24 August 2010

Circular on Works Contract

Circular No. 128/10/2010-ST

F.No.354/141/2010-TRU

Government of India

Ministry of Finance

Department of Revenue

Central Board of Excise & Customs

(Tax Research Unit)

*****

North Block, New Delhi,

24 thAugust, 2010.

To

Director General (Service Tax),

Director General (Central Excise Intelligence)

Director General (Audit)

Chief Commissioner of Central Excise and Service Tax (All)

Commissioner of Central Excise and Customs (All)

Commissioner of Central Excise and Service Tax (All)

Commissioner of Service Tax (All)

Madam/Sir,

Subject: Service tax on on-going works contracts entered into prior to 01.06.2007 – regarding –

It has been brought to the notice of the Board that the following confusions/disputes prevail with respect to long term works contracts which were entered into prior to 01.06.2007 (when the taxable service, namely, Works contract came into effect) and were continued beyond that date:

(i) While prior to the said date services like Construction; Erection, commissioning or installation; Repair services were classifiable under respective taxable services even if they were in the nature of works contract, whether the classification of these activities would undergo a change?

(ii) Whether in such cases of continuing contracts, the Works Contract (Composition Scheme for payment of Service Tax) Rules, 2007 under Notification No. 32/2007-ST dated 22/05/2007 would be applicable?

2. The matter has been examined. As regards the classification, with effect from 01.06.2007 when the new service 'Works Contract' service was made effective, classification of aforesaid services would undergo a change in case of long term contracts even though part of the service was classified under the respective taxable service prior to 01.06.2007. This is because 'works contract' describes the nature of the activity more specifically and, therefore, as per the provisions of section 65A of the Finance Act, 1994, it would be the appropriate classification for the part of the service provided after that date.

3. As regards applicability of composition scheme, the material fact would be whether such a contract satisfies rule 3 (3) of the Works Contract (Composition Scheme for payment of Service Tax) Rules, 2007. This provision casts an obligation for exercising an option to choose the scheme prior to payment of service tax in respect of a particular works contract. Once such an option is made, it is applicable for the entire contract and cannot be altered. Therefore, in case a contract where the provision of service commenced prior to 01.06.2007 and any payment of service tax was made under the respective taxable service before 01.06.2007, the said condition under rule 3(3) was not satisfied and thus no portion of that contract would be eligible for composition scheme. On the other hand, even if the provision of service commenced before 01.06.2007 but no payment of service tax was made till the taxpayer opted for the composition scheme after its coming into effect from 01.06.2007, such contracts would be eligible for opting of the composition scheme.

4. The Board's previous Circular No. 98/1/2008-ST dated 04.01.2008 and the ratio of judgement of the High Court of Andhra Pradesh in the matter of M/s. Nagarjuna Construction Company Limited vs. Government of India (2010 TIOL 403 HC AP ST) are in line with the above interpretation.

5. Trade Notice/Public Notice may be issued accordingly.

Yours faithfully,

(J.M. Kennedy)

Director (TRU)

Tel: 011-23092634

21 August 2010

IFRS, direct tax code set to make next fiscal challenging for CAs -Mr G. Ramaswamy, Vice-President, ICAI

Accounting professionals geared up for implementation of IFRS.

 

The financial year 2011-12 is going to be more vibrant, especially for the accounting professionals, with the implementation of Direct Taxes Code (DTC) and the convergence of Indian accounting standards with IFRS (International Financial Reporting Standards), according to Mr G. Ramaswamy, Vice-President of the Institute of Chartered Accountants of India (ICAI).

Speaking to presspersons on the sidelines of the inauguration of the national conference on 'Direct taxes and allied laws', organised by the Direct Taxes Committee of ICAI here on Friday, he said the next financial year will be a great year for the country.

The professionals will be geared up for the implementation part, and the corporates on the compliance part. This will lead to increase in the revenue collection also, he said. Stating that a lot of developments are taking place with regard to the implementation of IFRS, Mr Ramaswamy said that the ICAI is gearing up its members and industry towards the achievement of the committed date of April 1, 2011. The IFRS will be implemented in a phased manner from 2011-14.

"We are conducting national workshops and meetings throughout the country creating awareness, involving professionals and those who are interested in it. Special e-learning courses and certificate courses are available for chartered accountants," he said.

The ICAI also has mutual recognition arrangements with accounting bodies in England and Wales and Australia. "We are also in dialogue with Canada, Singapore, Malaysia and New Zealand institutes. We are coordinating with them," he said. On the Direct Taxes Code (DTC), he said that for the first time, a proposed legislation was open for debate throughout the country. Tax payers, academicians and chartered accountants have given their views. Stating that the final version will be tabled in Parliament, he said the deadline for DTC implementation is April 2011.

He said the Central Council of ICAI has proposed an amendment on the type of action to be taken in the case a firm is involved in cases of violation. "The Central Council has debated on that. We are proposing an amendment. So we are giving suggestions to the Government," he said.

NETWORKING

On the networking of CAs, he said today, 70 per cent of chartered accountants are small and medium practitioners. If the Chartered Accountants (Amendment) Bill 2010 is passed in Parliament, more number of CAs can come together and form an LLP (limited liability partnership) firm. Apart from CAs, these firms can include cost accountants, advocates, valuers, actuaries, and may be MBAs (finance).

