Central govt DA

Dearness allowance (DA) enhanced for Central Government employees with effect from 01.01.2013 from 72% to 80%.[Notification No. 1(2)/2013-E-II(B) Date: 25.04.2013]

Amendments to Finance Bill 2013

The Finance Bill 2013 has been passed by the Lok Sabha today (30.04.2013) after incorporating several important amendments. Among the important amendments is the proposed insertion of sub-section (3) to s. 252 to provide that the Central Government may inter alia appoint a person who is a sitting or retired Judge of a High Court as the President of the Tribunal

NO ST on CHIT

ST : Notification No.26/2012-ST dated 20-6-2012 quashed

ST : In a chit business, the subscription is tendered in any one of the forms of 'money' as defined in section 65B(33). It would, therefore, be a transaction in money. So considered, the transaction would fall within the exclusionary part of the definition of the word 'service' as being merely a transaction in money. This would be the result if the argument that the exclusionary part of the definition in clause (a) of section 65B(44) is considered to have been enacted ex abundant cautela; if the argument based on Explanation 2 to section 65B(44) read with the exclusionary part of the definition is accepted as correct, even then the services rendered by the foreman of the chit business for which a separate consideration is charged, not being an activity of the nature explained in the said Explanation, would be out of the clutches of the definition. Either way, there can be no levy of service tax on the footing that the services of a foreman of a chit business constitute a taxable service

Coaching Institute as trust

Coaching institute cannot be treated and registered as a charitable institution under Income Tax Act. [ITAT Cochin Bench M Star Charitable Society]

Cenvat credit on Construction can be used for ST on Renting

Cenvat credit on Construction can be used for ST on Renting

---

Excise paid on Inputs and ST on Input services used in construction can be utilized for discharging ST liability on renting of immovable property

 The Hon'ble Tribunal in the case of Oberoi Mall Ltd. Vs. Commissioner of Service Tax [2013-TIOL-604-CESTAT-MUM] has granted unconditional stay from recovery of Cenvat credit and penalty, the case is discussed as under:

 Issue:

 Whether excise duty paid on Inputs and Service Tax on Input services used in construction sector can be utilized for discharging Service Tax liability on renting of immovable property?

 Facts of the case:

 Oberoi Mall Ltd. ("The Appellant") is engaged in rendering the taxable service of 'renting of immovable property' and discharge service tax liability. The Appellant availed CENVAT credit of various services used for construction of the said mall and utilized the credit for payment of service tax on renting of immovable property services.

 The Central Board of Excise & Customs ("the CBEC") vide a Circular No.96/7/2007-ST dated 23/08/2007 as amended by Circular No 98/1/2007-S.T., dated 04/01/2008 ("the Circular") interalia clarified that commercial or industrial construction service or works contract service is an input service to the output 'immovable property' which is neither a service nor goods. Therefore, CENVAT credit of the service tax paid on construction service or works contract service cannot be taken.

 In view of the above Circular, the authorities issued show cause notice ("the SCN") to the Appellant proposing to deny CENVAT credit taken by the Appellant during the period April 2008 to March 2009 out of which an amount of Rs. 1,15,14,402/- was utilized for payment of service tax on the renting of immovable property service.

The SCN was adjudicated and the impugned order was passed wherein CENVAT credit of Rs. 6,00,63,212/- availed by the Appellant was disallowed in terms of Rule 14 of the CENVAT Credit Rules, 2004 ("the Credit Rules") read with Section 73(2) of the Finance Act, 1994 ("the Finance Act"). Also, credits of Rs. 32,24,111/- and Rs. 15,62,151/- taken by the Appellant were also disallowed in respect of input services such as security, telephone, commission, brokerage, advertising, repairs, installation, etc.

 Interest on the credit wrongly taken was demanded under Section 75 of the Finance Act and a penalty of Rs, 6,48,48,474/- was imposed on the Appellant under Rule 15 of the CENVAT Credit Rules read with Section 78 of the Finance Act and another penalty of Rs. 5,000/- was imposed under Section 77 thereof.

 Held:

 The Hon'ble Tribunal has held that Excise duty paid on Inputs and Service Tax paid on Input services used in the construction of immovable property can be taken and utilized for discharging ST liability on the renting of such immovable property and granted unconditional waiver from the pre-deposit of the dues adjudged against the Appellant and stay recovery thereof during the pendency of the Appeal on the basis of/ relying upon the following case laws:

1. Sai Sahmita Storages (P) Ltd. [2011 (270) ELT 33 (AP)] - The appellant was providing the service of storage and warehousing and took credit of excise duty paid on cement, iron bars, expansion bellows and pipes, etc. used in the manufacture of warehouse. The Hon'ble High Court noted that considering the definition of 'inputs' and 'input services' provided in the Credit Rules, the appellant was entitled for availment of credit on the excise duty paid on various inputs for payment of tax as the output services, namely, storage and warehousing services.

