CORPORATE & OTHER LAWS UPDATE NOVEMBER 19 ,2015

Corporate and Professional Update NOVEMBER 19 ,2015

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  • Media should refrain from publishing unauthenticated stories on conciliation in Vodafone case: CBDT
  • Booking rights of fictional property not to be deemed as transferable capital assets
  • IT : Rights in a property couldn’t be deemed as transferable capital assets when such property was neither in existence nor its building plan or specifications were approved from the Municipal Corporation and neither any construction activity nor commencement of the project had started [2015]  184 (Mumbai – Trib.) S. Narendrakumar & Co. v. DCIT
  • extends time limit for establishing ‘Central KYC Records Registry’ under PMLA norms
  • Now NRs or NRIs may acquire units of ‘Real Estate Investment Trusts’
  • Now Delhi dealers required to submit details of goods sold via each e-commerce website
  • Delhi Govt. devised mechanism to prohibit misuse of auto downloading facility for DVAT forms
  • CCI slapped penalty on Jet Airways, Indigo and Spice Jet for forming cartel to fix fuel surcharge
  • MCA releases new Form MGT 7 with more clarifications
  • DIPP issues a draft list containing various activities with relevant para of FDI Policy
  • amends FDI Policy for various sectors including construction and defence sectors
  • CBDT lays Std. Operating Procedure for allocation/transfer of cases and curing of defective appeals
  • No penalty due to non-charging of ST on bank’s commission as issue of its taxability was sub-judice in various forums [2015] 348 (Mumbai – CESTAT)  Y. M. Motors (P.) Ltd. v. Commissioner of Central Excise
  • Tax Authorities can’t attach Cash Credit Account of taxpayer to recover tax dues
  • Excise & Customs : ‘Tankers’ cannot be regarded as ‘bulk packs’; therefore, receiving chemicals in tankers and transferring same to drums cannot be regarded as ‘repacking from bulk pack to retail packs’ and hence, said activity cannot amount to manufacture [2015]  5 (Mumbai – CESTAT) JPB Chemical Industries (P.) Ltd. v. Commissioner of Central Excise
  • No service-tax on course fee retained by franchisor just because it was referred in franchisee agreement
  • Reverse Charge mechanism shall be applicable for purposes of Swachh Bharat Cess
  • No Swachh Bharat Cess if payment for services is received prior to Nov 15, 2015; Govt. clarifies
  • Excise & Customs : In case three different MRPs are affixed on ‘same package’ even though for ‘different areas’, goods will be assessed to duty as per Explanation 2(a) to section 4A taking highest MRP as the basis. [2015]  84 (SC)Sarup Tanneries Ltd. v. Commissioner of Central Excise
  • Service Tax : Training/Course fee shared in ratio of 25:75 between assessee and centres providing training, is akin to revenue sharing model for training services and therefore, 25 per cent retained by assessee cannot be taxed under franchise services [2015] 312 (Mumbai – CESTAT) Centre for Development of Advance Computing v. Commissioner of Central Excise
  • Cenvat Credit : Service tax paid on insurance services received for insurance of (a) existing as well as retired employees, and (b) stock stored in foreign warehouses, is eligible for input service credit [2015]  370 (Mumbai – CESTAT)  Reliance Industries Ltd. v. Commissioner, Central Excise & Service Tax
  • Swatch BHARAT Cess :
  • Whether SBC would be required to be mentioned separately in invoice?
  • Ans. SBC would be levied, charged, collected and paid to Government independent of service tax. This needs to be charged separately on the invoice, accounted for separately in the books of account and paid separately under separate accounting code which would be notified shortly. SBC may be charged separately after service tax as a different line item in invoice. It can be accounted and treated similarly to Education cesses.
  • Rates of ST after SBC
  • GTA.     4.35%
  • Original Works Contract(OWC)                          5.8%
  • Other than (OWC)                         10.15%
  • Restaurant Services 5.8%
  • Whether Cenvat Credit of the SBC is available?
  • Ans. SBC is not integrated in the Cenvat Credit Chain. Therefore, credit of SBC cannot be availed. Further, SBC cannot be paid by utilizing credit of any other duty or tax.
  • SBC shall be applicable on Reverse Charge Mechanism also
  • 5 key takeaways from Bankruptcy Bill
  • New Bankruptcy Bill was drafted to speed up the process of revival of financially distressed companies and limited liability entities.
  • Key takeaways from draft bill are given hereunder:
  • Insolvency process to be fast tracked: insolvency resolution process has to be completed within a period of 90 days from the insolvency commencement date.
  • Formation of Insolvency Regulator: Further time-limit of 180 days (which can be reduced to 90 days under fast track process) has been given for regulator to deal with insolvency resolution cases.
  • Insolvency professionals: The draft Bill proposes to regulate insolvency professionals and insolvency professional agencies.