END USE AUDIT

An LLP firm can give a host of service, he said, adding that LLPs will be one of the important mediums for the CA firms.

Mr Ramaswamy said that ICAI is already interacting with the Comptroller & Auditor General for end use audit.

Giving the example of National Rural Employment Scheme (NREGS), he said it is being implemented throughout the country through State Governments. So, there should be checks and balances.

"We have already made representation to the Comptroller & Auditor General that NREGS should be audited by the CAs. That will help small and medium practitioners also. It can be monitored throughout the country by CAs. With this, end user can be identified properly," he said.

Stating that the Comptroller & Auditor General is very positive on this, he said, "They have collected information about the CAs available throughout the country. We have given district-wise data. We are pursuing them to make it mandatory."

Dividend-stripping transactions, a sham? -T.C.A. RAMANUJAM


Mere receipt of dividend subsequent to purchase of units in a mutual fund cannot go to offset the cost of acquisition of the units.


Chief Justice Kapadia of the Supreme Court has delivered a remarkable judgment analysing the concept of tax avoidance in dividend-stripping transactions. The court examined the impact of various sections in the Income-Tax Act, 1961 in arriving at the taxable income in the Walfort case.

As per the facts of this case, Walfort Share and Stock Brokers P. Ltd purchased units of Chola Freedom Technology Mutual Fund on March 24, 2000. This was the record date for declaring dividend. The company became entitled to a dividend at Rs 4 per unit and the amount earned was Rs 1,82,12,862. The NAV (net asset value) stood at Rs 17.23 on this date. It fell to Rs 13.23 soon after declaration of the dividend. The company sold all the units on March 27, 2000. It received an incentive of Rs 23,76,778 for the transaction. In its income-tax return, the company claimed exemption of the dividend amount of Rs 1,82,12,862 under Section 10(33) of the I-T Act. It also claimed a set-off of Rs 2,09,44,793 as loss incurred on the sale of units.

The assessing officer (AO) disallowed this loss. He pointed out that this was a dividend stripping transaction and not a business transaction. It was entered into primarily for the purpose of tax avoidance. The loss was artificially created by a pre-designed set of transactions.

Return on investment?

Before the Supreme Court, the Revenue argued that the amount received by the company as dividend constituted a return on investment. It has to be adjusted against the cost of the purchase of the units in such an event, there will be no loss suffered by the company on subsequent redemption.

Alternatively, it was argued, the price of units included the price of dividend embedded there in. Dividend represented a price paid for the units and it is an expenditure incurred for obtaining exempt income which should be disallowed under Section 14A.

"Loss" is a commercial concept and will not take in "tax loss" created or contrived without suffering commercial loss. Section 94(7) is meant to curb tax avoidance involving "dividend stripping transactions".

The court had to decide whether "return on investment" or "cost recovery" would fall within the expression "expenditure incurred" in Section 14A. It had to reconcile the provisions of Section 14A with those of Section 94(7), which was inserted by Finance Act, 2001 w.e.f. April 1, 2002; Section 14A was inserted w.e.f. April 1, 1962.

Section 10(33) recognises receipt of tax-free dividends. This cannot be called "abuse of law".

Even assuming that the transaction was pre-planned, there is nothing to impeach the genuineness of the transaction.

The McDowell case has to read in conjunction with the Azadi case ( 263 ITR 706). A citizen is free to carry on business within the boundaries of the law. Mere tax planning without any motive to evade taxes through colourable devices is not frowned upon. However, after April 1, 2002, losses to the extent of dividend received by the company could be ignored by the department under Section 94(7) which curbs short-term losses.

The loss to be ignored would be only to the extent of dividend received and not the entire loss. Losses over and above the amount of dividend received would still be allowed. Parliament has not treated dividend-stripping transactions as sham or bogus.

If the Revenue's argument is accepted, it would mean that before April 1, 2002, the entire loss will be disallowed as genuine, but after this date only a part of it would be allowable under Section 94(7). This will not be a reasonable interpretation.

Different fields

Sections 14A and 94(7) operate in different fields. The former deals with disallowance of expenditure incurred in earning tax-free income, while the latter refers to disallowance of loss on the acquisition of an asset which situation is not there in cases falling under Section 14A. Section 94(7) applies to cases where the loss is more than the dividend. Section 14A does not deal with acquisition of an asset. Under Section 94(7), there is acquisition of an asset. Loss arises when sale takes place under Section 94(7). There is a conceptual difference between loss, expenditure, cost of acquisition, and so on, while interpreting the scheme of the Act.

A mere receipt of dividend subsequent to purchase of unit, on the basis of a person holding units at the time of declaration of dividend on the record date, cannot go to offset the cost of acquisition of the units.

Para 12 of the Accounting Standard 13 relied upon by the Revenue will have no application in cases where units are bought at the ruling NAV with a right to receive dividend as and when declared in future and did not carry any vested right to claim dividends which had already accrued prior to the purchase.

There can be no question of AS-13 coming to the aid of the department. The Supreme Court upheld the ruling of the Bombay High Court and dismissed the appeal of the Revenue.

(The author is a former Chief Commissioner of Income-Tax.)

19 August 2010

Indian IFRS — adoption or convergence? -DOLPHY D'SOUZA


The advantage of adopting full IFRS is that it would certainly help entities that are seeking foreign listing.