2. Navaratna S.G. Highway Property Pvt. Ltd. [2012 (28) STR 166 (Tri-Ahmd)] - The issue involved was availment of CENVAT credit of the service tax paid on 'commercial construction service, security service, advertising service, etc. The Hon'ble Tribunal held that excise duty paid on inputs and service tax paid on input services on the construction of malls can be taken as credit and utilized for payment of service tax on renting of immovable property when the mall is rented out.

Further to Note:

It is worthwhile to note that w.e.f. April 1, 2011 vide Notification No. 3/2011-C.E. (N.T.) dated March 1, 2011, definition of input and input services has been changed and any goods or specified input services used in construction contract or construction service has been excluded from the definition of input and input services respectively.

 Bimal Jain

FCA, ACS, LLB, B.Com (Hons)  

Exemption u/s. 11

Exemption u/s. 11 cannot be denied on mere non-compliance with provisions of Trust Act in earlier years under Income Tax Act. [High Court of Bombay G.K.R. Charities]

Service tax on customized software

Software developed as per customer's specifications are liable to service tax.[CESTAT, Mumbai Bench 3i Infotech Ltd]

Tolerance Limit-Arm's Length Price-TP

SECTION 92C OF THE INCOME-TAX ACT, 1961 - TRANSFER PRICING - COMPUTATION OF ARM'S LENGTH PRICE - NOTIFIED TOLERABLE LIMIT FOR DETERMINATION OF ALP

NOTIFICATION NO. 30/2013 [F.NO.500/185/2011-FTD-I], DATED 15-4-2013

In exercise of the powers conferred by the second proviso to sub-section (2) of section 92C of the Income Tax Act, 1961 (43 of 1961), the Central Government hereby notifies that where the variation between the arm's length price determined under section 92C and the price at which the international transaction or specified domestic transaction has actually been undertaken does not exceed one per cent of the latter for wholesale traders and three per cent of the latter in all other cases, the price at which the international transaction or specified domestic transaction has actually been undertaken shall be deemed to be the arm's length price for assessment year 2013-14.

Same Income can't be taxed twice

Same Income cannot be taxed both in the hand of Individual and HUF based on AIR information under Income Tax Act. [ITAT Mumbai Jyotindra Natwarlal Naik]

EPF

Download PF Member data in excel from www.epfindia.gov.in. Fill missing details, convert in text file and upload same on PF website by 26-04-2013.

Download Part A of Form 16

From FY 2012-13 download Part A of Form 16 (TDS and Deposit) from www.traces.gov.inand prepare Part B (Salary and Deductions) himself. [Circular 4/2013 of 17-04-2013]

Due date of filing half yearly ST-3 return extended to 31st August, 2013

Due date of filing half yearly ST-3 return extended to 31st August, 2013

SECTION 70 OF THE FINANCE ACT, 1994, READ WITH RULE 7 OF THE SERVICE TAX RULES, 1994 - FURNISHING OF RETURNS – DUE DATE FOR SUBMISSION OF FORM ST-3 FOR PERIOD FROM 1-10-2012 TO 31-3-2013 EXTENDED FROM 25-4-2013 TO 31-8-2013

ORDER NO. 3/2013-ST [F.NO.137/99/2011-ST], DATED 23-4-2013

In exercise of the powers conferred by sub-rule (4) of rule 7 of the Service Tax Rules, 1994, the Central Board of Excise & Customs hereby extends the date of submission of the Form ST-3, for the period from 1st October 2012 to 31st March 2013, from 25th April, 2013 to 31st August, 2013.

The circumstances of a special nature, which have given rise to this extension of time, are as follows:

"The Form ST-3, for the period from 1st October 2012 to 31st March 2013, is expected to be available on ACES around 31st of July, 2013".

