corporate and professional updates 17th july 2018

Image result for corporate and professionalDirect Tax :

  • Delhi ITAT deletes penalty u/s 271(1)(c) on TP-adjustment in case of assessee providing IT/software development services to its AE for AY 2002-03; Notes that TP-adjustment was made on the ground that under-utilization of capacity for assessee (a captive service provider) was due to insufficient orders given by AE and therefore, AE should have compensated assessee for such under-utilization; [TS-607- ITAT-2018(DEL)-TP]
  • Kerala HC upholds ITAT order for AY 2008-09, denies deduction to assessee-employer for belated payment of employees’ contribution to PF/ESI beyond the PF Act due-date, follows co-ordinate bench ruling in Merchem Ltd.; Rejects assessee’s stand that co-ordinate bench ruling requires reconsideration since it misread SC ruling in Alom Extrusions Ltd, holds that the two rulings – Alom Extrusions Ltd. and Merchem Ltd.  apply in two different fields, ”the former with reference to Section 43B(b), being employer’s contribution and the latter dealing with employee’s contribution as covered by Section 36(1)(va)”; [TS-378-HC-2018(KER)]

FAQ on GST Audit:

  • Query:   When can a taxpayer pay tax on a provisional basis?
  • Answer: Under the GST regime, the taxpayer normally pays tax on a self-assessment basis. If a taxpayer is unable to determine the value and tax rate applicable to the goods/services they supplied, they should raise a request for provisional assessment, citing the reasons why they need to pay tax on a provisional basis. This request will be processed by a tax officer.

RBI Update:

  • The Reserve Bank releases monthly data on India’s international trade in services with a lag of around 45 days.

MCA UPDATES

MCA is conducting KYC of all Directors of all companies annually through a new form viz. DIR-3 KYC

  • Every Director who has been allotted DIN on or before 31st march, 2018 and whose DIN status is ‘Approved’.
  • Due date of filing of DIR-3KYC is on or before 31st August, 2018.
  • Mandatory Information DIR-3 – Unique Personal Mobile Number, Personal Email ID, OTP on Email ID and Mobile No.
  • Certification of DIR-3 KYC –  DSC of Director & DSC of practicing professional (CA/CS/CMA)
  • Filing of DIR-3 KYC would be mandatory for Disqualified Directors
  • If director fails to file DIR-3 KYC the MCA21 system will mark all approved DINs (allotted on or before 31st March 2018) against which DIR-3 KYC form has not been filed as ‘Deactivated’ with reason as ‘Non-filing of DIR-3 KYC’
  • There will be following Consequences of filing of DIR-3 KYC after due date, After the due date filing of DIR-3 KYC in respect of such deactivated DINs shall be allowed upon payment of a specified fee only, without prejudice to any other action that may be taken.
  • MCA notifies ‘Nil Fee’ and ‘Delayed Fee of Rs. 5,000’ for Filing e-Form DIR-3 KYC under rule 12A of the Companies (Appointment and Qualification of Directors) Rules, 2014, applicable w.e.f. 10 July 2018
  • MCA notifies format of e-form DIR-3 KYC under new Rule 12A (Directors KYC) along with procedure for restoration of deactivated DINs of Directors, applicable w.e.f. 14 July, 2018

ICAI Election 2018 ICON created on www.icai.org. And first notification to opt for polling booth change in the same city for the Members of  Delhi, Bengaluru, Chennai, Kolkatta and Mumbai posted. 8th August, 2018 is last date to exercise the option.

KEY DUE DATES

  • GSTR-3B (Jun 2018)-Jul 20th, 2018
  • GSTR-5 (Jun 2018)-Jul 20th, 2018
  • GSTR-6 (Jul’17 – Jun’18)- Jul 31st, 2018
  • GSTR-4 (Apr-Jun, 2018)-Jul 18th, 2018
  • GSTR-5A (Jun 2018)-Jul 20th, 2018
  • Quarterly return for registered persons with aggregate turnover up to Rs. 1.50 Crores- GSTR-1 (Apr-Jun, 2018)-Jul 31st, 2018.
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. The author is a Chartered Accountant and the Chief Gardener & Founder Director of Rajput Jain & Associates , a leading Tax & Investment Planning Advisory Service Provider. His blog can be found at https://carajput.com/blog/For any query you can write to info@carajput.com. 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 SEPT 17,2016

Professional Update For the Day:

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DIRECT TAX:

CBDT has extended the due date of filling of Income tax return  by tax payers whose accounts are required to be audited under the Income Tax Act from 30th September , 2016 to 17th october, 2016 vide order  F.No.225/195/2016-1TA-II dated 09/06/2016.