The Institute of Chartered Accountants of India (ICAI) issued Ind-AS 41, an exposure draft (ED) on the Indian equivalent of IFRS 1, First-time Adoption of IFRS. Ind-AS will be a separate body of accounting standards which may not always be the same as IFRS issued by the International Accounting Standards Board (IASB) (hereinafter referred to as "IFRS").

Thus, if an Indian parent has foreign subsidiaries, which are already using IFRS, the Indian parent will not be able to use those financial statements in its transition (as well as on an ongoing basis) to Ind-AS and will have to convert the already IFRS compliant subsidiary to Ind-AS.

Further, companies which are already IFRS compliant, for example, to comply with foreign listing requirements, will not be allowed to use these financial statements to claim compliance with Ind-AS. This will create considerable workload for global Indian companies.

Many entities around the world are able to make a dual statement of compliance on their financial statements, which is an unreserved statement that the financial statements are in accordance with IFRS and the standards notified in their local jurisdiction. This is only possible where there are no differences between IFRS and the standards notified locally.

The advantage of making a dual statement of compliance is that the financial statements can be used within India as well as in almost all major capital markets in the world which accept IFRS financial statements. If Indian companies fail to make dual statement of compliance, they may need to reconvert again from Ind-AS to IFRS, at the time of foreign listing.

The positives

Any Government would be challenged in making a decision as to whether to adopt full IFRS or to make certain deviations which are deemed necessary. The advantage of adopting full IFRS is that it would certainly help entities that are seeking foreign listing. Also, Indian entities that have several foreign subsidiaries which use IFRS would prefer to have the entire group on IFRS, rather than for different companies of the group to be on different national versions of IFRS.

However, such companies as a percentage of total companies in India may be small and hence the Government may not deem fit to impose full IFRS on all the companies in India for the sake of this relatively small advantage. Therefore, what kind of changes from IFRS should the Government consider when notifying Ind-AS? Certainly not the ones that are being contemplated, for example, the discount rate and the accounting for actuarial gains and losses with regard to measurement of pension obligation.

With regard to accounting for actuarial gains/losses, multiple options, including deferring actuarial gains/losses, are available under IFRS which entities in other countries are using. Indian entities should not be deprived of that benefit, as is evident from the relevant exposure draft issued by ICAI. It is interesting to note that Australia started off eliminating multiple options when it first notified the IFRS standards. However, it later fell back to allowing the full range of options under IFRS.

Overall, Ind-AS should not make any departures from the full IFRS standards unless they are required in the rarest of rare cases. This will ensure that we receive the full benefit of adopting full IFRS standards.

Unwarranted departure

So far it appears that the departures that are expected to be made (discount rate on long term employee benefits or accounting of actuarial gains/losses) are unwarranted.

As the standards are not yet notified, and as companies make strong representations, it is not clear at this stage what further exceptions would be made to the full IFRS standards. The Government will have to exercise judgment on what departures to make; this could be in the area of foreign exchange accounting, loan loss provisioning in the case of banks, completed contract accounting in the case of real estate companies, and so on.

There has to be a solid technical argument for making these exceptions, and a balance achieved between interest of various stakeholders, such as the company, investors, national interest, and so on.

More importantly, the accounting treatment should fairly represent the substance of the transaction. That, under no circumstances, should be compromised.

(The author is Partner & National IFRS Leader, Ernst & Young)

On markets and scams -D. MURALI

India's political and social structures have preserved entrepreneurs, if not exactly cut them loose, observes Raghav Bahl in Superpower? ( www.penguinbooksindia.com). Even as the state invested in big-ticket capital assets in the early decades after Independence, land continued to stay in private hands, he reasons in the chapter titled 'Entrepreneurs, consumers and English speakers'.

"India's sprawling rural economy has always been entirely 'capitalist' in its orientation. Even the urban economy allowed private enterprise to grow under a somewhat draconian regime of licences and approvals… The Bombay Stock Exchange (BSE) is among the oldest in Asia. Capital and credit have always been available, albeit for a 'price,' for private enterprise."

Harshad Mehta episode

Of interest to finance professionals is a section in the chapter, captioned 'the story of two stock markets,' opening with how Harshad Mehta, who, in his late thirties, 'pulled off a stock market scam in India which would have put Bernie Madoff to shame.' The year was 1992 and there was much excitement around a freshly minted, rapidly privatising economy, the author narrates.

"It was easy to spin get-rich-quick stories in an unregulated casino. For a man who had barely scraped through his accounting studies at college, Harshad Mehta was a deadly combination — a legendary crook and a master storyteller. He siphoned off a billion dollars from several Indian banks to rig the stock prices of ninety blue chips."

As some of you may recall, 'stocks doubled, trebled, quadrupled, and Mehta became the cult deity of wealth.' But his house of cards collapsed when the bubble burst. "He died in custody on the last day of 2001 as India's biggest defaulter, owing nearly $170 million to several banks. He also left behind an unsolved mystery of 2.7 million missing shares and seventy-two cases of conspiracy, cheating, and fraud."

Shock therapy

Looking back, Bahl says that the Mehta scam was a shock therapy for India's stock markets. Although over a century old, the BSE — set up under a banyan tree in 1875 — was little more than a privileged brokers' club in the early 1990s, he reminisces.