Re-open by AO

Reopening solely on basis of objection of audit party without application of mind by AO is not valid under Income Tax Act. [High Court of Gujrat Jagat Jayantilal Parikh]

Investor Grievances

All listed companies to redress investor grievances and inform them in 30 days of receipt of complaints. Failure to attract penal action.[CIR/OIAE/1/2013 of 17-04-2013]

Section 80-IA(5)

Section 80-IA(5) – Absorbed losses pre `initial assessment year' need not be set off under Income Tax Act. [ITAT Mumbai M/s. Shevie Exports]

CBEC on Pandal

SECTION 66E(f) OF THE FINANCE ACT, 1994 - DECLARED SERVICES - HIRING OF GOODS SERVICES - HIRING/ERECTION OF PANDAL OR SHAMIANA FOR EVENTS DOESN'T AMOUNT TO TRANSFER OF RIGHT TO USE GOODS AND IS LIABLE TO SERVICE TAX

CIRCULAR NO.168/3/2013-ST [F.NO.356/2/2013-TRU], DATED 15-4-2013

Several representations have been received seeking clarification on the levy of service tax on the activity of preparation of place for organizing event or function by way of erection/laying of pandal and shamiana. The doubt that has been raised is that this may be a transaction involving "transfer of right to use goods" and hence deemed sale.

2. The issue has been examined. "Service" defined in section 65B(44) of the Finance Act, 1994, includes a 'declared service'. Activity by way of erection of pandal or shamiana is a declared service, under section 66E 8(f). The process of erection of Pandal or shamiana is a reasonably specialized job and is carried out by the supplier with the help of his own labour. In addition to the erection of pandal or shamiana the service is generally coupled with other services like supply of crockery, furniture, sound system, lighting arrangements, etc.

3. For a transaction to be regarded as "transfer of right to use goods", the transfer has to be coupled with possession. Andhra Pradesh High Court in the case of Rashtriya Ispat Nigam Ltd. v. CTO [1990 77 STC 182] held that since the effective control and possession was with the supplier, there is no transfer of right to use. This decision of the Andhra Pradesh High Court was upheld by the Supreme Court subsequently [2002] 126 STC 0114. In the matter of Harbans Lal v. State of Haryana [1993] 088 STC 0357 [Punjab and Haryana High Court], a view was taken that if pandal, is given to the customers for use only after having been erected, then it is not transfer of right to use goods.

4. In the case of BSNL v. UOI [2006] 3 STT 245 Hon'ble Supreme Court held that to constitute the transaction for the transfer of the right to use the goods, the transaction must have the following attributes:-

a.		There must be goods available for delivery;
b.		There must be a consensus ad idem as to the identity of the goods;
c.		The transferee should have a legal right to use the goods and, consequently, all legal consequences of such use including any permissions or licenses required therefor should be available to the transferee;
d.		For the period during which the transferee has such legal right, it has to be the exclusion of the transferor : this is the necessary concomitant or the plain language of the statute, viz., a "transfer of the right to use" and not merely a license to use the goods;
e.		Having transferred the right to use the goods during the period for which it is to be transferred, the owner cannot again transfer the same right to others.

5. Applying the ratio of above judgments and the test formulated by Hon'ble Supreme Court, the activity of providing pandal and shamiana along with erection thereof and other incidental activities do not amount to transfer of right to use goods. It is a service of preparation of a place to hold a function or event. Effective possession and control over the pandal or shamiana remains with the service provider, even after the erection is complete and thespecially made–up space for temporary use handed over to the customer.

6. Accordingly services provided by way of erection of pandal or shamiana would attract the levy of service tax.

7. Trade Notice/Public Notice may be issued to the field formations and tax payers. Please acknowledge receipt of this Circular.

 

Decution u/s 139(1)

Deduction not claimed in Return U/s. 139(1) can be claimed in Return filed U/s.153A under Income Tax Act. [ITAT Chennai V.N. Devadoss]

Turnover for Applicability of AS forLevel II

W.e.f. accounting year 2012-13, ICAI raises limit of turnover for applicability of Accounting Standards for Level II Entities(SMEs) from 40 lacs to 1 crore.

Relaxation in Additional Fee-ROC

RELAXATION OF ADDITIONAL FEES AND EXTENSION OF LAST DATE IN FILING OF VARIOUS FORMS WITH THE MINISTRY OF CORPORATE AFFAIRS - FURTHER EXTENSION OF TIME LIMIT FOR FILING AND RELAXATION OF ADDITIONAL FEE ON FORMS

CIRCULAR NO. 08/2013 [NO. 17/187/2011-CL-V], DATED 10-4-2013

In continuation of the Ministry's General Circular No. 03/2013, dated 8-2-2013 and 07/2013, dated 20-3-2013 on the subject cited, I am directed to inform you that with the approval of competent authority the time limit for filing and relaxation of additional fee on forms has been extended till 15-4-2013.

Further it is clarified that fee payable for forms on/till 16-1-2013 will remain payable along with additional fee and relaxation of any additional fee will be considered for forms on or after 17-1-2013.

