CBDT on Inititate penalty

CBDT clarifies that officer below the rank of JCIT can't initiate penalty proceedings u/s 271D or 271E

April 27, 2016

SECTION 271D, READ WITH SECTION 271E, OF THE INCOME-TAX ACT, 1961 - FAILURE TO COMPLY WITH PROVISIONS OF SECTION 269SS - PENALTY FOR - COMMENCEMENT OF LIMITATION FOR PENALTY PROCEEDINGS UNDER SECTIONS 271D AND 271E

CIRCULAR NO.9/DV/2016 [F.NO.279/MISC./M-116/2012-ITJ], DATED 26-4-2016

It has been brought to the notice of the Central Board of Direct Taxes (hereinafter referred to as the Board) that there are conflicting interpretations of various High Courts on the issue whether the limitation for imposition of penalty under sections 271D and 271E of the Income tax Act, 1961 (hereafter referred to as the Act) commences at the level of the Assessing Officer (below the rank of Joint Commissioner of Income Tax.) or at level of the Range authority i.e. the Joint Commissioner of Income Tax./Addl. Commissioner of Income Tax.

Some High Courts have held that the limitation commences at the level of the authority competent to impose the penalty i.e. Range Head while others have held that even though the Assessing Officer is not competent to impose the penalty, the limitation commences at the level of the Assessing Officer where the Assessing Officer has issued show cause notice or referred to the initiation of proceedings in assessment order.

2. On careful examination of the matter, the Board is of the view that for the sake of clarity and uniformity, the conflict needs to be resolved by way of a "Departmental View".

3. The Hon'ble Kerala High Court in the case of Grihalaxmi Vision v. Addl. Commissioner of Income Tax, Range 1, Kozhikode¹, vide its order dated 8-7-2015 in ITA Nos. 83 & 86 of 2014, observed that, "Question to be considered is whether proceedings for levy of penalty, are initiated with the passing of the order of assessment by the Assessing Officer or whether such proceedings have commenced with the issuance of the notice issued by the Joint Commissioner. From statutory provision, it is clear that the competent authority to levy penalty being the Joint Commissioner. Therefore, only the Joint Commissioner can initiate proceedings for levy of penalty. Such initiation of proceedings could not have been done by the Assessing Officer. The statement in the assessment order that the proceedings under sections 271D and E are initiated is inconsequential. On the other hand, if the assessment order is taken as the initiation of penalty proceedings, such initiation is by an authority who is incompetent and the proceedings thereafter would be proceedings without jurisdiction. If that be so, the initiation of the penalty proceedings is only with the issuance of the notice issued by the Joint Commissioner to the assessee to which he has filed his reply."

4. The above judgment reflects the "Departmental View". Accordingly, the Assessing Officers (below the rank of Joint Commissioner of Income Tax.) may be advised to make a reference to the Range Head, regarding any violation of the provisions of section 269SS and section 269T of the Act, as the case may be, in the course of the assessment proceedings (or any other proceedings under the Act). The Assessing Officer, (below the rank of Joint Commissioner of Income Tax) shall not issue the notice in this regard. The Range Head will issue the penalty notice and shall dispose/complete the proceedings within the limitation prescribed under section 275(1)(c) of the Act.

5. Where any High Court decides this issue contrary to the "Departmental View", the "Departmental View" thereon shall not be operative in the area falling in the jurisdiction of the relevant High Court. However, the CCIT concerned should immediately bring the judgment to the notice of the Central Technical Committee. The CTC shall examine the said judgment on priority to decide as to whether filing of SLP to the Supreme Court will be adequate response for the time being or some legislative amendment is called for.

6. The above clarification may be brought to the notice of all officers.

SC : Tips collected by hotel from customers and paid to employees couldn't be taxable as salary

Issue

"Whether tips collected by a hotel from customers and paid to employees could be chargeable as salary in hands of employees?"