"It traded for barely a couple of hours every day on the outcry method. Shares were held in physical form, and trades were squared off once in fifteen days. Upcountry brokers were forced to transact on a rickety phone network. Companies could cancel share transfers on the flimsiest of excuses, like signatures not matching or papers lost in transit." As a result, the system was prone to delay, abuse, price fixing, insider trading and frequent breakdowns, informs the author.

Jolted by the scam, the government set up a tough securities regulator, but wealthy brokers continued to defy it, one learns. The breakthrough came in the form of NSE (National Stock Exchange), a digitally savvy exchange with equity put up by government financial institutions. The 'game changer,' which began trading in 1994, allowed the same equity instrument to be traded on both exchanges in the same city and across similar trading hours, and banked on dematerialised shares and electronic depositories.

"Over ten thousand terminals in over 400 cities gave instant trading access to members. In eleven months flat, the new exchange logged up higher trading volumes than its 120-year-old competitor. The transaction settlement period dropped from fifteen to two days. To survive, BSE had to set up its own electronic system." Bahl is proud that today the Indian stock market is among the largest in the world, next only to NYSE in terms of the number of shares listed, deals transacted and the size of retail investor participation.

Stock exchanges in China

What has been the story in China, where stock exchanges took birth around the same time that we were reinventing ours? The aim of the Shanghai Stock Exchange (SHSE) set up in December 1990, and the Shenzen Stock Exchange (SZSE), set up in April 1991, was to sell shares of State Owned Enterprises (SOEs), but 'an inexperienced China opted for a very complex system,' recounts the author.

Sample this, from his description: The same company could not list on both exchanges — it had to choose one. Five different types of shares could be issued: A-shares (sold in local Chinese currency to local individuals); B-shares (sold in either US or Hong Kong dollars to foreign investors); C-shares (issued to Chinese state institutions or departments, but tradable only 'over the counter' in institution-to-institution sales, rather than on the main exchanges); H-shares (equity issued by mainland companies on the Hong Kong stock exchange); N-shares (issued on the NYSE); and 'a sixth — and the strangest — category was 'non-tradable' shares held by the government or its agencies.'

Silos in markets

So, the majority of shares in early listed companies were not floated, with only the shares sold to the general public being tradable, and thus making for very thin volumes and huge price volatility, explains Bahl. Since China wanted to keep a tight control on its currency and foreign capital flows, it was forced to create these silos to isolate each currency, geography and class of investor, he notes.

"The early years were wracked by a dizzy gyration in stock prices… Contributing to the messy situation was a 'quota system' for selecting SOEs to float their shares; each province was given a fixed quota of companies they could bring to the market." What suffered was the quality of paper floated as an effect of 'the shadow of politics' or 'the unseen hand of political patronage,' which explains the non-failure of any initial float, and non-delisting of any publicly listed company.

'Grey' transactions

Such a fragmented structure created frictions at each margin, besides creating a playground for 'grey' transactions that illegally moved capital across prohibited boundaries to profit from price differences, finds Bahl. "A company with A, B and H shares today has three wholly different valuations; often, A-shares have traded at three times the value of B-shares or H-shares, puzzling investors."

He points out that while common sense dictates that B-shares should command a premium, as foreign investors have superior access to information and analytical skills, that is not the case, perhaps due to 'a speculative frenzy in China's domestic stock market that has taken A-shares to 'bubble' levels.'

The book cites Morgan Stanley's statistics that a third of reported corporate earnings in China in 2007 came from speculative gains in stock markets.

"For instance, the apparel company Youngor had earned nearly 99 per cent of its profits from subscribing to shares of China Life, Bank of Ningbo and Citic Securities. Although some norms have been tightened, banks in China have lent freely at very low rates to help companies build up their investment portfolios."

Five more crises

To those who dismiss the Indian bourses as unhealthy, post Harshad Mehta's scam in the early 1990s, it may come as a surprise that Indian markets have weathered five crises since then, as Bahl chronicles.

In 1995, the BSE was closed for three days after payment problems on a company which had crashed, he begins. "In 1997, a mutual fund closed shop after defrauding investors; in 1998, the president of the BSE was sacked for allowing prices of three companies to be manipulated; in 2001, another price-rigging scandal by another ambitious broker was busted; and finally, in 2005, thousands of fake accounts were unearthed, that were getting illegal allotments of newly floated shares under the quota reserved for individual investors." Stating that wherever there is a stock market, there will be a scam, Bahl avers that since 2005 no major scandal has erupted in India's stock markets.

What is the scene in China? It is still in the throes of a learning curve, grappling with frequent scams in its still maturing stock markets, he feels. An example cited in the book the November 2009 arrest of 39-year-old Huang Guangyu, the chairman of Gome Electrical Appliances, the country's biggest electronics retailer.

"Forbes had listed Huang as China's second wealthiest individual, estimating his worth at $2.7 billion. Caijing reported that Huang was detained for an alleged stock manipulation case involving a company controlled by his elder brother. He was eventually fined $120 million and handed a fourteen-year jail term…"

Engaging comparison of two countries, in crisply-written chapters.

 

Vedanta's clever siddhanta -S. MURLIDHARAN

By timing its action before the new takeover code is implemented, Vedanta has side-stepped two potentially irksome issues — 100 per cent takeover and pricing parity for public shareholders.