All other terms and conditions of the General Circular No. 03/2013, dated 8-2-2013 will remain the same.

PSR

As to soon offer free auditing services

The call for Corporate Social Responsibility (CSR) by the corporate affairs ministry has turned into a Professional Social Responsibility (PSR) for lakhs of Chartered Accountants (CAs) who may soon provide free auditing and accounting services in the country.

Institute of Chartered Accountants of India (ICAI), the apex body responsible for accounting and auditing standards in the country, has decided to offer 'free' auditing services to at least 100 auditable entities belonging to the deprived classes, micro, small and medium enterprise or those located in the tribal, remote and rural areas from this fiscal.

Speaking to FE, ICAI president Subodh Kumar Agrawal said the CA body is willing to scale up the free services to up to 1,000 entities, if need be. "ICAI will now form a panel of volunteering CAs and discuss the modalities for putting this into effect with the corporate affairs ministry," Agrawal said.

It will be a first such initiative by CAs since ICAI come into existence in 1949.

But the concept is not new for the profession around the world. In the UK and Ireland, the CA firms are providing their advisory, auditing and accounting services free-of-charge or on reduced rates for charities. Such services also qualify as community services, especially if provided to local bodies. The CAs of Ireland have formed a Chartered Accountants Voluntary Advice service (CAVA) which provides free business advisory services nationwide.

In order to increase its active participation in nation building, the ICAI has also entered into a memorandum of understanding (MoU) with the department of posts. Under the MoU, ICAI will help India Post in switching over from cash-based accounting to accrual based accounting. "We are organising a series of training programmes on accrual basis of accounting in the Postal Accounts Offices across all 22 circles in the country. In this regard, programmes have been organised at Jaipur, Bangalore, Lucknow & Chennai," Agrawal said.

According to ICAI, it has also urged for mandatory independent information system audits for all cooperative societies, NGOs and educational trusts apart from internal audits. "The independent audit through Chartered Accountants would ensure transparency and reduce the discrepancies. Further for audit of Cooperative Societies, ICAI has made representations to various state authorities for empanelment of cooperative auditors," Agrawal said.

Talking about other recent initiatives, ICAI president said the Securities and Exchange Board of India (Sebi) had sought support from ICAI to review the audit qualification of the listed enterprises. "The Sebi has set up a new Qualified Audit Report Review Committee (QARC) which among other members will comprise of the representatives of the ICAI and the Stock Exchanges. While its role will be to guide Sebi in processing the qualified annual audit reports, ICAI will assess the materiality of the qualification contained in auditor's report, based on which QARC may even direct the entity to restate its books of accounts," Agrawal said.

[Source: The Financial Express]

 

e Filing of Forms-Other than ITR

Income tax E filing site has started accepting 30 New e forms (other than ITR FORMS) .This forms are available in two modes .Few of them can be filed online after login to your account and other can be filled offline and then uploaded to as scan copy or XML file as the case may be , at income tax website .

Many of these forms are related to Filing of income tax return ,which is earlier required to be annexed with manual Income tax return Like Tax audit report etc .

Present rule (annexure less return): However as per present applicable rules noting is to be attached with income tax return form filed as paper return or as a e filing .But from availability of 30 forms for e filing at new Income tax India E filing site ,any body can easily guess that from Assessment year 2013-14 these will be required to be mandatory to upload these forms along with income tax return. 

Online/offline forms will be shown according to login details .Means only relevant forms will be shown,suppose  if you login as Individual ,Form related to company ,firm will not be shown to you.

Read more: http://www.simpletaxindia.net/2013/04/e-filing-of-30-new-formsother-than-itr.html?utm_source=feedburner&utm_medium=email&utm_campaign=Feed%3A+SimpletaxIndia+%28SIMPLE+TAX+INDIA%29#ixzz2PwMla6ep

AGM CAN BE HELD ON SUNDAY

ANALYSIS OF 3 CASES AS DISCUSSED IN ARTICLE, "AGM CAN BE HELD ON SUNDAY" AND RECOMMENDATION                   OF BEST OPTION FOR HOLDING AGM ON SUNDAY

 

ANALYSIS OF CASE 1: ADJOURNED AGM CAN BE HELD ON SUNDAY

As adjourned AGM is merely continuation of original AGM, original date of AGM should have been given in Form 23AC and Form 20B as date of AGM and not of 30^th September. Hence, this option is not recommended. ROC can also issue notice to professional who signed form 23AC and 20B.

 

ANALYSIS OF  CASE 2: YES,  AGM CAN BE HELD ON SUNDAY IF PROCEDURE TO SEC. 166(2) HAS BEEN FOLLOWED.