The Supreme Court held as under-

(1)   Section 15 of the Income-tax Act which talks about salaries provides that there should be a vested right in an employee to claim any salary from an employer. (2)   Tips being purely voluntary amounts that may or may not be paid by customers for services rendered to them would not fall under Section 15 as there is no vested right in the employee to claim any amount of tip from his employer. (3)   Further, the said section provides that salary paid or allowed must have reference to contract of employment, i.e., an amount paid under contract of employment could only be treated as salary. (4)   In the instant case, the amount of tip paid by the employer to the employees had no reference to the contract of employment at all. Tips were received by the employer in a fiduciary capacity as trustee for payments that were received from customers which it disburse to its employees for service rendered to the customer. (5)   Hence, tips so disbursed to employees couldn't be chargeable to tax as salary.

No penalty on ‘Aishwarya Rai’ for TDS default if she relied on her CA’s advice [2016] 68taxmann.com 324 (Mumbai - Trib.)

Facts

a) Assessee (Aishwarya Rai Bachchan) made payment of US $ 77,500 to a non-resident for development of website without deducting TDS under Section 195.

b) The Assessing Officer (AO) observed that payment made for development of website would fall within the meaning of 'fees for technical services' as per Explanation 2 to Section 9(1)(vii). Therefore, payment so made was taxable in India in hands of non-resident and, hence, assessee had made default for not deducting TDS while making such payment. Consequently, the AO imposed penalty under section 271C for not deducting the TDS.

c) Assessee submitted that she had not deducted TDS by relying upon advice of her CA. Therefore, penalty shouldn’t be imposed as there was no mala fide intension on her part.

d) CIT(A) confirmed the order of AO. Aggrieved by the order of CIT(A), assessee filed the instant appeal before the tribunal.

The tribunal held in favour of assessee as under-
1) Section 273B provides that no penalty under section 271C should be imposed if assessee proves that there was a reasonable cause for failure to deduct TDS.

 2) It is a well-accepted fact that every citizen of the country is neither fully aware of nor is expected to know the technicalities of the Income Tax Act. Therefore, for discharging their statutory duties and obligations, they take assistance and advice of professionals who are well acquainted with the statutory provisions.

 3) In the instant case, assessee's CA had issued a certificate opining that tax was not required to be deducted at source on said remittance. Therefore, assessee under a bonafide belief didn’t deduct TDS while making such remittance.

 4) Therefore, failure on the part of the assessee to deduct tax at source was due to a reasonable cause. Hence, no penalty under Section 271C should be imposed-

 [2016] 68taxmann.com 324 (Mumbai - Trib.)

Service tax date extension

GOVERNMENT OF INDIA
MINISTRY OF FINANCE
DEPARTMENT OF REVENUE
CENTRAL BOARD OF EXCISE AND CUSTOMS
SERVICE TAX WING
NEW DELHI

ORDER NO

1/2016-Service Tax, Dated: April 25, 2016

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 2015 to 31st March 2016, from 25th April 2016 to 29th April 2016.

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

"Difficulties have been faced by assessees in accessing the ACES application on 25th April 2016"

F.No.137/99/2011-Service Tax

(Rajeev Yadav)
Director (Service Tax)
Central Board of Excise and Customs

Due date of filing ST-3 returns extended to 29th April from 25th

Govt extends the date of filing ST-3 returns to 29th April from 25th due to difficulties faced by taxpayers in ACES application

Restores Reverse Charge on Senior Advocates

Finance Minister restores "reverse charge" for service tax on Senior Advocates by CA Bimal Jain

 

The impasse over levying service tax on Senior Advocates seems to have been resolved. According to our sources, Finance Minister Arun Jaitley has restored the "reverse charge" mechanism when it comes to service tax on senior advocates.

Speaking to Bar & Bench, SCBA President Dushyant Dave said,

"I believe the Finance Minister has restored the "reverse charge" position. And if the sources are correct, I would like to personally thank the Finance Minister Arun Jaitley on behalf of the Bar and the fraternity of Senior Advocates for this clarification."

With this clarification from the Finance Minister, Senior Advocates like other advocates and law firms would now be covered under reverse charge mechanism i.e. the clients would deposit the tax with government directly.

In this year's Budget, Finance Minister Jaitley had decided to tax the services offered by senior advocates to an advocate or a law firm on a forward charge basis. This meant that the senior counsel would have to collect the tax (at the rate of 14 per cent) and deposit this with the authorities.

As expected, the provisions were immediately challenged in different courts; the Gujarat High Court had granted a stay, followed by a similar direction from the Delhi High Court.

