Key points to the new formation of a company in India in ‘SPICE+’

New company Regulations Under Form SPICe Plus for the company incorporation in India

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SPICe+ Simplification Company Formation process in India

Spice+ is a modern web-based form instead of the Spice form. MCA also introduced a new web-based form spice+ and extra authentication along with the form to make the company’s incorporation process simpler. The business will also apply for EPFO / ESI, GST numbers as well as this single window form. It is compulsory for all businesses in compliance with the Guidelines of the Ministry of Corporate Affairs on the issue of PAN, TAN, EPFO, ESIC, Qualified Tax (Maharashtra) and the opening of the bank account.

 Key Points to be recognized with respect to the company’s formation in India i.e ‘SPICE+’

  1. Both forms (Incorporation, AOA, MOA, AGILE-PRO) have to be filled out in a web-based facility and then copied, digitally signed and posted as before.
  2. “Check Form,” “Pre-Scrutiny” to be performed on a web-based database, so no modifications can be made to the downloaded files.
  3. “INC-9” (declaration by first subscriber) must always be submitted by a web-based facility only.
  4. “AGILE-PRO” is to be digitally signed only by a person who has signed the “Spice+” form and no other director will sign the same form.
  5. If you continue to apply for “Name Reservation” first, you should opt for 2 Proposed Names otherwise you might also proceed to the “Name with Incorporation” facility and then you can only propose One Name
  6. The GSTIN status applied through AGILE-PRO can be checked at the GST Portal from the MCA Forms SRN.
  7. Companies that enroll ESI and PF inside the SPICE+ package do not require compliance with the ESI and PF laws until the deadline for application is set.

Available features of “SPICe Plus Form” at MCA

Recently, the government has published the full significant features of the SPICe Plus form (SPICe+) in order to make clear the value of the form as well as the campaign for good visibility. SPICe Plus form (MCA Form SPICe+) is said to devote 10 services across 3 central government ministries and departments (Ministry of Labor & Department of Revenue in the Ministry of Finance, Ministry of Corporate Affairs). The new SPICe form is said to save precious time and procedure for the management of the individuals concerned and has been introduced with all existing companies since 23 February.

Emergence to the web-based SPICe + MCA Filing Form

SPICe+ Online form is a post-login system and current registered users will need to sign in to their account using their credentials. New users must first build a login account before using the service.

Apart from being an improved variant of the current SPICe, the form is capable of fulfilling multiple requirements such as name reservation, inclusion, DIN distribution, compulsory issue of PAN, TAN, EPFO, ESIC, qualified tax (Maharashtra) and bank account opening. You can also buy the GSTIN through the SPICe+ form.

Now the Reserve Special Name of RUN is only significant if the corporation wishes to replace its existing name with a new one.

MCA SPICe INC 32 V / S SPICe Plus

SPICe INC 32 – Single Code Helps:

  • Name reservation

  • Incorporation of a new company
  • Applying for Director Identity Number (DIN) designation

Form SPICe+ (SPICe Plus) – A Single Application Helps in:

  1. Name reservation
  2. Incorporation of a new company
  3. Applying for DIN allotment]
  4. Profession Tax (Maharashtra)
  5. Bank Account Opening
  6. TAN
  7. EPFO
  8. ESIC
  9. GSTIN

Features of SPICe+ make Simplification New Company Formation process in India

  • SPICe+ would be an integrated Web Form.
  • SPICe+ would have two parts viz.: Part A-for Name reservation for new companies and Part B offering a bouquet of services viz.
    (i) Incorporation
    (ii) DIN allotment
    (iii) Mandatory issue of PAN
    (iv) Mandatory issue of TAN
    (v) Mandatory issue of EPFO registration
    (vi) Mandatory issue of ESIC registration
    (vii) Mandatory issue of Profession Tax registration(Maharashtra)
    (viii) Mandatory Opening of Bank Account for the Company and
    (ix) Allotment of GSTIN (if so applied for).
  • Readers may choose whether to submit Part-A for reserve of a name first and then submit Part B for incorporation & other services or file Parts A and B together in one go for the incorporation of a new company and the use of a range of services as defined above.
  • A modern and user-friendly front-office interface for client integration applications (SPICe+ and related forms as applicable) is being developed.
  • Applications for incorporation (Part B) after name reservation (Part A) can be submitted as a streamlined phase in the continuation of Section A of SPICe+. Stakeholders will not be required to enter the approved name SRN as the approved name will be prominently displayed on the Dashboard and a click on it will take the user to continue the application via a hyperlink that will be available on the SRN / application number in the new dashboard.
  • Resubmission of applications for business name reservation and/or registration shall now be done by means of the form number / Name applied for on the new dashboard.
  • From 15 February 2020 onwards, the RUN service will only refer to the ‘change of name’ of an established company. 8. The new web form will allow on-screen file and validation of real-time data for the transparent incorporation of corporations.
  • The approved name and related incorporation information as set out in Part A will be immediately pre-filled in all linked forms, including AGILE-PRO, eMoA, eAoA, URC1, INC-9 (as applicable)
  • In order to ensure ease of processing, SPICe+ will be divided into various parts.
  • Information once entered can be saved and modified.
  • All Check Form and Pre-Scrutiny Validations (except DSC Validation) must take place on the web page itself.
  • After the SPICe+ has been filled in with all the necessary information, the same will have to be translated to a PDF file, with only a click of the mouse button, to show the DSCs.
  • All digitally signed documents will then be submitted along with the related forms as part of the current procedure.
  • Changes/modifications to SPICe+ (even after creating pdf and affixing DSCs) can also be rendered by modifying the same web form code that has been saved, producing and uploading modified PDFs to DSCs.
  • DSC authentication and other validations must take place at Upload Stage.
  • Enrollment for EPFO and ESIC shall be compulsory for all new companies established as of 15 February 2020 and no EPFO & ESIC registry numbers shall be issued separately by the respective agencies.
  • register for professional tax is also compulsory for all startup companies incorporated in the State of Maharashtra as of 15 February 2020.
  • All startups incorporated through SPICe+ (we.e.f. 15 February 2020) would also be required to obey for the establishment of the bank account of the company through the secure website linked to AGILE-PRO.
  • The declaration of all subscribers and first directors in INC-9 shall be self-generated in PDF format and shall only be submitted in electronic form in all cases, except where:
    • The overall number of subscribers and/or directors is more than 20 and/or more than 20.
    • Any such subscriber and/or director shall have neither DIN nor PAN.