If you opt to change article of association in back date, which means this option is costly too. Hence, this option is not recommended.

However, it is better to pass resolution in Last/ previous AGM, which has been discussed in case 3 below.

 

ANALYSIS OF  CASE 3: WHEN DATE OF AGM OF 2012 HAS BEEN FIXED IN AGM OF 2011

Proviso 2 to sec. 166 enables this option. Letter No. 8/5(1669/65-PR dated 21-1-1963 supports this option. This option is very simple and cost effective also.

 

RECOMMENDATION: GO FOR OPTION 3

CA NITESH MORE, 

KOLKATA, WEST BENGAL 

9883157484

 

 AGM CAN BE HELD ON SUNDAY

PREPARED BY CA NITESH MORE: 9883157484

 

Vide letter No. 8/5(1669/65-PR dated 21-1-1963, AGM can be held on Sunday in certain cases: CA Nitesh More

 

 

CASE 1: YES, ADJOURNED AGM CAN BE HELD ON SUNDAY.

 

CASE 2: YES,  AGM CAN BE HELD ON SUNDAY IF PROCEDURE TO SEC. 166(2) HAS BEEN FOLLOWED.

 

CASE 3: WHEN DATE OF AGM OF 2012 HAS BEEN FIXED IN AGM OF 2011

 

CASE 1: YES, ADJOURNED AGMCAN BE HELD ON SUNDAY.

AS PER CIRCULAR NO 8/16(1)/61-PR, THERE IS NO CONTRAVENTION OF SEC. 166(2) IF THE ADJOURNED AGMCOMES TO BE ACCIDENTALLY HELD ON A PUBLIC HOLIDAY.

EXAMPLE:  AGM CALLED ON 29^TH SEP, 2012, ADJOURNED TO 30^TH SEP., 2012 WHICH HAPPENED TO BE PUBLIC HOLIDAY.

COMMENT: PROVISION OF SEC 174 MUST BE COMPLIED WITH I.E. BOARD MEETING MUST BE CALLED TO FIX DATE AND TIME OF ADJOURNED AGMTO 30^TH SEPTEMBER.

SEC 174: QUORUM FOR MEETING HAS BEEN REPRODUCED BELOW:

(1) Unless the articles of the company provide for a larger number, five members personally present in the case of public company (other than a public company which has become such by virtue of section 43A), and two members personally present in the case of any other company, shall be the quorum for a meeting of the company.

(2) Unless the articles of the company otherwise provide, the provisions of sub-sections (3), (4) and (5) shall apply with respect to the meetings of a public or private company.

(3) If within half an hour from the time appointed for holding a meeting of the company, a quorum is not present, the meeting, if called upon the requisition of members, shall stand dissolved.

(4) In any other case, the meeting shall stand adjourned to the same day in the next week, at the same time and place, or to such other day and at such other time and place as the Board may determine.

(5) If at the adjourned meeting also, a quorum is not present within half an hour from the time appointed for holding the meeting, the members present shall be a quorum.

 

 

CASE 2: YES, AGM CAN BE HELD ON SUNDAY IF PROCEDURE TO SEC. 166(2) HAS BEEN FOLLOWED.

 Kindly note that Proviso 2   to sec 166(2) allows private and public ltd co to fix date, time and place of AGM as discussed below:

a)     In case of a private company which is not a subsidiary of a public company: Three options has been provided to fix date, time and place of AGM:

·          Option 1:  by its articles fix the time(date)  for its annual general meetings

·          Option 2:  by a resolution passed in one annual general meeting fix the time for its subsequent annual general meetings

·         Option 3:  by a resolution   agreed to by all the members thereof, fix the times (date) for its annual general meeting.

b)     In case of a public company or a private company which is a subsidiary of a public company: Two options has been provided to fix date , time and place of AGM:

·         Option 1: may by its articles fix the time(date)  for its annual general meetings

·          Option 2: may also by a resolution passed in one annual general meeting fix the time for its subsequent annual general meetings

 

EXAMPLE: ABC  PVT LTD , on 31^st july,2012 ,  a resolution agreed by all members to fix date of all AGM to 30^th sep . every year. Now 30^th September, happens to be Sunday. AGM held on 30^th September, 2012.

Answer: AGM is valid on the following two grounds:

Ground 1: AGM inadvertently held on Sunday as a resolution agreed by all members was passed. As per circular no 8/16(1)/61-pr, there is no contravention of sec. 166(2) if the adjourned AGM comes to be accidentally held on a public holiday. If the adjourned AGM can be valid than  AGM agreed by all members on 30^th September every year can also be valid, even if it eventually comes to Sunday.