ITAT Delhi in the below citied case held that no penalty u/s 271(1))(c) will be levied as  The entire addition was based on the conditional surrender made by the assessee. The AO did not honour the condition of not levying penalty and went ahead and issued notice for levying penalty u/s 271(1)(c)- [AdeshTyagi, S/o Shri Karan Singh Tyagi Vs. ITO, Ward-1 (1) , Ghaziabad]

Office in Chennai doesn’t confer territorial jurisdiction to Chennai HC if assessment records available at Delhi Tecpro Systems Ltd. v. Union of India [2016] 73 taxmann.com 58 (Madras)

IT: The NOIDA has been constituted by the State Act and therefore entitled to exemption of payment of tax at source under section 194-A (1) of the Act – CIT (TDS) Vs Syndicate Bank (2016 (9) TMI 308 – Allahabad High Court).

IT: Transfer pricing adjustments – TPO directed to take into account 30 additional cost base to account free of cost material and revised the OP/TC margin of 13.65 for determining the arm s length margin as claimed by the Assessee – Pr.CIT-02 Vs Bombardier Transportation India Pvt. Ltd (2016 (9) TMI 306 – Delhi High Court)

If there is neither anything in its condition nor anything in the evidence to indicate the intention of its owners or possessors so as to connect it with an agricultural purpose the land could not be agricultural land.( Mr. Rajesh J. Thakkar Versus The Deputy Commissioner of Income Tax)

CBDT has launched the ambitious ‘e-nivaran’ facility for online redressal of taxpayers’ grievances related to refunds, ITRs and PAN among others as part of its initiative to reduce instances of harassment of the public when it comes to complaints related to the I-T Department.

INDIRECT TAX:

The doctrine of unjust enrichment is established even if the credit notes are issued after clearance of goods. –( C.C.E., Bhopal Versus M/s. Tesla Transformer Ltd.) – 2016 (9) TMI 285 – CESTAT NEW DELHI – Central Excise

ST: The Department of Revenue has specified that the religious places shall be exempted from payment of Service Tax. All religious places shall be considered to fall within the purview of clause (a) of entry 5 of Notification No. 25/2012- ST, to be exempted from payment of service tax.

DVAT: Date of filling of DVAT Return in Form-16, 17 & 48 for Q-1FY2016-17 has been extended up to 19 SEP 2016. Circular No.14, dt.09-09-2016.

DVAT has extended the due date of filling the return in form 16,17 & 48 for Q1 2016-17 upto 19-09-2016 videcircular No- 14/2016 F. No. .7(420)/VAT/Policy/2011/PF/ 172-17 dated 09-0-2016.

GST UPDATE:

GST Act of the Parliament received the assent by the president on the 8th September,2016 and has been published for general information.This Act may be called the Constitution (One Hundred and First Amendment) Act, 2016.

GST bill now a law, President Shri Pranab Mukherjee gives assent to the constitutional amendment bill. GST Council to be constituted to resolve GST rates, dual control over assessment / scrutiny & area based exemptions.

GST: Provisions relating to Formation of GST Council comes into effect from  (12 SEP 2016 – The Constitution (One Hundred and First Amendment) Act, 2016 as notified on 10.09.2016.

FAQ on Company Law:

Query:   A Private limited Company has subsidiary named ‘Y Private Limited, and both are SMC’s. Kindly confirm whether that Private Limited  Company  be required to prepare CFS?

Answer: As per section 129(3) every company is required to prepare the CFS. In AS-21, it is clearly stated that the accounting standard does not mandate an enterprise to present consolidated financial statements but, if the enterprise presents consolidated financial statements for complying with the requirements of any statute or otherwise, it should prepare and present consolidated financial statements in accordance with AS.

So in this case, that Private Limited Company will be required to prepare the CFS as per the requirement of Companies Act, 2013 and for the purpose of preparing CFS it has to follow guidelines of AS.

Query:  Can a director attend all Board meetings in a year through video conferencing mode. Will it be counted for quorum? Please advice.

Answer: Yes, as per Rule 3(2)(e) & (f) of the Companies (Meetings of Board and its Powers) Rules, 2014, any director who desire, to participate may intimate his intention of participation through electronic mode at the beginning of calendar year and such declaration shall be valid for one calendar year. And in absence of any intimation, it shall be assumed that director shall attend the meeting in person.

Further, Rule 4 of the Companies (Meetings of Board and its Powers) Rules, 2014 provides for the matters which shall not be dealt with in a meeting through video conferencing mode or other audio visual means.

RBI UPDATE

RBI asks banks to accept cash from declarants of IDS, 2016 RBI/2016-17/62 Dated September 8, 2016 DBR.No.Leg.BC. 13/09.07.005/2016-17 Dated September 8, 2016

RBI issued Income Declaration Scheme , 2016 –Acceptance of cash over the counter vide RBI/2016-17/62 dated 08/09/2016. RBI asks banks to accept cash from declarants of IDS, 2016

ICAI UPDATES:

MEF online submission date has been  extended to 20th Sept . This is the second extension. Declaration to be submitted by 30 Sept in case of manual submission of declaration. You can also sign it digitally. In case of partnership firm, DSC of all the partners required. The application is in three Parts. Now only Part A shall be filed.  B and Part  C of MEF have been made non functional thus MEF PART A for Bank Audit is to be filed by 20 sep rest to be filed after 1 October 2016.