Note: New companies formed by SPICe+ and thus acquired EPFO / ESI number would only have to file legal returns if they exceed the thresholds set by the applicable Laws.

Thus, we can state that New company Laws regulation under the SPICe Plus form easy for the company to be registered in India. 8. Concluding The EODB steps taken by the Government over the last few years have substantially accelerated the process of business incorporation. Their aim of a smooth and simple process is gradually becoming a reality. That, in the past, was a tiring process requiring months of work and labor. However, by making the best possible use of technology, a company can now be incorporated in a couple of days, making millions of dreams a truth in an hour’s time.

On Rajput Jain & Associates :

Disclaimer: 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; before making any decisions do consult your Professional / tax advisor. For misrepresentation or interpretation of act or rules Author does not take any responsibility. Neither the author nor the firm accepts any liability for the loss or damage of any kind arising out of information in this document or for any action taken in reliance there on. carajput.com is committed to helping entrepreneurs and small business owners to start, manage and grow their business with peace of mind. Our goal is to support the entrepreneur on legal and regulatory requirements and to be a partner throughout the entire business life cycle, offering support to the company at every stage to ensure that it is compliant and consistently growing. Hope the information will assist you in your Professional endeavors. For query or help, contact: info@carajput.com or call at 09811322785/4 9555 5555 480)

FORM NO. INC.22A

Introduction about FORM NO. INC.22A

Active Company Tagging Identities and Verification is a new concept which is introduced by the Ministry of Corporate Affairs on 21-02-2019 by notifying Companies (Incorporation) Amendment Rules, 2019. It also introduces new E-FORM ACTIVE (INC-22A).

It is an attempt of Ministry of Corporate Affairs in order to identify the Active Companies and to verify their Registered Office.

Rule 25A:

New rule has been inserted in Companies Incorporation Rules, 2014 under Verification of Registered Office.

Rule 25A states that-Every company Incorporated on or before the 31st December 2017 shall file the particulars of the company and its registered office in e-form ACTIVE (Active Company Tagging Identities and Verification) on or before 25.04.2019. 

Every Company* Incorporated on or before 31st December 2017 are required to file this e-form.

So, we can say that all these companies are required to file e-Form Active i.e. INC-22A

  1. Public Company (whether listed or not)
  2. Private Company

iii. Government Company

  1. One Person Company

Following Companies are not required to file this form:-

  1. Companies which have been struck off
  2. Companies which are under process of Striking off.

iii. Companies that are under Liquidation.

  1. Companies which has been dissolved or amalgamated.

As per the register maintained by the Ministry of Corporate Affairs.

Following Companies will not be allowed by the Ministry of Corporate Affairs to file this e-form Active are:-

  1. Company which has not filed its due financial statements under Section 137 i.e. Not Filled AOC-4
  2. Company which has not filled its Annual Returns under section 92 i.e. Not Filled MGT-7

iii. A company who’s any of the director/s has not filled DIR 3 KYC form or is disqualified under section 164 of the Companies Act, 2013.

Consequences of non filling of this e-form Active

Company will be marked with “Active- Noncompliant” at the portal of MINISTRY OF CORPORATE AFFAIRS and due to this the company will not be allowed to carry on some transactions such as:-

  1. Change in Authorised Capital
  2. Change in Paid up Capital

iii. Changes in Director Accept Cessation,

  1. Change in Registered Office.
  2. Amalgamation, De-merger

Consequences of Filing e-form Active after the due date .i.e. 25-04-2019

Penalty will be charged from those companies who will file this form after the due date and the amount of penalty is Rs. 10,000/- as inserted by Companies (Registration offices and Fees) Amendment Rules, 2019.