Extension of Time Limit-ED-Jewellery

Extension of time limit for taking Central Excise registration by an establishment of Jeweller and payment of Excise Duty by Assessee Jeweller.

The Ministry of Finance vide Circular No. 1026/14/2016-CX dated April 23, 2016 has further extended the time limit for taking Central Excise registration of an establishment by jewellers up to July 1, 2016 which was earlier 60 days from March 1, 2016. Also, Assessee jeweller may pay Excise Duty of March, 2016 to May, 2016 with Excise duty of June, 2016.

Excise duty on Jewellery industry

Institute of Chartered accountant has published a book on excise duty on Jewellery industry. Which answers 105 questions on excise law. It also includes format of records and documents to be maintained. It can be downloaded from following link
http://icai.ind.in/newsletter/lt.php?c=627&m=364&nl=1707&s=2029b9226f3ef6655f1f5e7d142f39fb&lid=27685&l=-http--ucanapply.s3.amazonaws.com/icai/download/CELP_Jewellery%20sector_final_29.3.pdf

MCA Waives Addl Penalty

MCA waives off additional fee on e-forms due for filing from 25-03-2016 to 30-04-2016

April 14, 2016

SECTION 398 OF THE COMPANIES ACT, 2013 - PROVISIONS RELATING TO FILING OF APPLICATIONS, DOCUMENTS, INSPECTION, ETC., IN ELECTRONIC FORM - RELAXATION OF ADDITIONAL FEES AND EXTENSION OF LAST DATE OF FILING OF VARIOUS E-FORMS UNDER COMPANIES ACT

GENERAL CIRCULAR NO.3/2016 [F.NO.01/34/2013 CL-V], DATED 12-4-2016

This Ministry has launched V2R2 on 28th March, 2016, downtime was given to Infosys from 25th March, 2016 to 27th March, 2016. Since the launch of the system, a number of stakeholders have faced issues and representations have been received from stakeholders to resolve the issues including, for allowing waiver of additional fee till the new system stabilizes.

2. In view of the above, it has been decided to relax the additional fee payable on e-forms which are due for filing by companies between 25th March, 2016 to 30th April, 2016 as one time waiver of additional fee and it is also clarified to stakeholders that if such due e-forms are filed after 10-5-2016, no such relaxation shall be allowed.

3. This issues with the approval of the Competent Authority.

Foreign Tax Credit

Deductions allowed for tax paid in foreign nations

To improve ease of doing business and reduce litigation, the Central Board of Direct Taxes (CBDT) on Monday issued draft rules that would allow resident tax payers to claim deduction or credit for taxes paid in foreign jurisdictions.

The draft rules have proposed that the foreign tax credit would applicable on income tax, surcharge and cesses as well as against tax payable under minimum alternate tax.

But, the credit will not be provided for other sums such as interest, fee or penalty or taxes under dispute.

The rules, once finalised will allow for foreign tax credit with all countries with which India has a double tax avoidance agreement as well as tax paid by Indian residents in other specified countries.

At present, such a facility is not available in the Income Tax Act, 1961 and the introduction of such rules was one of the key recommendations of the Tax Administration Reform Commission.

"A committee was set up by CBDT to suggest the methodology for grant of foreign tax credit after examining the various issues related to it. After due consideration of the issues raised by various stakeholders, the Committee submitted its report," said the CBDT, adding that all comments should be submitted by May 2.

The draft rules have also proposed that the credit will be available to the resident assessee in the year in which the income has been taxed or assessed in India.

Further, the credit will be calculated separately for each source of income and from each country. The amount of credit available will be lower of the tax payable under the Income Tax Act on such income and the foreign tax already paid and will be calculated based on the conversion rate on the day the foreign tax was paid.

Taxpayers will also have to furnish documentary evidence for availing the credit including a certificate for the tax department of the foreign company, acknowledgement of online tax payment or bank counter foil and a declaration that the amount is not under any dispute.

Expert view

While welcoming the draft rules, analysts, however, said that they should have included other sums such as interest and penalty paid in a foreign country.

"They do not make any provisions for carry forward of excess foreign tax paid, neither do they address the issue of branch profits tax nor that of underlying tax credits for dividend income," said Rahul Jain, Partner, Nangia & Co.