Ground 2:  Proviso 2 to sec 166(2) allow private ltd company and public ltd company to hold AGM on a day and place agreed upon by its members. When the proviso allows these companies to fix date and place of AGM by following certain procedure, what is stated in sec 166(2) itself cannot be made applicable to these companies.

 

RELEVANT SECTION  HAS BEEN REPRODUCED BELOW FOR YOUR READY REFERENCE:

 

SEC 166(2):  Every annual general meeting shall be called for a time during business hours, on a day that is not a public holiday, and shall be held either at the registered office of the company or at some other place within the city, town or village in which the registered office of the company is situates:

Provided that the Central Government may exempt any class of companies from the provisions of this sub-section subject to such conditions as it may impose:

Provided further that -

(a) a public company or a private company which is a subsidiary of a public company, may by its articles fix the time for its annual general meetings and may also by a resolution passed in one annual general meeting fix the time for its subsequent annual general meetings ; and

(b) a private company which is not a subsidiary of a public company, may in like manner and also by a resolution  agreed to by all the members thereof, fix the times as well as the place for its annual general meeting.

 

CASE 3: WHEN DATE OF AGM OF 2012 HAS BEEN FIXED IN AGM OF 2011

PREPARED BY CA NITESH MORE

9883157484

 

 Private ltd company as well as public ltd company may also by a resolution passed in one annual general meeting fix the time for its subsequent annual general meetings (Proviso 2 to sec 166(2)) :

 

EXAMPLE: ABC  LTD  by a resolution passed in  its AGM on 30^th September, 2011 , fixed the time for its next AGM on 30^th September , 2012 on 11a.m. Now 30^th September, happens to be Sunday. AGM held on 30^th September, 2012.

 

 

DRAFT REPLY TO ROC

 

To                                                                                                                Date: 03/04/2013

The Registrar of Companies, West Bengal

Nizam Palace
Kolkata - 700020

Sir,

Re: In the matter of the Companies Act, 1956.

and in the matter of M/s. __________ Private Limited/ Limited

(CIN: )

 

Sub: Default Notice on the ground of non-compliance of section 166 of the Companies Act, 1956

 

Reference:  Your dated         letter no.

 

The Company, as well as its directors are in receipt of the above mentioned letter to Show Cause as to why action should not be taken for prosecution under section 168 for holding Annual General Meeting on 30/09/2012 (Public Holiday).

 

We would like to submit as under:

 

·         You attention is invited to letter No. 8/5(1669/65-PR dated 21-1-1963,which states that  sec 166(2) does not make it absolute mandatory to hold AGM only on a day which is public holiday. Attention is also invited to 2^ndproviso to sec. 166(2).

·         The shareholders in AGM of 2012 by passing a resolution under proviso 2 to sec. 166 had fixed 30^thSeptember as date of AGM of 2013.

·         The Company and its officers were under compulsion to hold AGM on Sunday being 30th September which is the date fixed as date of AGM by shareholders in AGM of 2012 as date of AGM of 2013.

·         The Company and its officers inadvertently/accidently hold AGM on Sunday being 30^th September.

·         Under Proviso 2 to sec 166(2), private ltd company as well as public ltd company may by a resolution passed in one annual general meeting fix the time for its subsequent annual general meetings.

·         Certified Copy of Resolution passed in 2011 has been attached for your reference.

 

 

In light of the above, the Company and its directors requests to forgo launching of prosecution as well as any penalty proceeding against the Company and its Directors.

 

 

Thanking you

 

For ____________Private Limited/ Limited

 

 

Director

 

RELEVANT SECTION  HAS BEEN REPRODUCED BELOW FOR YOUR READY REFERENCE:

 

SEC 166(2):  Every annual general meeting shall be called for a time during business hours, on a day that is not a public holiday, and shall be held either at the registered office of the company or at some other place within the city, town or village in which the registered office of the company is situates:

Provided that the Central Government may exempt any class of companies from the provisions of this sub-section subject to such conditions as it may impose:

Provided further that -

(a) a public company or a private company which is a subsidiary of a public company, may by its articles fix the time for its annual general meetings and may also by a resolution passed in one annual general meeting fix the time for its subsequent annual general meetings ; and

(b) a private company which is not a subsidiary of a public company, may in like manner and also by a resolution  agreed to by all the members thereof, fix the times as well as the place for its annual general meeting.