Key Dates:

  • Issue of TDS certificate in case of payment/credit made in july for the purchase of property u/s 194IA- 14/09/2016
  • Deposit of DVAT/TDS for the month of August-15/09/2016
  • Payment of Advance Tax(Second Installment) for the A.Y. 2017-18.-15/09/2016
  • Last date of deposit of PF contribution by the employee;- 15/09/2016

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The visitors may visit the web site of Government site Like Income Tax Department, Services Tax, Excise, Etc for resolving their doubts or for clarifications. Continue reading

CORPORATE AND PROFESSIONAL UPDATE JUNE 18, 2016

Professional Update For the Day:

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DIRECT TAX:


Income Tax : The initiation of the proceedings u/s 153C in the absence of recording of the satisfaction by the AO of the person searched was held to be invalid and accordingly the assessment framed u/s 153C of the Act is quashed – Bhawna Bhalla Vs. ACIT, CC-21, New Delhi & DCIT, CC-21, New Delhi Vs. Bhawna Bhall

Income Tax: Disallowance made under sec. 14A has to be added back to book profit to compute MAT Haldia Petrochemicals Ltd. v. Joint Commissioner of Income-tax,Range- 12, 3, Kolkata [2016] 70 taxmann.com 70 (Kolkata – Trib.)

Income Tax: TDS not deductible on web hosting and marketing services procured from US based entity. [DCIT vs. M/s Matrimony.Com Pvt. Ltd. (ITAT Chennai)].

Income Tax: TDS –  15G/15H declarations for the period from 01 OCT 2015 to 31 MAR 2016 to be submitted through e-filing portal by 30 JUN 2016 – Notification No.9/2016.

Income Tax: Interest awarded under Land Acquisition Act forms part of compensation; not liable to sec. 194A TDS Movaliya Bhikhubhai Balabhai v. Income-tax Officer-TDS-1-Surat [2016] 70 taxmann.com 45 (Gujarat)

Income Tax : Mere TP addition doesn’t justify levy of penalty if assessee had applied incorrect TP method in good faith Mitsui Prime Advanced Composites India (P.) Ltd. v. Deputy Commissioner of Income-tax, Circle- 6 (1), New Delhi [2016] 70 taxmann.com  123 (Delhi – Trib.)

Income Tax: Penalty will be levied u/s 271C for assessee’s failure to withhold TDS u/s 194A on interest paid to its sister concerns. Kerala HC opined that the only way assessee could take the benefit of Sec. 273B was by establishing that there was “reasonable cause” justifying its failure to comply with Sec. 194A. Kerala High Court

Income Tax: Penalty U/s 271(1)(c) shall not be imposed if assessing officer at the time of initiation of penalty proceedings has not specified whether penalty is initiated for the inaccurate particulars of income or concealment of income.(DCIT Vs. M/s Grass Field Farms & Resorts P. Ltd.) ITAT Jaipur

Income Tax: TDS not deductible on web hosting & marketing services procured from US based entity via {DCIT vs. M/s Matrimony.Com Pvt. Ltd. (ITAT Chennai) }

Income Tax: ITAT directs TPO to recalculate additions by considering only international transactions instead of total sales Federal Mogul Automotive Products (India) Ltd. v. Deputy Commissioner of Income-tax, Circle-11 (1), New Delhi [2016] 70 taxmann.com 121 (Delhi – Trib.)

Income Tax : Works contract services used for maintenance of office equipment are eligible input services Red Hat India (P.) Ltd. v. Principal Commissioner, Service Tax, Commissionerate, Pune [2016] 70 taxmann.com 132 (Mumbai – CESTAT)

Utility for Income Declaration Scheme, 2016 released by CBDT :  Central Government vide its notification no. 33/2016 dt. 19th May, 2016 has specified The Income Declaration Scheme Rules, 2016. Utility regarding these forms are now available on Income Tax website. Income Tax: Sec. 246A doesn’t allow filing of appeal before CIT(A) against order passed by AO under Sec. 195(2) Deputy Commissioner of Income-tax (International Taxation)-4(2), Mumbai v. Abu Dhabi Ship Building PJSC [2016] 70 taxmann.com 224 (Mumbai – Trib.)

Income Tax Assessee gets enduring benefit from the rights acquired in films and serials and they do not expire on the date of first telecast as contemplated by the assessee – The rights are intangible assets within the meaning of Explanation (iii) to Section 32 and do not fall within the purview of Section 37(1). The assessee is entitled to claim depreciation on same. (Eenadu Television Private Limited. Vs. ACIT, Hyderabad) ITAT Hyderabad

Income Tax: Where assessee, an Indian company, received dividend from a Brazilian company, since assessee was a resident company of India within meaning of article 23 paragraph 3 of DTAA and, Brazilian company had already paid tax on its profits in excess of rate prescribed in paragraph 2 of article 10 of DTAA before distribution of dividend income, such dividend would be exempt from tax in India – [2016] 70 taxmann.com 22 (Kolkata – Trib.)