 

The Achuthan panel report recommendations could perhaps have been at the back of the mind of the reclusive Anil Agarwal, the promoter of Vedanta Resources Plc, a company listed in the London Stock Exchange and which controls the Indian metals major Sterlite Industries Ltd when he decided to acquire a controlling interest in Cairn India Ltd from Cairn Energy UK with jet speed.

A staggering $9.6 billion would be forked out by Vedanta to Cairn Energy reportedly from the combined coffers of Vedanta and Sesa Goa, another group company of Vedanta in India which it acquired a few years ago. For all one knows, Vedanta is scouting for funds in the foreign markets, including in London, where takeover financing is otherwise granted generously but the environmental issues that have come to baulk some of Vedanta's plans in Orissa seem to have come in the way of raising the moolah.

Be that as it may, what Vedanta seems to be keen on is to rush before the new takeover code, assiduously worked out by the Achuthan panel, is brought into force to its detriment. Incidentally, the panel recommendations are still being mulled by the public whose reactions would be considered by SEBI (Securities and Exchange Board of India) before implementing them.

Foreign companies have acquired Indian companies in the past but this would be the first instance of a foreign company promoted by an Indian coveting an Indian company by, curiously in the process, wresting control from an unadulterated foreign company.

Successfully sidestepped

The panel has suggested two seminal changes that could strike at the roots of the takeover game in India. First, is the public offer requirement to buy out all the remaining shares from the public resulting in a 100 per cent buyout as opposed to the extant norm that requires buying out of a further 20 per cent of the voting capital of the company this time around from the public after having purchased at least 25 per cent from the promoter. Back of the envelope calculations show that the cost of acquisition of $9.6 billion could double to roughly $20 billion, making perhaps the acquisition not only the largest ever in India but also more disquietingly for Vedanta a pyrrhic victory. Vedanta obviously would not like to score such a pyrrhic victory.

Vedanta would also have reckoned with the grim prospect of having to pay Rs 405 per share to the Indian public shareholders, the price that it has agreed to pay to Cairns Energy UK if the new takeover code as recommended by the panel is implemented.

For, the panel has rightly put its foot down and recommended abolition of room for chicanery that consists in camouflaging 20 per cent of the negotiated price with the promoter (Cairns Energy UK) as non-compete fee which has nothing whatsoever to do with cost of acquisition of controlling interest.

The takeover history is replete with instances of the two sides in a negotiated deal playing footsie to rob the small shareholder of his rightful due. Now Vedanta too would profit from this chicanery — Rs 405 per share for Cairn Energy UK but only Rs 355 per share to the Indian public shareholders.

That Vedanta has not gone the whole hog — it could have pared down the price payable to the public by about Rs 80 — is as much a small mercy as it is a reflection of cold calculations; the public might lose interest in the public offer.

Be that as it may, the point is through its timely action, Vedanta has side-stepped two potentially irksome and burdensome issues — 100 per cent takeover and a parity of pricing for public shareholders. Vedanta obviously does not consider it prudent to assume a huge debt burden which would become inevitable if a company is to be acquired lock, stock and barrel. Furthermore, it knows pretty well that it has nothing to gain by making Cairn India a closely-held company.

Daiichi Sankyo walked into the space vacated by the Singh brothers in Ranbaxy. In other words, the existing promoters were asked to ship out completely. Their entire 34 per cent holdings were acquired.

On the contrary, Vedanta has agreed to allow Cairn Energy UK to have a toehold in Cairn India Ltd by allowing it to retain a minimum of 10.6 per cent stake. One wonders why. Is this a huge display of naiveté?

In any case, this flies in the face of non-compete fee and indeed in a way gives a lie to such a claim. It is indeed odd to find quarter being given to the one who has been paid a non-compete fee. Non-compete fee and continued interest in the business are incompatible phenomena.

That Cairn Energy would continue to stay invested in Cairn India belies its claim of having received non-compete fee from Vedanta and proves that it was only making life that much easier for the acquirer by playing footsie with it.

Apart from the chicanery involved in camouflaging a good chunk of the negotiated price as toward non-compete fee, staying put in an acquirer's company albeit in a minor capacity gives the outgoing promoter enough power to constantly breathe down the neck of the acquirer when his purported intention is to break free of him.

People in the know have all along known that non-compete fee in the context of takeover is a pure hogwash but one is at a loss to find a savvy businessman exposing himself to the potential danger of being constantly snapped at the heels by the one who has sold out. Even if the claim of non-compete agreement were to be believed, it is a tad ironical that the acquirer would not brook competition from the seller but would stoically put up with his intrusive presence inside the company.

(The author is a Delhi-based chartered accountant.)

13 August 2010

Availability of Physical Application Forms for Chartered Accountants November-2010 Examinations

Availability of Physical Application Forms for
Chartered Accountants November-2010 Examinations
 
          Due to unavoidable difficulties in dispatching, there have been instances of shortage at certain decentralized offices and / or branches of ICAI in the availability of the physical application forms for the Chartered Accountants November-2010 Examinations.
 
The students of ICAI are hereby informed that every possible efforts is being taken to make the application forms available at all its branches and decentralized offices from 16th August, 2010 onwards without any shortage.
 
          Meanwhile, the students may also fill in the examination forms online at http://icaiexam.icai.org .
 