 

CA NITESH MORE

Object to Reassessment

Objection to reassessment after silent participation in proceedings is not valid under Income Tax Act.[High Court of Allahabad Shyam Cold Storage]

DISA qualified members are also eligible to conduct annual systems audit

BSE, vide its Notice No 20130405-5 dated 05 April 2013, has clarified that DISA qualified members are also eligible to conduct annual systems audit of trading members who have availed of the IML/ Internet facility from the Exchange.

IndianCAs: AGM CAN BE HELD ON SUNDAY: 3 CASES [1 Attachment]

 

[Attachment(s) from Ashwin Nagar included below]

When ROC has sent thousands of notices across the nation, here is something that could be of help to you received from Nitesh More.

| Ashwin Nagar | FCA and SAP-Finance & Consolidations |

Success is not permanent and failure is not final

 

NOTE: Vide letter No. 8/5(1669/65-PR dated 21-1-1963, AGM can be held on Sunday in certain cases: CA Nitesh More

 

 

 AGM CAN BE HELD ON SUNDAY

PREPARED BY CA NITESH MORE: 9883157484

 

CASE 1: YES, ADJOURNED AGM CAN BE HELD ON SUNDAY.

 

CASE 2: YES,  AGM CAN BE HELD ON SUNDAY IF PROCEDURE TO SEC. 166(2) HAS BEEN FOLLOWED.

 

CASE 3: WHEN DATE OF AGM OF 2012 HAS BEEN FIXED IN AGM OF 2011

 

CASE 1: YES, ADJOURNED AGMCAN BE HELD ON SUNDAY.

AS PER CIRCULAR NO 8/16(1)/61-PR, THERE IS NO CONTRAVENTION OF SEC. 166(2) IF THE ADJOURNED AGMCOMES TO BE ACCIDENTALLY HELD ON A PUBLIC HOLIDAY.

EXAMPLE:  AGM CALLED ON 29^TH SEP, 2012, ADJOURNED TO 30^TH SEP., 2012 WHICH HAPPENED TO BE PUBLIC HOLIDAY.

COMMENT: PROVISION OF SEC 174 MUST BE COMPLIED WITH I.E. BOARD MEETING MUST BE CALLED TO FIX DATE AND TIME OF ADJOURNED AGMTO 30^TH SEPTEMBER.

SEC 174: QUORUM FOR MEETING HAS BEEN REPRODUCED BELOW:

(1) Unless the articles of the company provide for a larger number, five members personally present in the case of public company (other than a public company which has become such by virtue of section 43A), and two members personally present in the case of any other company, shall be the quorum for a meeting of the company.

(2) Unless the articles of the company otherwise provide, the provisions of sub-sections (3), (4) and (5) shall apply with respect to the meetings of a public or private company.

(3) If within half an hour from the time appointed for holding a meeting of the company, a quorum is not present, the meeting, if called upon the requisition of members, shall stand dissolved.

(4) In any other case, the meeting shall stand adjourned to the same day in the next week, at the same time and place, or to such other day and at such other time and place as the Board may determine.

(5) If at the adjourned meeting also, a quorum is not present within half an hour from the time appointed for holding the meeting, the members present shall be a quorum.

 

 

CASE 2: YES, AGM CAN BE HELD ON SUNDAY IF PROCEDURE TO SEC. 166(2) HAS BEEN FOLLOWED.

 Kindly note that Proviso 2   to sec 166(2) allows private and public ltd co to fix date, time and place of AGM as discussed below:

a)     In case of a private company which is not a subsidiary of a public company: Three options has been provided to fix date, time and place of AGM:

·          Option 1:  by its articles fix the time(date)  for its annual general meetings

·          Option 2:  by a resolution passed in one annual general meeting fix the time for its subsequent annual general meetings

·         Option 3:  by a resolution   agreed to by all the members thereof, fix the times (date) for its annual general meeting.

b)     In case of a public company or a private company which is a subsidiary of a public company: Two options has been provided to fix date , time and place of AGM:

·         Option 1: may by its articles fix the time(date)  for its annual general meetings

·          Option 2: may also by a resolution passed in one annual general meeting fix the time for its subsequent annual general meetings

 

EXAMPLE: ABC  PVT LTD , on 31^st july,2012 ,  a resolution agreed by all members to fix date of all AGM to 30^th sep . every year. Now 30^th September, happens to be Sunday. AGM held on 30^th September, 2012.

Answer: AGM is valid on the following two grounds:

Ground 1: AGM inadvertently held on Sunday as a resolution agreed by all members was passed. As per circular no 8/16(1)/61-pr, there is no contravention of sec. 166(2) if the adjourned AGM comes to be accidentally held on a public holiday. If the adjourned AGM can be valid than  AGM agreed by all members on 30^th September every year can also be valid, even if it eventually comes to Sunday.