Income Tax: Section 147 could not be availed of for purpose of correcting a mistake in assessment order; Assessing Officer could not sit in appeal over decision of his predecessor Assessing Officer, who had examined claim and allowed claim of deduction under section 54EC by taking plea that assessee was eligible for lesser amount – [2016] 70 taxmann.com 72 (Gujarat)

Income Tax : Official Assignee need not go before the CBDT for waiver of interest payable under Income-tax assessments. The Insolvency Court itself can consider the question of waiver of interest in terms of the power conferred under section 7 of the Presidency Town Insolvency Act and in the light of the provisions of the Income-tax Act – [2016] 70 taxmann.com 182 (Madras)

Utility for Income Declaration Scheme, 2016 released by CBDT :  Central Government vide its notification no. 33/2016 dt. 19th May, 2016 has specified The Income Declaration Scheme Rules, 2016. Utility regarding these forms are now available on Income Tax website.

Income Tax: Sec. 246A doesn’t allow filing of appeal before CIT(A) against order passed by AO under Sec. 195(2) Deputy Commissioner of Income-tax (International Taxation)-4(2), Mumbai v. Abu Dhabi Ship Building PJSC [2016] 70 taxmann.com 224 (Mumbai – Trib.)

Income Tax Assessee gets enduring benefit from the rights acquired in films and serials and they do not expire on the date of first telecast as contemplated by the assessee – The rights are intangible assets within the meaning of Explanation (iii) to Section 32 and do not fall within the purview of Section 37(1). The assessee is entitled to claim depreciation on same. (Eenadu Television Private Limited. Vs. ACIT, Hyderabad) ITAT Hyderabad

Income Tax: AO of searched person has to record satisfaction even if he is also the AO of other person under sec. 153C  Narsi Creations v. Deputy Commissioner of Income-tax, Central Circle-12, New Delhi
[2016] 70 taxmann.com 156 (Delhi – Trib.)

Income Tax: Revenue couldn’t treat taxpayer as BPO if same was categorized as KPO in earlier year on basis of same agreement
SNL Financial (India) (P.) Ltd. v. Deputy Commissioner of Income-tax, Cir.8, Ahmedabad [2016] 70 taxmann.com 146 (Ahmedabad – Trib.)

Income Tax :  Co. outsourcing significant part of its operations can’t be a comparable for a Co. rendering IT enabled services American Express India (P.) Ltd. v. Deputy Commissioner of Income-tax, Circle 1(1), New Delhi [2016] 70 taxmann.com 82 (Delhi – Trib.)  Registration u/s 12AA cannot be denied on town Planning Activities continuing from earlier years [ITO vs. Moradabad Development Authority (ITAT Delhi)].

INDIRECT TAX:


Service tax & custom : CBEC has issued a circular for speedy disbursal of pending refund claims of exporters of service under rule 5 of the CENVAT Credit Rules, 2004 vide Circular No. 195/05/2016- Service Tax dated 15th June ,2016.This scheme is applicable only to service tax registrants who are exporters of services, with respect to refund claims under rule 5 of the CENVAT Credit Rules, 2004, which have been filed on or before 31-3-2015, and which have not been disposed of as on the date of the issue of the circular dated 10-11-2015

CBEC has issued a single window project for simplification of procedure in SWIFT for clearance of consignment related to drugs & Cosmetics reg. vide Circular No. 28/2016- CUS- dated 14th June, 2016

Excise  : Whether there will be Eligibility of Cenvat credit of services at their retail outlets from where sales are affected. In the given case No sales are affected at the factory gate but duty is paid at the time of clearance. It was held that since the goods are not sold at the factory gate but are sold at the retail outlets, therefore, by virtue of the express provisions of Section 4(3) (c)(iii) of the Central Excise Act, 1944 the place of removal in the case of appellant will be the retail outlet. Hence cenvat credit will be eligible.( M/s Sports And Leisure Apparel Ltd. Versus Commissioner of Customs, Central Excise And Service Tax-Noida)- 2016 (6) TMI 468- CESTAT ALLAHABAD

Vat : Delhi value added tax has launched “Good Dealer Reward Scheme” Vide order instruction No. F.3 (632)/Policy/VAT/2015/PF/363- 69 dated 10.06.2016. The objective of the scheme is to acknowledge the efforts of better performing dealers so as to further encourage them to continue their efforts for better tax compliance and also to set examples for other dealers.

Central Excise: SSI Exemption – use of Brand/Trade mark or others – as long as assignment stands the assessee using the brand name is eligible for the benefit of SSI exemption notification – Tri

Excise  : CBEC has amend the notification No. 214/86 – central excise dated 25.03.1986 vide notification No. 24/2016 dated 14.06.2016 and further it amends the notification No. 67-95- Central Excise – dated 16.03.1995 vide Notification No. 25/2016 dated 14.06.2016.In this notification they have substituted the word “ Free Trade Zone” with “Special Economic Zone”

Central Excise: Levy of excise duty on readymade garments and made articles of textiles bearing a brand name or sold under a brand name and having a retail sale price of Rs. 1000 or more – reg. Circular No. 1031/19/2016-CX Dated 14th of June, 2016 F. No. 332/5/2016-TRU Dated 14th of June, 2016