In INC22A, the company is required to submit the following information:-

  1. Name of the Company and CIN
  2. Registered Address of the Company
  3. Two Photograph of the registered office of the company. The first photo of the registered office shall be taken from outside of the premises, whereas the second photo needs to be taken from within the registered office premises showing at least one director / KMP who shall be signing the e-form INC-22A.
  4. Location of registered office on Map defining Latitude / Longitude
  5. Email ID of the company
  6. Email for OTP verification
  7. Whether the company is listed (Yes or No)
  8. Details of:
  • List of all Directors of the company with Active status of DIN. if any Director on Board of the Company who does not have the Active DIN Status, company will not be able to file Form 22A.
  • Name of all the Directors of the Company, if it is more than 15 then Details of Special resolution passed for such appointment will be required. However, in case of Government Company details of such resolution will not be required as there is no limit of directors in Government Company. Kindly Check that all the Directors have filled the DIR-3 KYC Form or They are not disqualified under section 164 of the Companies Act, 2013.
  1. Details of Statutory Auditor.
  • Name of the Auditor/Firm.
  • PAN No. of the Auditor/ Firm.
  • Membership No. or Firm’s Regn. No.
  • Period for which the Auditor has been appointed.
  1. Details of Cost Auditor
  • Name and No. of Cost Auditor Appointed
  • Membership no.
  • Period for which Appointed.
  • Financial Year to be covered by the cost auditor.
  1. Details of Company Secretary.
  • Name of the Company Secretary of the Company.
  • PAN No.
  • Membership No.
  • CEO or Managing Director (if applicable)
  • CFO (if applicable)
  • SRN Number of AOC 4 / MGT 7 For FY 17-18 SRN of AOC-4/AOC-4 XBRL SRN of MGT-7

Disclaimer: 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; before making any decisions do consult your Professional / tax advisor. For misrepresentation or interpretation of act or rules Author does not take any responsibility. Neither the author nor the firm accepts any liability for the loss or damage of any kind arising out of information in this document or for any action taken in reliance there on. carajput.com is committed to helping entrepreneurs and small business owners to start, manage and grow their business with peace of mind. Our goal is to support the entrepreneur on legal and regulatory requirements and to be a partner throughout the entire business life cycle, offering support to the company at every stage to ensure that it is compliant and consistently growing. Hope the information will assist you in your Professional endeavors. For query or help, contact: info@carajput.com or call at 09811322785/4 9555 5555 480)

PROFESIONAL UPDATES JANUARY 19, 2016

PROFESIONAL UPDATES JANUARY 19, 2016

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STARTUP INDIA: Hon’ble PM Modi launches Startup India Program on Sat, 16 JAN 2016 to boost innovation based business with many incentives and ease of doing business.

  • Income Tax exemption for First 3 years.
  • Fund of ₹ 10,000 Crore (with ₹ 2,500 crore each year) to be invested in Startups in next 4 years and a Credit Guarantee Fund for ₹ 500 crore each year for next 5 years.
  • Capital Gain exemption if Startups invest capital by selling their personal assets.
  • 80% Rebate in registering Patent.
  • Easy Exits in 90 days.
  • Self-certification compliances.
  • No kind of Inspection for first 3 years.
  • Incubation program to be started in 5 Lac Schools and setting up of 35 new Incubation Centres.
  • No Govt. intervention in Startups.
  • A scheme for Women Entrepreneur to be announced soon.
  • A group of lawyers to be setup who will help resolving Patent related problems for free.
  • 7 New Research Parks to be started with a fund of ₹ 100 crore each.
  • Organizing Startup Fest all over India and abroad regularly.
  • Mobile App based registration for Startups from April 1, 2016.
  • Atal Innovation Mission (AIM) for encouraging Innovation among Startups.

The following are the Conditions for taking benefits of Startup Scheme:

1)It must be an entity registered/incorporated as

2) Five years must not had elapsed from the date of incorporation/registration.

3)  Annual turnover (as defined in the Companies Act, 2013) in any preceding financial year must not exceed Rs. 25 crores.

4)Startup must be working towards innovation, development, deployment or commercialization of new products, processes or services driven by technology or intellectual property.

5)The Startup must aim to develop and commercialise:

  •   A new product or service or process;
  • A significantly improved existing product or service or process,  that will create or add value for customers or workflow.

6)The Startup must not merely be engaged in:

  • Developing products or services or processes which do not have potential for commercialization; or
  • Undifferentiated products or services or processes; or
  • products or services or processes with no or limited incremental value for customers or workflow

7)The Startup must not be formed by splitting up, or reconstruction, of a business already in existence.

8) The Startup has obtained certification from the Inter-Ministerial Board, setup by DIPP to validate the innovative nature of the business and

  • Be supported by a recommendation (with regard to innovative nature of business), in a format specified by DIPP, from an Incubator established in a post-graduate college in India; or
  • Be supported by an incubator which is funded (in relation to the project) from GoI as part of any specified scheme to promote innovation; or
  • Be supported by a recommendation (with regard to innovative nature of business), in a format specified by DIPP, from an Incubator recognized by GoI; or
  • Be funded by an Incubation Fund/Angel Fund/ Private Equity Fund/ Accelerator/Angel Network duly registered with SEBI* that endorses innovative nature of the business; or
  • Be funded by GoI as part of any specified scheme to promote innovation; or
  • Have a patent granted by the Indian Patent and Trademark Office in areas affiliated with the nature of business being promoted.

* DIPP may publish a ‘negative’ list of funds which are not eligible for this initiative.