          Inconvenience caused to the students is deeply regretted. We assure you our best services in future.
 
 
Examination Department
 

10 August 2010

CBEC Clarification on ST on Commission


Circular No.126/08/2010 - ST

F.No.332/13/2010-TRU

Government of India

Ministry of Finance

Department of Revenue

Tax Research Unit

North Block, New Delhi

10th August 2010

 

To

 

Chief Commissioners of Central Excise and Service Tax (All),

Director General (Service Tax),

Director General (Central Excise Intelligence),        

Director General (Audit),

Commissioners of Service Tax (All),

Commissioners of Central Excise and Service Tax (All).

 

Madam/Sir,

 

           

            Subject: Service tax on commission received by Primary Dealers dealing in Government Securities – regarding.

 

           

 

A representation has been received seeking clarification whether service tax is leviable on the underwriting commission received by the Primary Dealers for the auction of Government Securities.

 

2.         The matter has been examined.  Underwriting service is taxable by virtue of section 65 (105) (z) of the Finance Act, 1994. In the definition of taxable service, two technical terms are mentioned, namely 'underwriting' and 'underwriter'. The term 'underwriting' [section 65 (117) of the Finance Act, 1994] has the meaning assigned to it in clause (g) of rule 2 of the Securities and Exchange Board of India (Underwriters) Rules, 1993, which reads as follows:

 

"underwriting means an agreement with or without conditions to subscribe to the securities of a body corporate when the existing shareholders of such body corporate or the public do not subscribe to the securities offered to them." 

 

3.        The term "underwriter" as in section 65(116) of the Finance Act, 1994, has been borrowed from rule 2 (f) of the Securities and Exchange Board of India (Underwriters) Rules, 1993, which reads as follows:

                                                                                                                                               

"underwriter means a person who engages in the business of underwriting of an issue of securities of a body corporate."

 

It is thus clear that under the above definitions 'underwriter' or 'underwriting' is about dealing in securities of a body corporate.

 

4.        The related issue requiring resolution is whether dealing in government securities amounts to dealing in securities of a body corporate, particularly since government securities are issued by the Reserve bank of India, which is a 'body corporate' in terms of section 3 (2) of the RBI Act, 1934. 

 

5.      Government securities are sovereign securities having zero default risk. Reserve Bank of India only manages the issue and also auction of Government Securities on behalf of the Government of India.  In effect, Primary Dealers registered with the RBI (as opposed to registration with the Securities Exchange Board of India) deal in Government Securities, issued by the RBI on behalf of the Government of India, as a part of the central Government's market borrowing program. The general practice is that the RBI invites bids from the Primary Dealers, who in their bids indicate the amount to be underwritten and the underwriting fee expected by them. RBI examines these bids and decides the amount to be underwritten and underwriting fee to be paid to a Primary Dealer. Underwriting Fee is also known as Underwriting Commission in common parlance. Thus the conclusion drawn is that government securities are not securities of a body corporate.

 

6.       As the service tax law stands today, service tax liability does not arise on Underwriting Fee or Underwriting Commission received by the Primary Dealers during the course of the dealing in Government Securities.

 

7.     Trade Notice/Public Notice may be issued to the field formations accordingly.

 

8.     Please acknowledge the receipt of this circular. Hindi version follows.

(J. M. Kennedy)

Director, TRU

                                                                                                                             Tel: 011-23092634


--
Best Wishes

CA. V.M.V.SUBBA RAO
Chartered Accountant
Door No.24-2-1885,
I Floor, Flat No.5,
Siddivinayaka Residency, I Cross,
Central Avenue, MSR Nagar,
Magunta Layout,
Nellore-524 003
Andhra Pradesh
India
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09 August 2010

Analysis on CA PCC Results-May 2010

Analysis on CA PCC /PE II / IPCC Results of May,2010- see attachment

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Best Wishes

CA. V.M.V.SUBBA RAO
Chartered Accountant
Door No.24-2-1885,
I Floor, Flat No.5,
Siddivinayaka Residency, I Cross,
Central Avenue, MSR Nagar,
Magunta Layout,
Nellore-524 003
Andhra Pradesh
India
Mobile:+91 - 0 9390221100
           +91 - 0 9440278412
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05 August 2010

Instructions on Lower TDS-TCS

Issue of Certificate of lower collection of income tax at source u/s 206C(9) - regarding.
21 July 10

INSTRUCTION NO. 04/2010, Dated: July 21, 2010

Issue of Certificate of lower collection of income tax at source u/s 206C(9) - regarding.

I am directed to state that instruction No.8/2006 dated 13.10.2006 was issued by the Board making it mandatory to get prior administrative approval of Additional Commissioner of Income Tax/Joint Commissioner of Income Tax before issue of any certificate of lower deduction of tax at source u/s 197 of the Income Tax Act, 1961. Further, instruction No.7/2009 dated 23.12.2009 was issued communicating prior administrative approval of the Commissioner of Income Tax (TDS) in the cases where the cumulative amount of tax foregone by non-deduction/lesser rate of deduction of tax arising out of certificate u/s 197 during the financial year for a particular assessee exceeds Rupees Fifty lakh in major stations and Rupees Ten lakh for other stations.