Service tax : No interest can be demanded on time-barred payment of service tax  commissioner of Central Excise, Bhopal v. Western Coal Fields Ltd.[2016] 70  taxmann.com 133 (New Delhi – CESTAT)

Service tax : CESTAT grants refund of excess service tax paid on ‘brokerage’ towards stock-broker services, pursuant to subsequent downward adjustment thereof through credit notes to clients. It Rejected the Revenue’s stand that principle of unjust enrichment applicable to present case since issuance of credit notes not sufficient to establish that tax burden had not been passed onto recipients of service. CESTAT Mumbai

Custom : Seeks to extend the levy of anti-dumping duty on imports of Pentaerythritol, originating in, or exported from the People’s Republic of China, for a period of one year

Service tax & custom : CBEC has issued a circular for speedy disbursal of pending refund claims of exporters of service under rule 5 of the CENVAT Credit Rules, 2004 vide Circular No. 195/05/2016- Service Tax dated 15th June ,2016.This scheme is applicable only to service tax registrants who are exporters of services, with respect to refund claims under rule 5 of the CENVAT Credit Rules, 2004, which have been filed on or before 31-3-2015, and which have not been disposed of as on the date of the issue of the circular dated 10-11-2015

CBEC has issued a single window project for simplification of procedure in SWIFT for clearance of consignment related to drugs & Cosmetics reg. vide Circular No. 28/2016- CUS- dated 14th June, 2016

OTHER UPDATES


Changes in form 2, 3, 4 & 11 vide Limited Liability Partnership (Second Amendment) Rules 2016

ICAI: 30 SEP 2016 is the last date for payment of Membership & Certificate of Practice (CoP) Fee for FY 2016-17.

Threshold limit of PF withdrawal for deduction of tax, raised to Rs. 50,000 from Rs. 30.000 with effect from 1st June, 2016 vide Finance Act, 2016.

Net realizable of stock to be taken as value it would fetch on actual sale in future. [ITO vs. M/s. Mahendra Traders (ITAT Kolkata)].

A month after India redrew its tax agreement with Mauritius, the government has constituted a working group to examine the “consequential issues” arising out of the changes. Sebi : The Securities and Exchange Board of India (Sebi) has issued a consultation paper on financial disclosures to be made by the newly-introduced Infrastructure Investment Trusts (InvITs). Comments have been invited by June 28. It has proposed that annual disclosure to stock exchanges be on a quarterly basis, not half-yearly as suggested earlier.

Rbi : The country has a lot of “unmet demands” for bank loans and a lot of gap is still to be filled in the banking space, Reserve Bank of India Deputy Governor Harun Rashid Khan has said. “We have a lot of unmet demands (for bank loans still a lot of gaps to be filled,” Khan said in reply to a question on the central bank’s plan to issue more licences for setting up new banks.

Sebi : The Securities and Exchange Board of India (Sebi) has issued a consultation paper on financial disclosures to be made by the newly-introduced Infrastructure Investment Trusts (InvITs). Comments have been invited by June 28. It has proposed that annual disclosure to stock exchanges be on a quarterly basis, not half-yearly as suggested earlier.

KEY DATES


Payment of ESI for the month of May- 16-06-2016

E-Payment of DVAT & CST tax for the month of May -16-06-2016

Payment of ESI for the month of May- 21-06-2016

E-Payment of DVAT & CST tax for the month of May -21-06-2016

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CORPORATE AND PROFESSIONAL UPDATE MAY 14, 2016

Professional Update For the Day:

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Direct Tax:

CBDT has granted relaxation of time for submitting Form ITR-V to be filed electronically without attesting digital signature for the Asst. Years from 2009-10 to 2014-2015 through Electronic Verification Code (EVC) till 31 AUG 2016.

Primary agricultural credit society can claim deduction u/s 80P. [ The Chirakkal service Co-Operative Bank Ltd vs. CIT (Kerala HC)].

Big B’ in Tax trouble; Apex Court nods to reopening of his tax case of 2001[2016] 69 taxmann.com 170 (SC) Commissioner of Income-tax, Mumbai v. Amitabh Bachchan

CBDT has not revised due dates for filing of TCS returns

Tax returns for A.Y.s 2009-10 to 2014-15 filled electronically under time limit of Sec.139, to be verified through ITR V Form by 31.08.16.CBDT Circular no.13/2016.

The government has gained the right to tax capital gains arising in Mauritius from sale of shares acquired on or after April 1, 2017.

Exercise of S. 263 on expenses claim withdrawn by assessee valid. [Commissioner Of Income Tax vs.Amitabh Bachchan (SC)].

IT: Depreciation in respect of electrical installations, elevators, DG sets installed in the building let-out by the assessee which is receiving rental income from the said building allowed – M/s IBC Knowledge Park Pvt. Ltd. Vs. CIT & DCIT, Bangalore (2016 (5) TMI 372 – Karnataka High Court)

Exercise of Sec. 263 on expenses claim withdrawn by assessee valid. [Commissioner of Income Tax vs.Amitabh Bachchan (SC)].