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

Disclaimer: 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; before making any decisions do consult your Professional / tax advisor. For misrepresentation or interpretation of act or rules Author does not take any responsibility. Neither the author nor the firm accepts any liability for the loss or damage of any kind arising out of information in this document or for any action taken in reliance there on. carajput.com is committed to helping entrepreneurs and small business owners to start, manage and grow their business with peace of mind. Our goal is to support the entrepreneur on legal and regulatory requirements and to be a partner throughout the entire business life cycle, offering support to the company at every stage to ensure that it is compliant and consistently growing. Hope the information will assist you in your Professional endeavors. For query or help, contact: info@carajput.com or call at 09811322785/4 9555 5555 480)

CORPORATE AND PROFESSIONAL UPDATE JANUARY 13,2016

CORPORATE AND PROFESSIONAL UPDATE JANUARY 13,2016

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DIRECT TAX:

  • Income Tax 1st Amendment Rules, 2016 Notified vide notification no. 3/2016/2015.
  • Corrigendum to Notification No. 93/2015 dated 16/12/2015 has been issued vide Notification No 1/2016 – Dated 12-1-2016.
  • Service of an independent contractor – whether would be taxable as salary contrary to the contract of service – Whether it is professional or skilled work; nature of establishment and the right to reject are also required to be scanned before arriving at the conclusion of the employer-employee relations. Suresh Kumar Hooda Versus The Commissioner of Income Tax, Rohtak and another.
  • Allowability of exemption u/s 10(1) – For earning agricultural income it is not necessary that the assessee must own the land and it is enough if it is established that the agricultural organizations have been actually carried on by the assessee. Monsanto India Ltd Versus Addl Commissioner of Income Tax.
  • Protocol amending the agreement between Government of the Republic of India and the Government of the Republic of Belarus for the avoidance of double taxation and the prevention of fiscal evasion with respect to taxes on income and on property (Capital) notified vide notification no. 2/2016.
  • Transfer pricing adjustment – TPO take the amount of ALP at NIL – determination of Management Consultancy Fee – foreign exchange loss in financial transactions cannot be considered as service charge for the intra group- (M/s. DQ Entertainment (International) Ltd, Versus Asst. Commissioner of Income Tax, Circle-1 (2) , Hyderabad – 2016 (1) TMI 451 – ITAT HYDERABAD).
  • Reopening of assessment – it is evident that the AO did not corroborate or examine the information received from the investigation wing before recording his own satisfaction of escaped income and initiating the reassessment proceedings. – Notice u/s 148 quashed – Tri – Income Tax- (Vardai Overseas (P) Ltd. C/o Shri V.K. Sabharwal, Adv. Versus Income Tax Officer, Ward-8 (3) , New Delhi-2016 (1) TMI 450 – ITAT DELHI)
  • IT:Service of an independent contractor – nature of establishment and the right to reject are also required to be scanned before arriving at the conclusion of the employer-employee relations – Suresh Kumar Hooda Vs. CIT, Rohtak and anr (Punjab & Haryana High Court).
  • DTAA:Amendment made in the Agreement between Republic of India and the Government of the Republic of Belarus to make the treaty effective from 19 NOV 2015 – Notification No.2/2016, Dt.13th Jan 2016.
  • IT:  Addition u/s 68 – cash credit – the alleged surplus cash accumulated in the cash book out of the withdrawals from the bank is to be considered as source of re-deposit – Minalben Dipakbhai Mehta Vs. ITO, W-3(3) Suat (ITAT Ahmedabad)
  • ITAT affirms sanctity of CA certificate; denies to impose penalty for TDS default relying upon such certificate [2016] 65 taxmann.com 68 (Mumbai – Trib.)  ADIT (IT) v. Leighton Welspun Contractors (P.) Ltd.
  • On foreign travel of directors disallowed as company had no business in such locations [2016]  92 (Bombay) Advance Power Display Systems Ltd. v. CIT
  • Trading in derivate can’t be held as speculative if co. has only income from other sources
    [2016]  62 (Delhi – Trib.) A.K. Capital Markets Ltd. v. DCIT
  • TDS u/s 194J – Procurement of ready study data by the parent company from another foreign company and supplying it to the assessee amounts – Non deduction of tds on technical services rendered to a resident – No TDS required. Commissioner of Income Tax (Tds) Versus Heramec Ltd – 2016 (1) TMI 503 – ANDHRA PRADESH HIGH COURT
  • Addition u/s 68 cash credit – the alleged surplus cash accumulated in the cash book out of the withdrawals from the bank is to be considered as source of re-deposit. Smt. Minalben Dipakbhai Mehta Versus ITO, Ward-3 (3) Suat. – 2016 (1) TMI 489 – ITAT AHMEDABAD
  • Initiatives taken by CBDT to reduce litigation
  • Now CBDT would issue refunds up to Rs. 5,000 without adjustment of outstanding tax liability
  • CBDT notifies forms for accumulation of income by a trust
  • Disallowance on account of interest expenses u/s.40A(2)(b) – the unsecured loan was required to be paid on demand but in the case of related parties there was no such condition. We are of the considered view that the interest 18 is reasonable- (Asian Mills Pvt. Ltd. Versus Deputy Commissioner of Income Tax, Addl. Commissioner of Income Tax – 2016 (1) TMI 449 – ITAT AHMEDABAD).
  • Disallowance u/s 14A gets attracted even if a mix of interest bearing & non-bearing funds used to make investments earning exempt income [M/s Thermotech Engineering vs. ACIT, Pune (ITAT Pune), ITA No.- 533/PN/2013, A.Y 2009-10].
  • Cancellation of Registration u/s 12AA(3) should be based on activities of Trust and not of Trustees [Friends of WWB India vs Director of Income Tax-Exemption (ITAT Ahmedabad), ITA No. 2076/Ahd/2014, A.Y 2009-10].
  • IT: Addition u/s 68 – The existence of shares of 1,50,000 in the hands of assessee was established by filing concerned demat account. Therefore the conditions for making addition under section 68 were missing – ACIT-13(3), Mumbai Vs.  Late Shri Himatlal H. Dadia (ITAT MUMBAI)
  • Initiation of penalty proceedings u/s 271(1)(c) without specifying basis makes such proceedings void -ab-initio.
  • Benefit of reduced penalty allowed if duty and interest paid within 30 days of communication of SCN/order [Principal Commissioner of Service Tax vs. Tops Security Ltd (Delhi High Court); CEAC 42/2015].
  • Tax Reforms Committee submits its first report – Recommends presumptive scheme for professionals, lower TDS rates
  • IT: Easwar Committee suggested several taxpayer-friendly measures to improve ease of doing business, reduce litigation and accelerate the resolution of tax disputes, such as:
  • Simplifying provisions related to TDS and increase in threshold for payment subject to TDS
  • TDS rates for individuals be reduced to 5% from 10%
  • Deletion of Section 143 (1D) to avoid undesirable delay in issue of refund
  • Making the process of refunds faster and pay 12-18% interest if refund issued beyond 6 months.
  • Payment of Interest on refund due out of Self Assessement Tax
  • Stock trading gains of up to Rs.5 Lac to be treated as capital gains and not business income
  • Deptt. to desist from the practice of adjusting tax demand of a taxpayer whose tax return is under assessment against legitimate refunds due.
  • Deferring the contentious Income Computation and Disclosure Standards (ICDS) provision.
  • IT:  Disallowance on account of bogus purchases – Merely because notices u/s 133(6) could not be served on the suppliers assessee- buyer cannot be put to an inconvenience of disallowance when he has provided the correct address of those parties – DCIT Versus Norma India Ltd. (ITAT Delhi)