To simplify the system, experts also suggested that taxpayers should be permitted to accumulate foreign tax credit from various countries and claim it together rather than individually for each source and country.

"Two points are noteworthy, namely, cess and surcharges in addition to tax will also be creditable and it will be available against MAT liability too," said Sudhir Kapadia, National Tax Leader, EY India.

Key Changes in ITR

Key changes in new income-tax return forms   Every year CBDT notifies new Income-Tax Return (ITR) forms. However, in the recent past CBDT had notified ITR forms a bit late causing inconvenience to various tax practitioner and taxpayers in filing ITRs within prescribed time. Thus, we have witnessed a spate of writ petitions in the various High Courts for extension of due date of filing return.   The Delhi High Court in case of Avinash Gupta v. Union of India [2015] 63 taxmann.com 121 (Delhi) criticized the Government for its delay in notifying ITR forms every year. The Delhi High Court made following remarks:   There appears to be no justification for delay beyond the assessment year in prescribing the ITR forms. Accordingly, the respondents are directed to, with effect from the next assessment year, at least ensure that the ITR form should be available as on 1st April of the assessment year unless there is a valid reason therefor.   Thus, considering such suggestion of the High Court the Government has now notified the ITR forms, namely, ITR-1, ITR-2, ITR-2A, ITR-3, ITR-4, ITR-4S, ITR-5, ITR-6 and ITR-7 on March 31, 2016.   The Finance Act, 2015 abolished the wealth-tax. Thus, taxpayers are no longer required to file returns of wealth tax from assessment year 2016-17 onwards. However, the Hon'ble Finance Minister in his budget speech had announced that information which was to furnished in wealth tax return will now form part of ITR.   Thus, in new ITR forms, namely, ITR-1, ITR-2, ITR-2A and ITR-4S the Government has imposed obligation on Individuals and HUFs having income exceeding Rs 50 lakhs to furnish information regarding assets and liabilities.  

Revised Schedule III

Notified IND-AS Schedule III - Emphasis on Statement of Changes in Equity

April 7, 2016

CA Vinayak Pai V

Introduction

The switch over from prevailing accounting standards to Indian Accounting Standards (IND-AS) for Phase 1 companies happens in the current fiscal year that commenced on April 1, 2016. For Phase 2 companies, the transition date for converging with IND-AS is also April 1, 2016.

On 6 April 2016, the Ministry of Corporate Affairs, notified an IND-AS compatible Schedule III to the Companies Act, 2013 and this amends the said Schedule by inserting an additional layer for companies that are required to converge with IND-AS. The Revised Schedule III provides general instructions and the formats for preparation and presentation of the Balance sheet and the income statement for companies that are required to comply with the Companies (Indian Accounting Standards) Rules, 2015.

There is much more emphasis on the Statement of Changes in Equity under IND-AS Schedule III than under the prevailing accounting framework (AS). While the statement of changes in equity is another schedule to the balance sheet and therefore not new to financial statement preparers/auditors in India, there are numerous core IFRS concepts (On which IND-AS is based) that come into play in a large measure, that surround the statement of changes in equity, when one starts analyzing impact of various IND-AS on individual corporate balance sheets.

IND-AS Schedule III - Statement of Changes in Equity

a) Backdrop

As per section 2(40) of the Companies Act, 2013, financial statement includes a statement of changes in equity, if applicable.

b) IND-AS Schedule III balance sheet requirements

   i) On the face of the balance sheet

A company is required to provide the following line items under equity on the face of the balance sheet:

    i) Equity share capital, and

   ii) other equity

  ii) In the Statement of Changes in Equity

The following needs to be provided in the statement of changes in equity as a schedule:

   a) Equity share capital (with the balance at the beginning of the reporting period, changes in equity share capital during the period and the closing balance)

   b) Other Equity

  •  Share application money pending allotment

  •  Equity component of compound financial instruments

  •  Reserves and surplus segregating

  •  Capital reserve,

  •  Securities premium reserve,

  •  Other reserves, and

  •  Retained earnings

  •  Components of other comprehensive income (OCI)

  •  Debt instruments through other comprehensive income

  •  Equity instruments through other comprehensive income

  •  Effective portion of cash flow hedges

  •  Revaluation surplus

  •  Exchange differences on foreign operations translation

  •  Other OCI items

  •  Money received against share warrants

It may be noted that other reserves need to be classified in the notes to the financial statements as capital redemption reserve, debenture redemption reserve and share options outstanding account.