IT: Penalty U/s 271(1)(c) – penalty proceedings are distinguished and separate and assessee can raise fresh plea in the penalty proceedings which has been done in this case – Sudhir Awasthi Vs. ITO, W-5(2), Jaipur (2016 (5) TMI 367 – ITAT Jaipur)

The Income declaration scheme 2016 and the direct tax dispute resolution scheme 2016 expected to come into force on 01.06.16.CBDT press release of 12.05.16.

Sec. 40 (a) (i) is discriminatory and not applicable to Indo-US DTAA. [CIT vs. Herbalife International India Pvt. Ltd (Delhi HC)].

Section 94-A(1) is constitutional valid.[Madras High Court T. Rajkumar and Others vs. UOI and Ors. (Madras HC)].

Indirect Tax:

ST: Advertising agency service on commission basis – Model (1) Placement of advertisement in traditional media on behalf of the advertiser – Modes (2) Buying and selling of advertisement inventory in non-traditional media on its own account – In both Models there is no service tax liability – M/s AKQA Media India Pvt. Ltd. Vs. CST, Mumbai (2016 (5) TMI 456 – AAR)

VAT & ST: The contracts of construction of glass curtain wall executed by the Applicant would not constitute contracts for construction of buildings mentioned in Para A of the Notification dated 8 MAR 2000 issued for the purpose of section 6A(1) of the Works Contract Act – M/s Permasteelisa Vs. ACST & DCST(2016 (5) TMI 497 – Bombay High Court)

DTAA: After successful renegotiating tax treaty with Mauritius, the GoI is looking to rework the double taxation avoidance pact with Singapore to plug the leakage.

Service Tax wrongly paid on the manufacturing activity is allowed to be adjusted against excise duty. [Hyva India Pvt. Ltd. vs. Comm of Central Excise, Customs and Service Tax, Bangalore-I (2016) 68 taxmann.com 383 (CESTAT)].

ST: Import of internet connectivity services – The server placed outside India are meant for internet connectivity services and can’t be considered as hiring of simple physical space for placing servers – prima facie case is in favor of assessee – M/s HT Media Ltd. Vs. CST, Delhi (2016 (5) TMI 377 – CESTAT New Delhi)

VAT & ST: Detention of goods in transit – detention order passed u/s 70A of the GVAT Act suffers from the breach of principles of natural justice as well as lack of application of mind and therefore stands vitiated – Jay Ambey Traders Vs. State of Gujarat (2016 (5) TMI 435 – Gujarat High Court)

DVAT Regd dealers to display certificate of registration at principal place and certified copy at other places of business in Delhi. DVAT circular no: 4 of 2016-17.

VAT on diesel reduced to 16.75% from 18% in Delhi

Excise & Customs : Before initiating garnishee proceedings for recovery of dues of assessee from assessee’s debtor under Section 11(2), revenue must first of all adjudicate what sums are due to Government[2016] 69 taxmann.com 37 (Bombay)  Sikkim Ferroys Alloys Ltd. v. Office of the Assistant Commissioner of Central Excise

Changes in VAT rate schedules w.e.f 10.05.2016. VAT rates on sweets and namkeen, marble, footwear, e-rickshaws reduced to 5%. DVAT Notification dated 09.05.2016.

Govt. amended Mauritius Treaty to bring LTCG, STCG & Derivatives Income to tax at par with the Domestic Tax w.e.f. 01.04.2019. No tax till March 31, 2017. From 01.04.17 to 31.03.2019, LTCG is exempt, STCG to be taxed @ 7.50% & Derivatives Income to be taxed @15%.

Company Law:

MCA has notified The Companies (Registration Offices and Fees) Amendment Rules, 2016. The Ministry has amended Forms GNL-1 and GNL-4 which shall be compatible with the latest V2 platform designed by the MCA.

Other Update :

Rajya Sabha passes the insolvency and bankruptcy bill and the finance bill 2016 on wednesday, 11th May, 2016.

Get ICAI now mobile app for latest ICAI updates. Available on android, iOS, windows and blackberry 10. To download please visit: – http://www.icai.org/mobile.

FEMA (exports of goods and services) regulations, 2015. Notification no. RBI/2015-16/395A.P. (DIR series) Circular No.68 [(1)/23(R)] dated may 12, 2016.

CAs to submit PAN nos. to ICAI at http://icai.org/new_post.html?post_id=12138. For DSC latest by 14th May, 2016.

Key Dates:

Deposit of DVAT TDS for April in Form DVAT-20: 15/05/2016

TDS/TCS return for March Quarter by all Deductors/Collectors Including Govt. on the Form 24Q,26Q,27Q and 27EQ:– 15/05/2016

Advance information for 2nd fortnight of May of functions with booking cost > Rs. 1 Lakh in Banquet Halls,Hotels etc. in Delhi : 12/05/2016

E-Payment of PF for April(No grace of 5 days): 15/05/2016

15.05.16 (Sunday) is last day to file TDS/TCS returns for Q4 of F.Y. 2015-16. TDS statements to be filed in 31 days from F.Y. 16-17.