INDIRECT TAX:

  • It is here by seeked to further amend notification No 12/2012-Central Excise dated 17.03.2012 so as to increase the Basic Excise Duty rates on Petrol and Diesel(both unbranded and branded).
  • Introduction of Tariff Notification in respect of fixation of tariff value of Edible Oil, Brass, Poppy Seed, Areca Nut, Gold & Silver.
  • Activities of street light maintenance cannot be equated with maintenance of road bridge tunnel etc. – Exemption not available – In Re : K. Ram Mohan – 2016 (1) TMI 543 – AUTHORITY FOR ADVANCE RULINGS, NEW DELHI
  • Area based exemption – substantial expansion by way of installed capacity by not less than 25 – Notification No. 50/2003-CE dated 10/6/03 – it was contended that production capacity of the both the units are to be counted as one – benefit of exemption allowed- CCE, Meerut – II Versus M/s Prakash Straw Board Pvt. Ltd. – 2016 (1) TMI 521 – CESTAT NEW DELHI
  • ST: Activities of street light maintenance cannot be equated with maintenance of road bridge tunnel etc. – Exemption not available – K. Ram Mohan (Authority for Advance Rulings, New Delhi).
  • ST: Govt. is considering higher Service Tax Exemption Limit to benefit small service provides.
  • Likely to hike Service Tax exemption threshold for small service providers “service tax exemption threshold limit could be hiked from Rs 10 lakh to Rs 25 lakh.” said a government source.
  • Service-tax: ‘Mistaken payment’ of service tax in excess of actually payable amount amounts to ‘deposit’ and time-limit of section 11B would not apply to refund thereof [2016] 57 (Ahmedabad – CESTAT) Nobles Constructions Gujarat (P.) Ltd. v. Commissioner of Service Tax.
  • Mobile phone and courier services used for business purposes are eligible for credit [2016] 65 taxmann.com 88 (Ahmedabad – CESTAT) Commissioner of Central Excise & Service Tax v. Miranda Tools
  • ST: Restoration of appeal – CESTAT dismissed the appeal for non compliance of stay order – the delay of 5 days in depositing the amount is condoned – appeal restored before the tribunal – M/s MPA Marketing Pvt. Ltd. Vs. CESTAT & anr (Punjab And Haryana High Court)
  • Levy of personal penalty on co-noticees – when the proceedings against the manufacturer/assessee stand concluded on payment of disputed amount of duty plus interest plus 25 of the duty as penalty there would be no sense in continuing the proceedings for imposition of penalty under Rule 26 against other persons like traders who had purchased the goods – (Commissioner of Central Excise And Customs Aurangabad / Nashik – II Versus Ambika Waste Management Pvt Ltd, Ambadas Santosh Ngargoje, Harishkumar Harjivandas Gandhi, Shree Salasar Ispat Pvt Ltd – 2016 (1) TMI 438 – CESTAT MUMBAI).
  • Cenvat Credit – Eligible input services – Other welfare service i.e. service tax paid on the services of purchase of gift and setting up of mandap in the factory premises for celebrating Dussera festival is not eligible to be held as credit as this seems to be not connected with the business of the appellant- (Mahindra Casting Ltd. Versus Commissioner of Central Excise, Pune I – 2016 (1) TMI 437 – CESTAT MUMBAI).
  • VATForm GE-I & GE-II for the period from Apr, 2015 to Dec, 2015 to be furnished by 15 FEB 2016. Notification, dt.12 JAN 2016.
  • DVAT:– All Govt Entities having their offices functioning within NCT of Delhi are required to furnish an Quarterly Return in ‘Form GE-II’, of purchases made by them for purpose of consumption or use by them from the dealers registered under the Act and having a valid TIN.
  • Restoration of appeal – CESTAT dismissed the appeal for non compliance of stay order – the delay of 5 days in depositing the amount is condoned – appeal restored before the tribunal- M/s MPA Marketing Pvt. Limited Versus Customs, Excise and Service Tax Appellate Tribunal and another – 2016 (1) TMI 482 – PUNJAB AND HARYANA HIGH COURT
  • ST: Incentive received for achieving the targets is not excludible from the assessable value of the service which as per Sec-67 is the gross amount received for the service rendered – M/s Hari Om Telecom Vs. CCE, Chandigarh (CESTAT New Delhi)
  • Likely to hike Service Tax exemption threshold for small service providers
    It may enhance to 25 lacs.
  • Delhi VAT authority isn’t empowered to pass an order until power thereof is delegated by Commissioner[2016]  103 (Delhi) Yongnam Engineering & Construction (P.) Ltd. v. Commissioner, DVAT
  • DVAT: Due date to file Form-9 (Online Reconciliation Return) extended to 29.2.16. Cir.No.34, dt.15.01.2016.
  • Delhi VAT-Filling of reconciliation return for year 2014-15- Date extended to 29.02.2016.
  • Increase in Excise Duty on Petrol by 75 paise and on Diesel by Rs. 2 per litre [Notification No. 2/2016-Central Excise]
  • ST: Refund – service tax was mistakenly paid – amount paid by the appellant under Manpower Recruitment Agency Services is required to be refunded because no tax can be collected without the authority of law –Sharam Sewa Associates Vs. CCE, Allahabad (CESTAT Allahabad)