2. For effective monitoring and control of tax foregone through certificate of lower tax collection at source (TCS), I am directed to communicate that for issue of certificate of lower collection for tax at source u/s 206C(9), prior administrative approval of Additional Commissioner of Income Tax/Joint Commissioner of Income Tax shall be obtained in each case. Further, prior administrative approval of Commissioner of Income Tax (TDS) shall be taken where cumulative amount of tax foregone by lesser rate of tax collection at source during the financial year for a particular buyer or licensee or lessee; as the case may be; exceeds Rupees Fifty lakh in Delhi, Mumbai Chennai, Kolkata, Bangaluru, Hyderabad, Ahmedabad and Pune Stations and Rupees Ten lakh for other stations. Once the Addl. CIT/JCIT or the CIT(TDS), as the case may be, gives administrative approval of the above, a copy of it has to be endorsed to the jurisdictional CIT also.

3. In relation to TCS matters of a buyer or licensee or lessee falling within the jurisdiction of Directorate of Income Tax (International Taxation), the powers indicated above shall be vested in the officers concerned i.e. Range Additional DIT/JDIT (International Taxation) or Director of Income Tax (International Taxation), as the case may be.

4. "Tax foregone" in case of a buyer or licensee or lessee; as the case may be; should ordinarily mean difference between taxes computed at the relevant rate of collection stipulated and the tax computed on the basis of rate at which the certificate u/s 206C(9) is sought to be issued.

5. The content of this instruction may be brought to the notice of all officers working in your charge for strict compliance.

6. Hindi version will follow.

F.No.275/23/2007-IT(B)

(Ajay Kumar)
Director (Budget)



--
Best Wishes

CA. V.M.V.SUBBA RAO
Chartered Accountant
Door No.24-2-1885,
I Floor, Flat No.5,
Siddivinayaka Residency, I Cross,
Central Avenue, MSR Nagar,
Magunta Layout,
Nellore-524 003
Andhra Pradesh
India
Mobile:+91 - 0 9390221100
           +91 - 0 9440278412
e-Mail: vmvsr@rediffmail.com
           vmvsr@yahoo.co.uk
http://pdicai.org/MyPage/203038.aspx

03 August 2010

Request for Proposal for Empanelment of Chartered Accountant Firms [1 Attachment]

Dear All,
Find attached Request for Proposal for Empanelment of Chartered Accountant Firms for Implementation of Accrual Based Double Entry Accounting System in 159 Municipalities of Gujarat.
City Managers' Association Gujarat on behalf of GMFB invites RFP from the eligible firm to carry out the work of Accrual Based Double Entry Accounting System in 159 Municipalities of Gujarat. The category wise / District wise list of municipalities appended herewith at Appendix - A. The allocation of municipalities will be done on the basis of the location of CA Firms. (Annexure – 8). You are therefore, requested to submit RFP offer. Your offer must be written in English. All pages of your offer must be properly numbered and initialed by you or your authorized officer. Along with the RFP the Earnest Money Deposit amounting to Rs.25,000/- ( Rupees Twenty Five Thousands only) shall have to be paid in form of Demand Draft of any Schedule Bank except Co-operative Bank. DD shall be in favour of "City Managers' Association Gujarat Ahmedabad."
1
Date from which Tender Document available
Date: 03/08/2010
2
Last Date of Submission
Date: 31/08/2010
3
Date of opening of offers RFP (Technical Bids)
Date: 01/09/2010

__._,_.___

Attachment(s) from Ashwin Nagar

1 of 1 File(s)

02 August 2010

Processing of Returns-AY 2009-10- Instructions

Processing of returns of Assessment Year 2009-10 - Steps to clear backlog

 

 

 

Instruction No. 5/2010 [F.No.225/25/2010-ITA-II], dated 21-7-2010

 

 

The issue of processing of returns for Asst. year 2009-10 and giving credit for TDS has been considered by the Board. In order to clear the backlog of returns, the following decisions have been taken:

 

  (i) In all the returns filed in ITR-1 and ITR-2, for the Asst. Year 2009-10, where the aggregate TDS claim does not exceed Rs. Three lakh (3 lacs) and where the refund computed does not exceed Rs. 25,000; the TDS claim of the tax payer shall be accepted at the time of processing of the return.

 

(ii) In all the returns filed in forms other than ITR-1 and ITR -2, for the Asst. Year 2009-10, where the aggregate TDS claim does not exceed Rs. Three lakh (3 lacs) and the refund computed does not exceed Rs. 25,000 and there is 10% matching of TDS amount claimed, the TDS claim shall be accepted at the time of processing of the return.

 

(iii) In all remaining cases, TDS credit shall be given after due verification .

 



--
Best Wishes

CA. V.M.V.SUBBA RAO
Chartered Accountant
Door No.24-2-1885,
I Floor, Flat No.5,
Siddivinayaka Residency, I Cross,
Central Avenue, MSR Nagar,
Magunta Layout,
Nellore-524 003
Andhra Pradesh
India
Mobile:+91 - 0 9390221100
           +91 - 0 9440278412
e-Mail: vmvsr@rediffmail.com
           vmvsr@yahoo.co.uk
http://pdicai.org/MyPage/203038.aspx

01 August 2010

Due Date Extended

Due date for filing of income tax return extended till 04-Aug-2010
--------------------------------------------------------------------------------------------------------------------------------
The Central Board of Direct Taxes (CBDT) has extended the due date of filing of income tax returns to 04-August-2010 for taxpayers for whom the due date ends today, which is 31-July-2010. All paper returns or e-returns filed on or before 04-August-2010 will be considered as filed within the due date.

