realization as Bad debts. The income of 2% was not considered in profit and loss account by assessee. – The explanations given by the assessee cannot be considered as bonafide and assessee tried to conceal the income by misrepresenting the case – penalty confirmed
  • Income Tax: Eligibility of deduction u/s 80IC on freezing charges – freezing charges earned by the assessee is an integral part of the processing of vegetables and therefore is eligible for deduction u/s 80IC of the Act
  • Income Tax: Capital gains – calculation of number of trees – The evidence filed by the assessee in terms of certificate of Tehsildar or that of a retired IAS officer is of no evidentiary value, specially in the presence of Jamabandi, which is an actual proof of land holding and cultivation thereon.

INDIRECT TAX

  • Service Tax: ST-3 return form amended to insert the columns related to Swachh Bharat Cess – Service Tax (Second Amendment) Rules, 2016 – Notification
  • Central Excise: Extended period of limitation – When the material facts are disclosed, a particular classification followed by the appellant will not make a case for suppression – the appeal in so far as it relates to extended period is allowed.
  • Central Excise: SSI Exemption – Manufacture and clearing dutiable goods with the brand name or trade name of another person – for denial of exemption the brand name or trade name has a wider connotation, registration being not mandatory
  • Central Excise: Demand of duty for clearance of waste and scrap – the transparency in the appellant’s dispatch of waste and scrap and receiving the granules back cannot be questioned only on the ground that the Notification 214/86-CE is not applicable to waste and scrap.
  • Central Excise: Liability to pay the excise duty – consignee does not sent the certificate of re-warehousing within the period of 90 days – department cannot ask the appellant to pay the duty as the department cannot recover the duty twice for the same consignment and moreover as per the sub-clause (3) of Rule 20 it is the responsibility of the buyer to pay the duty
  • Customs: Valuation -As the Supply Agreement is consistent with the Technology Transfer Agreement, and the supplier had the right to terminate the supplies in case of non-payment of royalties, the payment of royalty is a condition of sale and includible in the assessable value
  • Customs: Invokation of Rule 9(1)(c) – Royalty and Technical know-how fee paid on domestic sale – Whether includible or not in the value of goods imported – Held that: Not to be included
  • Customs: Contravention of provisions of Regulation 13(e) and 13(o) of CHA Licensing Regulation, 2004. – CHA has not even claimed that it had ever verified the existence of the importer at the given address which means the appellant has failed to fulfil the requirement of Regulation 13(o) ibid. – Action against CHA sustained
  • Customs: Entitlement – Benefit of Notification No. 12/2012-Cus, – beyond doubt that ‘bulk drugs’ are also ‘drugs’ – benefit of exemption allowed

OTHER UPDATES

  • EPS: The Union Govt. after exempting EPF, considering a proposal to make it mandatory for Employer to route most of its saving to Employee Pension Scheme (EPS) a move for creating pensioned society.

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 Continue reading

CORPORATE AND PROFESSIONAL UPDATE DATED MARCH 10, 2016

CORPORATE AND PROFESSIONAL UPDATE DATED MARCH 10, 2016

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DIRECT TAX

EXPENDITURE INCURRED IN RELATION TO INCOME NOT INCLUDIBLE IN TOTAL INCOME:Tribunal faced strong criticism for not following the judgment of jurisdictional High Court given in the case of the petitioner itself for an earlier Assessment Year on identical issue of applicability of Section 14A of the Act to partially disallow interest expenditure when interest free funds available with the Petitioner are in excess of investments made in tax free securities – [2016] 42 (Bombay)

INVESTMENT IN MUTUAL FUND : Where Assessing Officer disallowed part of interest expenses under section 14A for earning exempt income which was a plausible view, Commissioner could not exercise revisionary power under section 263 to disallow whole of interest expenses – [2016]  6 (Gujarat)

INTEREST ON BORROWED CAPITAL : Expansion of business : Where assessee paid interest on borrowed capital which was used for acquisition of windmill for extension of existing business of generation of electricity through windmill, interest could not be allowed till capital asset acquired by assessee was put to use – [2016] 277 (Chennai – Trib.)

DEEMED DIVIDEND LOANS : Where assessee, having beneficial ownership of more than 10 per cent shares in a closely held company, claimed to have received certain amount from company for purchase of land for company but failed to prove same by furnishing relevant details, such amount would come within ambit of section 2(22)(e) – [2016] 67 taxmann 15 (Visakhapatnam – Trib.)

INDIRECT TAX

WORKS CONTRACT SERVICES : Where assessee has paid service tax on full contract price of a works contract and availed credit of inputs and services and there is no revenue loss to department, department cannot seek to deny credit relying upon valuation rule 2A – [2016]

TAX REFUND : Excise duty refund received by assessee in terms of new industrial policy and concessions formulated by Central Government for State of Jammu and Kashmir vide Office Memorandum of 14-6-2002, whereby Central Government intended to eradicate social problem of unemployment in State by accelerated industries development, would be treated as capital receipt – [2016] 67 taxmann 14 (Amritsar – Trib.)

MCA UPDATES

INCORPORATION OF COMPANY : Section 35 debars raising of any objection relating to incorporation of company after issuance of certificate of incorporation by ROC – [2016]

OTHER UPDATES

Govt. approves guidelines to promote electronic payments

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 Continue reading

CORPORATE AND PROFESSIONAL UPDATE DATED MARCH 9, 2016

CORPORATE AND PROFESSIONAL UPDATE DATED MARCH 9, 2016

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DIRECT TAX

IT: There cannot be a notice for re-assessment inasmuch as the question of re-assessment arises only when there is an assessment in the first instance – M/s Standard Chartered Finance Ltd. Vs. CIT, Bangalore & Anr (2016 (3) TMI 150 – Supreme Court)
IT – VDS’ 2016: Cases where notices have been issued or search has taken place or individuals against whom Govt. has prior information from another Country won’t be eligible for scheme.
INCOME ACCRUEL OF INTREST :Where assessee was following mercantile system of accounting, once interest amount had been credited to assessee and tax had also been deducted by payer, assessee could not take plea of not offering it as income on ground that he had not actually received same – [2016]  (Mumbai – Trib.)
• CBDT notifies 15% depreciation allowance on Oil Wells. Notification 13/2016.

INDIRECT TAX

ST: Management Maintenance and Repair Services – Whether notional interest to be taken as value of service – prima facie case is against the appellant since Notional interest is to be included in the value of services – Satya Prakash Builders Pvt. Ltd. Vs. CCE&ST, Jaipur-I (2016 (3) TMI 137 – CESTAT New Delhi
• 6% Tax on online advertisement / Google Tax, Such provisions are applicable from 1st June, 2016.The levy clearly is targeted to tax various online advertisements companies like YouTube , Google , Facebook , Twitter etc.

OTHER UPDATES

Bank Branch Statutory Audit: Banks have received the lists from RBI and commenced sending emails to the prospective Auditors.

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