Practical application of IND-AS Schedule III

IND-AS in-scope companies would need to apply the requirements of Revised Schedule III from the transition date. This means that Phase 2 companies are required to prepare a IND-AS Schedule III compliant balance sheet as of the date of transition namely April 1, 2016 in the preparation of both the stand-alone and consolidated financial statements. The requirements of the notified schedule also needs to be complied for steady-state external financial reporting too.

In the preparation of the consolidated balance sheet, non-controlling interest (NCI), if applicable, in a subsidiary needs to be reckoned and accounted appropriately in the statement of profit and loss, total comprehensive income layer of comprehensive income and in the statement of changes in equity. The requirements of IND-AS 1 and IND-AS 110 also, run in parallel.

Conclusion

Companies need to gear their internal financial accounting and reporting processes as well as their internal control mechanisms to comply with the requirements of the new financial reporting regime.

The statement of changes in equity, albeit another schedule to the financial statement, nevertheless plays a key role in imbibing the finer concepts that make the IFRS framework conceptually different from current Indian GAAP. Preparers and auditors need to make note of this.

The author can be reached at Vinayakpaiv@hotmail.com

FAQs on Panama Papers

1. What are the 'Panama Papers'?
The 'Panama Papers' are a set of confidential documents leaked from one of the biggest law firms of Panama - 'Mossack Fonseca'. The Panama Papers provide information about thousands of offshore entities, identities of their shareholders and directors. It listed various world leaders, public officials, billionaires, celebrities, sports stars and politicians.

2. How much data has been leaked and by whom?
a)  The leaked data consists of 11.5 Million Documents in around 2,600 GB taken from the Mossack Fonseca's internal database by one of its employees.
b)  These documents were obtained by Sueddeutsche Zeitung, a daily newspaper headquartered in Munich, Germany. Sueddeutsche shared the Panama Papers with the Washington-based International Consortium of Investigative Journalists (ICIJ) and other news outlets, including the BBC, the Guardian and the Indian Express.
c)  Sueddeutsche mentioned that an employee at the law firm had leaked the data, telling the newspaper that he had risked his life in doing so.

3. What does the Panama Papers reveal?
a)  The Panama Papers contain information on 2.15 lakhs offshore entities connected to people from more than 200 countries.
b)  The leaked data covers nearly 40 years period from 1977 through the end of 2015.
c)  It reveals the database of individuals who have set-up offshore entities through the Panama law firm.
d)  These individuals are either holding direct ownership or indirect ownership (beneficial ownership) in the offshore entities.
e)  Some of the Indians have also floated offshore entities at a time when foreign exchanges laws of India did not allow them to do so.

4. What is the authenticity of documents leaked?
Ramon Fonseca, one of the co-founder of the Mossack Fonseca, confirmed the authenticity of the papers being used in articles published by more than 100 news organizations around the world. He told to one of the Panama's news channel that the documents are real and were obtained illegally through a hacking method.

5. Who is 'Mossack Fonseca' and what is its role in this entire controversy?
a)  Mossack Fonseca & Co. is a law firm and corporate service provider based in Panama with more than 40 offices worldwide.
b)  It specializes in commercial law, trust services, investor advisory and international structures.
c)  It provides services like incorporating companies in offshore jurisdictions, wealth management, private banking, accounting services, etc.
d)  This law firm is one of the seven firms that collectively represent more than half of the companies incorporated in Panama.
e)  It also provides assistance in transferring funds, buying property, setting-up trusts or signing agreements with entities.
f)  Mossack Fonseca plays a crucial role in incorporating entities in tax havens. It had incorporated 14,658 active companies in Panama till August, 2013 out of which 4,646 companies were incorporated without providing any information about their shareholders.