  • Creation of insolvency information utilities: It suggests creation of information utilities which would collect, collate, authenticate and disseminate financial information from listed companies and financial and operational creditors of companies.
  • Procedure for insolvency resolution- The draft bill provides following procedure:
    • For companies and Limited Liability Entities: Timeline of 180 days has been fixed for insolvency resolution. extended further by 90 days. Insolvency resolution process can be initiated with the approval of 75 % of creditors.
    • For individuals and Unlimited Liability Partnerships: As a precursor to a bankruptcy process, there can be two processes that shall be followed.
    • In the fresh-start process, individuals with annual gross income of less than Rs.60,000 and aggregate asset value of less than Rs.20,000 shall be eligible to make a fresh start through a specified process.
    • In the insolvency resolution process creditors and debtors will engage in negotiations to arrive at an agreeable repayment plan, supervised by a resolution professional.
  • There could be no motive in mis-declaration of value when goods were wholly exempt
    Excise & Customs : Where, based on opinion of expert body, Tribunal found that : (a) goods were software and exempt from duty and (b) declared value thereof was not excessive, said findings, being findings of fact, were not to be interfered with [2015]  330 (SC) Commissioner of Customs  v. Contessa Commercial Co. Ltd.
  • No input tax credit of VAT paid on coal which was used as fuel in manufacturing
    CST & VAT : West Bengal VAT – Where assessee purchased coal after payment of VAT and used same both as raw material and fuel in manufacture of sponge iron, it was entitled to input tax credit only on that part of purchase price of coal which was utilised solely as raw material [2015]  331 (WBTT) Sova Ispat Ltd. v. JCCT, Bankura Charge
  • Condition of recording satisfaction u/s 153C can’t be bypassed even if AO of searched person and other person is same
  • IT: Recording of satisfaction by Assessing Officer having jurisdiction over person searched is an essential and prerequisite condition for bestowing jurisdiction to Assessing Officer of ‘other person’ under section 153C; even where Assessing Officer of searched person and such other person is same, Assessing Officer has to carry out dual exercise, first as Assessing Officer of person searched in which he has to record satisfaction and second as Assessing Officer of ‘other person’ [2015]  327 (Delhi – Trib.)Deputy Commissioner of Income-tax v. Satkar Roadlines (P.) Ltd
  • IT: Where assessee handed over chassises to fabricating agency on account of its expertise with an understanding that bus as a finished product would be delivered to assessee, said activity was a sale not works contract and assessee was not liable to TDS on payment to said agency [2015]  377 (Andhra Pradesh and Telangana) Commissioner of Income-tax v. A.P. State Road Transport Corporation
  • IT : Where in terms of directions issued by CLB, assessee-company paid certain amount over and above face value of shares to departing group of shareholders, amount so paid was to be allowed as revenue expenditure [2015] 13 (Bombay) CIT v. Bramha Bazar Hotels Ltd.
  • IT : Where assessee-company had received an amount of Rs. 35 lakhs from its directors towards share application money in cash, provisions of section 269SS were not applicable in instant case [2015] 15 (Hyderabad – Trib.) ITO v. Sunder Synthetics (P.) Ltd.
  • can’t file FIR against assessee due to default in payment of service tax
  • Service Tax : Finance Act, 1994, being a special and complete Code, prevails over general provisions of IPC and, accordingly, for alleged non-payment of service tax, department cannot filed FIR under provisions of IPC [2015] 281 (Punjab & Haryana) Ajay Kumar Sandhu v. State of Haryana
  • Receipt shown in P&L A/c liable to MAT even if it is shown as capital receipt in notes to accounts 2015]  122 (Bangalore – Trib.) B & B Infotech Ltd. v. ITO
  • IT: Auditor’s report cannot override provisions of Act and, thus, merely because assessee’s false claim for deduction is supported by a Chartered Accountant’s opinion, this fact per se cannot absolve assessee from penalty under section 271(1)(c) [2015]  89 (Chennai – Trib.) DCIT v. Rattha Citadines Boulevard Chennai (P.) Ltd.
  • IT: Where Assessing Officer raised huge tax demand upon assessee and in meantime bank account including cash credit account of assessee had been attached by income tax authorities, in view of decision of Madras High Court in case of K.M. Adam v. ITO [1958] 33 ITR 26, cash credit account of assessee could not be attached and it was entitled to be discharged [2015] 38 (Calcutta) P. C. Chandra & Sons (India) Ltd. v. DCIT
  • IT: Where refunds accrued to assessee for earlier assessment years were not processed, action of Assessing Officer by resorting to section 245 and adjusting same for any new subsisting due could not be valid [2015]  339 (Madras)  ACIT v. Sundaram Asset Management Co. Ltd.
  • CBDT to set-up a ‘Taxpayers’ Lounge’ at Pragati Maidan Trade Fair, Delhi

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