Ground 2:  Proviso 2 to sec 166(2) allow private ltd company and public ltd company to hold AGM on a day and place agreed upon by its members. When the proviso allows these companies to fix date and place of AGM by following certain procedure, what is stated in sec 166(2) itself cannot be made applicable to these companies.

 

RELEVANT SECTION  HAS BEEN REPRODUCED BELOW FOR YOUR READY REFERENCE:

 

SEC 166(2):  Every annual general meeting shall be called for a time during business hours, on a day that is not a public holiday, and shall be held either at the registered office of the company or at some other place within the city, town or village in which the registered office of the company is situates:

Provided that the Central Government may exempt any class of companies from the provisions of this sub-section subject to such conditions as it may impose:

Provided further that -

(a) a public company or a private company which is a subsidiary of a public company, may by its articles fix the time for its annual general meetings and may also by a resolution passed in one annual general meeting fix the time for its subsequent annual general meetings ; and

(b) a private company which is not a subsidiary of a public company, may in like manner and also by a resolution  agreed to by all the members thereof, fix the times as well as the place for its annual general meeting.

 

CASE 3: WHEN DATE OF AGM OF 2012 HAS BEEN FIXED IN AGM OF 2011

PREPARED BY CA NITESH MORE

9883157484

 

 Private ltd company as well as public ltd company may also by a resolution passed in one annual general meeting fix the time for its subsequent annual general meetings (Proviso 2 to sec 166(2)) :

 

EXAMPLE: ABC  LTD  by a resolution passed in  its AGM on 30^th September, 2011 , fixed the time for its next AGM on 30^th September , 2012 on 11a.m. Now 30^th September, happens to be Sunday. AGM held on 30^th September, 2012.

 

 

DRAFT REPLY TO ROC

 

To                                                                                                                Date: 03/04/2013

The Registrar of Companies, West Bengal

Nizam Palace
Kolkata - 700020

Sir,

Re: In the matter of the Companies Act, 1956.

and in the matter of M/s. __________ Private Limited/ Limited

(CIN: )

 

Sub: Default Notice on the ground of non-compliance of section 166 of the Companies Act, 1956

 

Reference:  Your dated         letter no.

 

The Company, as well as its directors are in receipt of the above mentioned letter to Show Cause as to why action should not be taken for prosecution under section 168 for holding Annual General Meeting on 30/09/2012 (Public Holiday).

 

We would like to submit as under:

 

·         You attention is invited to letter No. 8/5(1669/65-PR dated 21-1-1963,which states that  sec 166(2) does not make it absolute mandatory to hold AGM only on a day which is public holiday. Attention is also invited to 2^nd proviso to sec. 166(2).

·         The shareholders in AGM of 2012 by passing a resolution under proviso 2 to sec. 166 had fixed 30^th September as date of AGM of 2013.

·         The Company and its officers were under compulsion to hold AGM on Sunday being 30th September which is the date fixed as date of AGM by shareholders in AGM of 2012 as date of AGM of 2013.

·         The Company and its officers inadvertently/accidently hold AGM on Sunday being 30^th September.

·         Under Proviso 2 to sec 166(2), private ltd company as well as public ltd company may by a resolution passed in one annual general meeting fix the time for its subsequent annual general meetings.

·         Certified Copy of Resolution passed in 2012 has been attached for your reference.

 

 

In light of the above, the Company and its directors requests to forgo launching of prosecution as well as any penalty proceeding against the Company and its Directors.

 

 

Thanking you

 

For ____________Private Limited/ Limited

 

 

Director

 

RELEVANT SECTION  HAS BEEN REPRODUCED BELOW FOR YOUR READY REFERENCE:

 

SEC 166(2):  Every annual general meeting shall be called for a time during business hours, on a day that is not a public holiday, and shall be held either at the registered office of the company or at some other place within the city, town or village in which the registered office of the company is situates:

Provided that the Central Government may exempt any class of companies from the provisions of this sub-section subject to such conditions as it may impose:

Provided further that -

(a) a public company or a private company which is a subsidiary of a public company, may by its articles fix the time for its annual general meetings and may also by a resolution passed in one annual general meeting fix the time for its subsequent annual general meetings ; and

(b) a private company which is not a subsidiary of a public company, may in like manner and also by a resolution  agreed to by all the members thereof, fix the times as well as the place for its annual general meeting.

 

CA NITESH MORE

9883157484

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AGM CAN BE HELD ON SUNDAY 3 CASES.doc

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