COMPANY LAW:

Query: A Private Limited company accepted unsecured loan from its existing two Directors. This is exempt deposit under section 73 of the Companies Act, 2013. Subsequently above two Directors resigned from the Directorship of the Company. Is the loan becomes deposits after their resignation? Is the loan becomes repayable after resignation not to attract deposit Rules?

Answer: There is no necessity to repay the loan immediately and at the time of acceptance of loan from the person who has given loan were directors of the company and the money can be retained till the date of maturity.

Query:Whether Security Deposit given to Director for taking his premises on rent will attract section 185? Please Guide.

Answer: Yes, it attract section 185 but not applicable in case of private company if- a) In share capital of private company, no other body corporate has invested any money and, b) If the borrowings of such company from banks/ Financial Institutions/ body corporate is less than twice of its paid-up capital or Rs. 50 Crore (Whichever is lower) and, c) Company has no default in repayment of such borrowings, and also not applicable in case of public company, if- loan given to a M.D or W.T.D as part of conditions of service or Approved by a Special Resolution.

Query:One company is having 1 subsidiary and 2 associates companies as on 31.03.2015. Whether consolidation of all the companies is required or only the consolidation of subsidiary companies?

Answer: As per Section 129(3) of the Companies Act 2013, where a company has one or more subsidiaries, it shall, in addition to financial statements provided under sub section (2), prepare a consolidated financial statement of the company and of all subsidiaries in the same form and manner as that of its own which shall also be laid before the annual general meeting of the company along with the laying of its financial statement under sub section (2). Further explanation to this sub section provides that “the word subsidiary shall include associate company and joint venture”.

Query: Kindly provide me the Consent letter format for conducting EGM at shorter notice?

Answer: Unlike the Companies Act, 1956, the MCA does not provide any format. Even there is no format provided in the Rules. In fact proviso to sub section 1 of section 101 only mentions that the shorter notice to be given by the shareholders. Wherever in the MCA the section mentions that “as may be prescribed” the same has been provided by the Rules. As the phrase “as may be prescribed” is not mentioned in the section, the presumption is that no format would be prescribed. Thus liberty has been granted to the shareholders with regard to the fomat of the notice. The safe course would be to follow the form 22A prescribed under the Companies Act, 1956 with requisite changes.

CORPORATE SOCIAL RESPONSIBILITY

Query:What is meaning of ‘any financial year’ mentioned in Section 135 (1) of the Companies Act, 2013?

Answer: “Any Financial year” referred under Sub- Section (1) of Section 135, implies any of the three preceding financial years

Query: Compliance under section 135 of the Act i.e. Corporate Social Responsibility, is applicable from which Financial Year?

Answer: the spending of requisite amount on CSR activities came into force from April, 2014.

  • Central Government has notified 13th day of January 2016 as the date from which commencement if section (5), (6), (7) of Section 125 of Companies Act, 2013 come into force except with respect to manner of administration of the Investor Education & Protection fund.
  • MCA has issued Frequently Asked Questions (FAQs) with regard to Corporate Social Responsibility under section 135 of the Companies Act,2013 vide General Circular 1/ 2016 dated 12.01.2016.
  • MCA: Services on the www.mca.gov.in portal will not be available from 08:00 AM to 06:00 PM on Saturday, 16th JAN 2016 due to periodic maintenance activities.