 

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CORPORATE AND PROFESSIONAL UPDATE DATED MARCH 16,2016

CORPORATE AND PROFESSIONAL UPDATE DATED MARCH 16,2016Untitled213

DIRECT TAX

  • Income Tax: Disallowance of Privilege fee paid u/s 40(a)(ii) or (iib) – sharing of revenue with the state – The privilege fee payable by the petitioner to the State Government would be taxable with effect from 1.4.2014 and not prior thereto – HC
  • Income Tax: Adoption of Profit Level Indicator (PLI) of OP/TC to determine ALP – , in the absence of identification or segregation of capital employed with regard to AE’s transaction and those with others, the RoCE method would not indicate the appropriate margin for determining the ALP. – HC
  • Income Tax: Disallowance of interest u/s 36(1)(iii) – it can be said that amount invested in the subsidiaries company was arising out of commercial expediency and was thus for the purpose of business of the assessee.
  • Income Tax: Sale of factory land at Guindy, Chennai – Capital Gain OR business profit – without bringing any material on record merely based on some remote circumstances, an inference cannot be drawn that the Assessees indulged in an adventure in the nature of business or trade.
  • Income Tax: Penalty u/s 271(1)(c ) – after taking into consideration the human conduct and preponderance of probability clearly indicate that the assessee became a willing party to nefarious black money racket for obtaining bogus gifts. Such acts cannot be taken lightly as they lead to scourge of black money in the country.

INDIRECT TAX

  • Service Tax: Cenvat Credit – input service – Outdoor catering services – a notification issued in Notification No.3/2011 dated 1.3.2011 excluding the outdoor catering services came into effect on 1.4.2011 but here the period relates to a period prior to 1.4.2011. – credit allowed – HC
  • Central Excise: Reversal of CENVAT credit – whether the appellant while clearing the imported inputs which were found to be defective and unusable and later re-exported from their premises, is required to pay an amount equal to the credit availed on such inputs as per Rule 3(5) of the Cenvat Credit Rules, 2004 – Held No
  • Central Excise: Claim of exemption on Air conditioning unit, condensing unit, chillers, walk in cold rooms – the institution is not engaged in commercial activity and the goods are required for research purposes – respondent has complied with the Notification 10/97 dated 01.03.1997 – benefit of exemption allowed
  • Central Excise: New case cannot be made out after issuance of show cause notice and after passing the adjudication order. Both the lower authority have wrongly denied the Cenvat credit on the Capital goods.
  • Customs: Clim of refund – Excess payment of CVD at the time of import – there was indeed no assessment order as such passed by the customs authorities – The order of the Assistant Commissioner (Refund) rejecting the refund claim of the Petitioner on the ground of maintainability was, for the aforementioned reasons, plainly erroneous.
  • Customs: Import of goods – Change in standards under the FSS Act – The legitimate expectation of the importer would always subject to the policy change of the State. If the law is changed as on the date of release, the importer is bound by the law on the date of release. – HC
  • Customs: Release of property – seizure of gold and Indian currency – violation of provision of Customs Act. – the petitioner has to establish his ownership over the property before the Adjudicating Authority. Whether the adjudication proceedings are initiated legally or not, is not a question at the time of invoking the power under Section 110A of the Customs Act but what is contemplated under Section 110A is that the said person making the claim should be the owner of the goods to be released – HC

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 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 JANUARY,30 2016

CORPORATE AND PROFESSIONAL UPDATE  JANUARY,30  2016

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DIRECT TAX:

  • Reopening of assessment – return was filed before the wrong authority – Such being the facts it cannot be stated that the petitioner had filed no return. The very foundation for issuing notice therefore as recorded in the reasons would be belied- (Manishkumar Pravinbhai Kiri versus Asst. Commissioner of Income tax – 2016 (1) TMI 787 – GUJARAT HIGH COURT).
  • IT:TDS u/s 194C – AO erred in law in making disallowance despite the facts that the said amount is paid for purchases and section 194C of the Act is not applicable – ITO, W-7(2), Kol Vs. M/s Winsome Breweries Ltd. (ITAT Kolkata)
  • IT:Penalty u/s 271(1)(c) – The income has been detected on due to scrutiny assessment and would be evaded if the same was not done – Penalty on concealment should be imposed – Rahul Syal Vs. ITO, W-18 (1) (ITAT Delhi)
  • Depreciation worked out with reference to the written down value computed as a result of order passed under Section 250(6) – Higher WDV – No error could be pointed out in the approach- (Commissioner of Income-tax, Jalandhar Versus M/s Max India Ltd. – 2016 (1) TMI 784 – PUNJAB AND HARYANA HIGH COURT).
  • Non-resident will not to be liable to deduct tax at source from payments made to persons resident in India,if the source of the aforesaid payments is located outside the Indian Territory.
  • Compensation for breach of contract for sale of land, is not liable to income tax either as a revenue receipt or as a capital receipt [C.I.T. vs Sterling Investment Corporation Ltd., 123 I.T.R. p.441 (Bombay.)].
  • Benefit of section 10(10AA) is available even in case of resignation from service by an employee.
  • Gifting of property will entitle assessee to claim exemption u/s 54 if left with only one [ITO v Shri Sameer jasuja (ITAT Delhi), ITA 4187/Del/2012, A.Y.2009-10].
  • Section 68 cannot be applied where Assessee discharges onus to prove receipt of share capital along with premium [Dy. Commissioner of Income Tax -Vs- M/s Ansh Intermediate Services Pvt. Ltd.(ITAT Lucknow), ITA No.243/LKW/2015, A.Y.2010-11].
  • Warehouse leasing Income of Company incorporated with such object is to be taxed as business income [DCIT vs. DRS Warehousing (North) Pvt. Ltd. (ITAT Delhi), Income Tax (Appeal) No. 4354 of 2012, AY 2009-10].
  • HUF or its Karta cannot become partner or designated partner in LLP [General Circular No. 2/2016].
  • Claim of export turnover if foreign exchange not realised in specified period u/s 80HHC tantamount to deemed concealment of income [Emblem Fashion Wear Exports Pvt. Ltd. vs. ITO (ITAT Mumbai), Income Tax (Appeal) No. 2101 of 2012, AY 2003-2004].
  • Generate Electronic Verification Code (EVC) for e-filing of Income Tax Return by giving Bank/ Demat A/c details.
  • Adjustment entries being not in nature of loan or advances are outside the purview of deemed dividend u/s 2(22)(e) [CIT (TDS) vs. Schutz Dishman Bio-Tech Pvt. Ltd. (Gujarat High Court), Tax Appeal nos. 958 & 959 of 2015].
  • Being an investment company, interest on loan used for investment in jointly controlled entity allowed as revenue expenditure [ ITO vs. M/s. First American Securities Pvt. Ltd. (ITAT Delhi), Income Tax (Appeal) No. 4768 of 2012, AY 2007-2008].

INDIRECT TAX:

  • Cenvat Credit Allocation of input services to the concerned department as earned by the Table-C department – appellant provides taxable service as well as exempted service – entire disallowance does not call for any decision in favour of Revenue- (SIFY Technologies Limited Versus Commissioner of Service Tax, LTU, Chennai – 2016 (1) TMI 768 – CESTAT CHENNAI).
  • ST: Additional Services to the purchaser of Cars (Viz. like collection of RTO registration charges, Smart Card Fees, Vehicle Registration Fees and other extra charges) are not Business Support Services – Wonder Cars Pvt. Ltd. Vs. CCE (CESTAT Mumbai)
  • ST: Valuation of Construction Service provided by a builder to a landowner who transfers his land / development rights under tri-partite construction business model should be guided by the BoardCir.No.151/2/2012-ST, dt.10.2.2012 and not the CBEC’s Education Guide on Taxation of Services, 2012 – High Level Committee.
  • Cenvat credit cannot be denied to the service recipient for non-payment of Service Tax by the Service provider [Memories Photography Studio vs. Commissioner of CEST, Vadodara].
  • No VAT on free supply of medicines [Mapra Laboratories (P) Ltd. vs. Commercial Tax Officer].
  • Classification of Import of services from M/s. Society for Worldwide Interbank Financial Telecommunication (SWIFT) which is a non-resident entity not having an office in India – reverse charge – Demand conformed invoking the extended period of limitation- (Bank of Baroda Versus Commissioner of Service Tax, Mumbai-I – 2016 (1) TMI 767 – CESTAT MUMBAI).
  • Applicability of Service Tax on the services received by apparel exporters in relation to fabrication of garments [Circular No. 190/9/2015-ST].
  • Re-credit of duty, paid through Cenvat Credit, is not allowed [Garden Silk Mills Ltd. vs. Comm. of CEST, Surat, (2016)].

COMPANY LAW:

  • Query: We have a query as – We are incorporating a company in which NRI is initial shareholder of the Company. Now, he wants to transfer the said share application cum subscription amount from his NRO Account maintained in India. So, is he required to file Form FCGPR in this respect with the RBI. Please advice?
  • Answer:In case of transfer of subscription money from the NRO Account maintained in India by NRI to the Account of Company. There is no inflow of funds from a country outside India. So, it is not FDI.

Thus, there is no requirement of filing Form FCGPR regarding the same.

  • MCA has recently introduced the Companies (Incorporation) Amendment Rules 2016 vide Notification dated 22/01/2016 which shall be effective with effect from 26/01/2016.
  • MCA has issued General Circular No. 01/2016 dated 12.01.2016 on FAQs with regard to Corporate Social Responsibility u/s135 of the Companies Act, 2013 clarifying many grey areas.
  • EPF: The Employees Provident Fund Organization (EPFO) recommended higher interest rate of 8.95% (PY 8.75%) for the Current Fiscal.

KEY DATES:

  • E-Return of D VAT for the quarter ending December: 25/01/2016.

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