6. How entities incorporated in Panama provide secrecy about the beneficial owners?
a)  Panama offers the most favorable and most flexible company incorporation laws available in the world. Private Interest Foundations are also available, and are one of the most widely used estate planning structures in the world today.
b)  Panama is the registered domicile for over 400,000 corporations & foundations, making it one of the most popular jurisdictions in the world to incorporate.
c)  Panama does not impose any reporting requirements for non-resident Panamanian corporations.
d)  Panama does not allow "piercing the corporate veil".
e)  Panamanian corporations share certificates can be issued in Nominative or Bearer form (anonymous form of ownership), with or without par value.
f)  Panamanian Companies can have directors, officers and shareholders of any nationality and resident of any country.
g)  The offshore entity in Panama need not appoint natural persons as directors or have individuals as shareholders.
h)  Neither the directors nor the officers of Panamanian corporations need to be shareholders. Meetings of directors, officers, and shareholders may be held in any country and accounting books may be kept in any country.
i)  It is not necessary for the interested parties to be present in Panama for the purpose of establishing a corporation. Corporations conducting business outside of Panama do not require a commercial license for offshore business activities.
j)  Registered Panamanian Agents offers its own executives to serve as shareholders or directors. Sometimes an intermediary law firm or a bank acts as a director or a nominee shareholder. So the real beneficiary remains hidden.
k)  The registered agent provides an official overseas address, a mail box, etc., none of which traces back the entity to the beneficial owner.

7. What are the key advantages of incorporating a Panamanian Company?
a)  The incorporation process is fast and can be achieved in 3 days.
b)  The identity of the shareholders is not publicly available.
c)  Nominee and bearer shares are allowed.
d)  There are no currency restrictions although the US dollar is regularly used.
e)  The transfer of shares can be done freely, which facilitates the transmission of assets in a confidential manner.
f)  The shareholders, directors and officers can be of any nationality and residents of any country.
g)  Meetings can be held in Panama or in any jurisdiction, subject to tax advice.
h)  Accounts do not need to be held in Panama.

8. What are Panama foreign exchange rules?
a)  Panama's circulating currency is the US Dollar, and Panama has no currency exchange controls or currency restrictions, so funds can flow in and out of the country freely.
b)  Panama uses the U.S. dollar as its legal currency, instilling tremendous fiscal and monetary discipline while keeping inflation very low - under 2 percent for the last 40 years.
c)  Panama has no restrictions on monetary remittances abroad, including dividends, interests, branch profits and royalties. No restrictions on funds flowing in or out of the country.
d)  A dollar economy insulates Panama from global economic shocks. During the Asian monetary crisis of 1998, Panama became one of the healthiest economies in Latin America.

9. How secure is banking infrastructure of Panama?
a)  Panama is one of the most secure offshore financial center - where privacy and confidentiality is vigorously protected by constitutional law.
b)  Panama offers the best bank secrecy and corporate book secrecy laws in the world.
c)  Panama has no provision for "piercing the corporate veil".
d)  Revealing banking information to third parties is a crime, punishable by prison.
e)  Panama has no mutual legal assistance treaties (MLAT's) for sharing of banking information with any other nation and does not recognize court rulings from other countries.
f)  Panama City is home to the second largest   international banking center in the world next to Switzerland. Panama has the most modern and successful international banking center in Latin America, with more than 150 banks from 35 different countries.
g)  Approximately 150 international banks are located in Panama. Total assets in Panamanian banks are over US$150 billion.
h)  Some of the banks present in Panama's banking center are: Citibank, HSBC, Dresdner Bank, Bank of Tokyo, Bank of Boston, Banco Nacional de Paris, International Commercial Bank of China, Societe Generale, Banque Sudameris, BBVA, Banco Uno, Banco General, PriBanco, Banco del Istmo, Global Bank, MultiCredit Bank, PanaBank, ABN Amro, Banco Aliado, Banco Continental, BancoLat, BIPAN, Lloyds TLB Bank, Bank of Nova Scotia BIPAN, Bank of Nova Scotia, and much more.

10. Why an offshore company is incorporated in Panama or other tax havens?
a)  Shell Companies are non-operational companies. These are legal entities having no independent operations, significant assets or employees.
b)  It is not time consuming or expensive to establish anonymous shell corporation. Agents charge fees of $800 to $6,000 as upfront cost and an annual charge for formation of companies and other additional services.