OTHER UPDATES:

  • Startup India: Hon’ble PM Modi launches Startup India Program on Sat, 16 JAN 2016 to boost innovation based business with many incentives and ease of doing business.
  • ICAI: Result of the CA Final Exams held in Nov’ 2015 and CPT Exams held in Dec, 2015 declared y’day (17-01-2016) – Congrats who cleared and all the Best who appears next time.
  • We congratulate our CA students, who have passed exams. CA result analysis: CA final both group 5.75 %, Group 1- 12.61%, Group 2- 11.99 %, CPT -34.45 %.
  • Sovereign Gold Bonds, 2016 to be open for subscription from 18.01.2016 to 22.01.2016 vide its Notification F.No. 4(19)-W&M/2014 dated 14.01.2016.
  • Rules for the Investor education & protection fund authority (Appointment of Chair Person and Members, holding meeting and provision for offices and officers) Rules 2016.
  • All Govt. entities in Delhi to file return for purchases made by them for purpose of consumption
  • New Juvenile Justice Act comes into force from Jan 15, 2016.
  • Stamp duty paid to increase authorised capital is capital expenditure [2016] 65 taxmann.com 94 (Mumbai – Trib.) Inventurus Knowledge Services (P.) Ltd. v. ITO
  • CCI: Shri Devender Kumar Sikri, an officer of 1975 batch IAS took oath as Chairman of Competition Commission of India (CCI).
  • SEBI: SEBI has established its Local Office at Jammu under the administrative control of its Northern Regional Office at New Delhi.
  • ICAI has extended last date “for complying with the CPE hours requirement for the Calendar Year 2015” – from 31st December, 2015 to 31st March, 2016.
  • Applicability of MRP based valuation to institutional buyers for goods specified U/s. 4A of Excise Act.
  • Refund allowable where Service tax is paid twice by Appellant due to clerical error [Tikaula Sugar Mills Ltd. Vs. CCE, Meerut-I (2015 (12) TMI 884 – CESTAT New Delhi)].
  • Rent-a-cab services to SEZ Unit for transportation of its staff to and from their residence is exempt from Service Tax.
  • Minister of State for Finance Jayant Sinha on Thursday said that the government will present the Budget for 2016-17 on February 29, 2016.
  • Section 80IB(10) – Canopy/ Porch cannot be treated as part of Built up Area as it is not habitable [DCIT vs. Smt. Suman Jagannath Pharande (ITAT Pune)].
  • Revision valid under section 263 where AO has not made any enquiry about quantification of losses claimed [ITAT Delhi in the case of G. E. Money Financial Services Ltd. vs. DCIT].
  • Being ownership vest with lessor in leased including sale & lease back assets, depreciation u/s 32 allowed [ITAT Mumbai in the case of ICICI Ltd. vs. ACIT].

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

Disclaimer: 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; before making any decisions do consult your Professional / tax advisor. For misrepresentation or interpretation of act or rules Author does not take any responsibility. Neither the author nor the firm accepts any liability for the loss or damage of any kind arising out of information in this document or for any action taken in reliance there on. carajput.com is committed to helping entrepreneurs and small business owners to start, manage and grow their business with peace of mind. Our goal is to support the entrepreneur on legal and regulatory requirements and to be a partner throughout the entire business life cycle, offering support to the company at every stage to ensure that it is compliant and consistently growing. Hope the information will assist you in your Professional endeavors. For query or help, contact: info@carajput.com or call at 09811322785/4 9555 5555 480)

CHECKLIST FOR INCORPORATING WHOLLY OWNED SUBSIDIARY COMPANY

CHECKLIST FOR INCORPORATING WHOLLY OWNED SUBSIDIARY COMPANY

Formation of A Wholly Owned Subsidiary Company In IndiaUntitled55Company Registration in India

This Article is provides information about the stages and documents required for incorporation of a private limited company in India which is subsidiary of a foreign company in India. The procedure for registering a subsidiary company in India is very simple and will take around a maximum of 15 days to complete. The followings are the detailed requirements, procedure and system for subsidiary formation in India

A private company is defined under Section 3(1)(iii) of the CA Act  as a company which

  • Has a minimum paid up share capital of INR 100,000 or a higher paid-up capital as may be prescribed by its articles of association
  • Restricts the right to transfer shares by its articles of association.
  • Prohibits any invitation to the public to subscribe for any shares in, or debentures of, the company.
  • Prohibits any acceptance of deposits from persons other than members, directors or their relatives.
  • Can be formed with a minimum of two members and two directors.
  • Limits the number of its members (shareholders) to fifty not including (i) persons who are in the employment of the Company and (ii) persons who, having been formerly in the employment of the Company, were members of the Company while in that employment and have continued to be members after the employment ceased.

Therefore, minimum capital required for incorporation of a private company is Indian Rupees 1(one) lakh and there should be at least one two members (shareholders) and two directors)

Incorporation of a private limited company in India broadly involves the following stages:

STAGE – I

Obtaining Directors Identification Number (Din) & Digital Signatures

Directors Identification Number (DIN)

Prior to incorporation of a company, the proposed directors of the company are required to obtain Directors Identification Number (“DIN”) from the Ministry of Company Affairs by making an online DIN application in Form DIN 1. Form DIN 1 is approved by the DIN Cell of the Ministry of Corporate affairs.

The said Form DIN 1 is to be filed with the scan copies of the applicant’s photograph, identity proof, a valid residential proof and a verification/ declaration in the prescribed format to be given by the applicant (who is applying for the DIN). Upon online submission of the Form DIN 1 and online payment of the fee, a permanent DIN to the director will be allotted immediately.

The following documents are required to make a DIN application for each of the proposed director(s):

(i) Identity proof

For identity proof, a copy of passport or copy of permanent account number card (PAN card) is required to be provided. Please note that in case of a foreign national only passport is acceptable as identity proof and in case of an Indian national copy of PAN card is must.

(ii)Residence proof

For residence proof, a copy of voter’s identity card or valid driving licence or latest bank statement duly certified by the respective bank or utility bill (not older than two months) is required to be provided.

(iii) One passport size color photograph in jpeg format. In addition one more photograph is required which should be separately pasted on a plane paper.

(iv) Verification/ Declaration in the prescribed format on a 10 Rupees stamp paper, duly notrized by a notary public.

All the aforementioned documents should be attested by a notary public in the country of residence of the applicant.

Digital Signature Certificate (“DSC”)

Any one of the proposed directors is required to obtain digital signature certificate (“DSC”) in India for online filing of e-Forms with the concerned Registrar of Companies (“ROC”). For obtaining DSC an application is made under the signatures of the director who intends to obtain DSC along with the copy of his identity proof and a copy of his residence proof.  The following documents are required to make a DSC application for each of the proposed director(s):

(i) Identity proof

For identity proof, a copy of passport or copy of permanent account number card (PAN card) is required to be provided. Please note that in case of a foreign national only passport is acceptable as identity proof and in case of an Indian national copy of PAN card is must.

(ii) Residence proof

For residence proof, a copy of voter’s identity card or valid driving license or latest bank statement duly certified by the respective bank or utility bill (not older than two months) is required to be provided.

(iii) One passport size color photograph. Please note that the photograph should be pasted on the application form and cross signed by the director (applicant).

(iv) DSC application form duly signed by the director (applicant)

The identity and residence proof of the applicant as aforesaid should be attested by a notary public in the country of residence of the applicant.

STAGE – III

Application for Name Approval of the Proposed Company With The ROC

After obtaining the DIN and DSC as aforesaid, an online application for availability of the proposed name (in the prescribed Form 1A), along with six proposed names in order of preference (may be less than six), each one indicating, as far as possible, the main objects (principal activities) of the company, shall be submitted to the ROC. The name of a private company should end with the words “Private Limited”.

If the proposed company is a subsidiary of body corporate incorporated outside India, Form 1A is required to be e-filed along with the following attachment at the website of Ministry of Company Affairs, India:

(a) Board Resolutions by the parent company (separately from each subscriber to the proposed entity) indicating its intention to incorporate a subsidiary in India and authorizing a director to issue specific power of attorney.

(b) Power of Attorney (s) (separately from each subscriber to the proposed entity) authorizing someone to represent the subscribers before the concerned ROC to liaise with  all concerned authorities and officials in the matter of incorporation.

(c)    No Objection Letter from the parent company (separately from each of such   entity whose name or part thereof will be used in the name of the proposed entity) for use of the name of the parent company or part thereof in the name of the proposed company.

(d) Charter Documents of the parent company i.e. Certificate of Incorporation of the  parent company.

Please note that all of the aforementioned documents should be notarized by a Notary Public in the country where the registered office of the entity (which has issued the said document), is situated and further Apostilled/ endorsed at the Indian Consulate in the country where the registered office of the entity (which has issued the said document) is situated.

(e) A brief writ-up on the main objects proposed to be carried out by the Company.

(f) Proof of ownership of the registered office of the company. In case the property is not taken on lease by the Company himself, a no objcetion certificate would be required

STAGE IV

Drafting And Stamping of Memorandum & Articles of Association (“MOA and AOA”)

MOA and AOA are to be drafted in compliance with the provisions of the Act. Adequate stamp duty would be required to be paid thereupon based on the authorised capital of the company. The stamp duty on MOA and AOA shall be paid along with the filing fee payable at the time of filing of incorporation related documents

STAGE V

INCORPORATION DOCUMENTS TO BE FILED WITH THE ROC

After the name approval, the following forms have to be e-filed with the ROC after having been digitally signed by any of the proposed directors. The lists of documents are as follows:

(i)    Form 1 –   Declaration of compliance of all the requirements of the Act along with the memorandum of association of the company;

(ii)   Form 18 – Situation of the registered office of the Company; and

(iii) Form 32 – Particulars of Directors of the Company along with the consent of directors.

All the aforesaid incorporation documents (scanned copies of the executed version) have to be submitted with the ROC as attachments to the E form 1 alongwith:

(i) The original copies of MOA and AOA with the subscriber pages duly executed by or on behalf of the subscribers and witnessed.

(ii) Power of Attorneys from the subscribers to the MOA and AOA appointing representatives to incorporate the company and to make corrections in the MOA and AOA. The said powers of attorneys are required to be notarized and attested by Indian embassy abroad.

The ROC then scrutinizes the above-mentioned documents and if necessary, directs the authorized person to make necessary corrections therein. The ROC after being satisfied that all the documents are complete, issues the certificate of incorporation of the Company, which is the conclusive proof of registration of the company in India.

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

Disclaimer: 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; before making any decisions do consult your Professional / tax advisor. For misrepresentation or interpretation of act or rules Author does not take any responsibility. Neither the author nor the firm accepts any liability for the loss or damage of any kind arising out of information in this document or for any action taken in reliance there on. carajput.com is committed to helping entrepreneurs and small business owners to start, manage and grow their business with peace of mind. Our goal is to support the entrepreneur on legal and regulatory requirements and to be a partner throughout the entire business life cycle, offering support to the company at every stage to ensure that it is compliant and consistently growing. Hope the information will assist you in your Professional endeavors. For query or help, contact: info@carajput.com or call at 09811322785/4 9555 5555 480)