Press Release

The Central Board of Direct Taxes (CBDT) has decided to

extend the due date of filing of income tax returns to 4

th August

2010 for taxpayers for whom the due date ends today, which is

31

st July 2010. All paper returns or e-returns filed on or before 4th

August 2010 will be considered as filed within the due date.

The decision was taken in view of some technical snags in

the e-filing computer system, and inclement weather at various

locations, due to which taxpayers have reported difficulties in filing or uploading income tax returns.



--
Best Wishes

CA. V.M.V.SUBBA RAO
Chartered Accountant
Door No.24-2-1885,
I Floor, Flat No.5,
Siddivinayaka Residency, I Cross,
Central Avenue, MSR Nagar,
Magunta Layout,
Nellore-524 003
Andhra Pradesh
India
Mobile:+91 - 0 9390221100
           +91 - 0 9440278412
e-Mail: vmvsr@rediffmail.com
           vmvsr@yahoo.co.uk
http://pdicai.org/MyPage/203038.aspx

27 July 2010

IFRS: An idea whose time is yet to come

M. RAMESH

It is common sense that for any reform to succeed, the call for it should come from the market. The need should precede the deed. Looked at from this angle, it does appear that the International Financial Reporting Standards, or IFRS, which some 1,500 Indian companies should begin to follow from April 1, 2011, is an idea whose time has not yet come.

It does appear as though Corporate India is being hustled into adopting accounting standards that it neither knows nor needs.

The ushering in of IFRS, at least in India, is founded on a heap of myths: That all the countries in the world are following IFRS and India should not isolate itself. That IFRS will facilitate capital inflows. That it is transparent and, hence, investor-friendly.

Flawed arguments

But if you look at these closely, there are serious flaws in each line of argument. For instance, that over a hundred countries (including China and Pakistan) are on board is of little relevance.

The economic world cleaves into three major blocks — the US, the EU and Japan. Two of the three — the US and Japan — have not adopted IFRS. The US has said it would get on board only in 2015 and Japan is not sure if it wants to. For the same reason, the argument about more capital inflows does not hold water. First of all, it is a moot point whether the kind of ephemeral capital that flows into the stock markets, creating headaches for the monetary authorities, is desirable or not. More fundamentally, there is no evidence of anybody — either an FII or an FDI investor — having said, "the potential investee company's accounts are not IFRS-compliant, so I do not want to put my money in it."

Nor does there seem to be any call from the domestic market. Indian companies never said they were handicapped in raising funds because their accounts are drawn up according to the principles of Indian GAAP.

On the contrary, funds seem to be flowing in — only a couple of days ago, the Economic Advisory Council to the Prime Minister said that India will attract $73 billion of capital in the current year, which is $53 billion more than what the country got last year.

Notably, the Chairman of the EAC, Dr C. Rangarajan, feels that $30 billion of the inflows will be foreign direct investment. Clearly, nobody is waiting for IFRS to bring money into India. The transparency argument is equally porous. There is no evidence that disclosures have either prevented fraud or helped investors make informed decisions.

On the contrary, we Indians are conservative by nature and most accountants frown at the fair value and income recognition provisions. It is never wise to count your chickens before they are hatched and, if you are a construction company (for instance), it is prudent to book in your incomes only after the contract is over and payment received.

Lot of work left

Even if we have to 'converge' (which should be understood in contrast with 'adopt', says the Government), there is still a lot of work to do, such as bringing the tax and company law regimes in alignment with the accounting standards. The absence of such alignment, especially on the tax front, is a major source of disappointment to Indian companies today.

In a recent interview to this correspondent, the Union Minister for Corporate Affairs, Mr Salman Khurshid, cautioned that we should not get trapped into some "spurious idea of sovereignty". More than not being an isolationist, India should be seen as a leading contributor in the evolution of ideas and, he said, even Japan consults us (on IFRS).

Just as it is important not to get trapped into any spurious idea of sovereignty, it is also necessary not to turn into self-congratulating mode in the name of 'leadership'. In the case of IFRS, leading is bleeding, and if the Companies Bill can wait for a decade for finest-tuning, so can IFRS — at least until the US and Japan do it first.

26 July 2010

CII- 2010-11 - 711

NOTIFICATION NO. 59/2010, DATED July 21, 2010

SECTION 48, EXPLANATION (V) OF THE INCOME-TAX ACT, 1961 – NOTIFIED COST INFLATION INDEX FOR FINANCIAL YEAR 2010-2011

In exercise of the powers conferred by clause (v) of the Explanation to section 48 of the Income-tax Act, 1961 (43 of 1961), the Central Government, hereby specifies the Cost Inflation Index for the Financial Year commencing from the 1st day of April, 2010 and ending on the 31st day of March, 2011 and for that purpose further makes the following amendment in the notification of the Government of India in the Ministry of Finance (Department of Revenue), Central Board of Direct Taxes number S.O.2292(E), dated the 9th September, 2009, namely:-

In the said notification, in the Table, after serial number 29 and the entries relating, thereto, the following serial number and entries shall be inserted, namely :—

____________________________________________________________

"30 2010-11 711"

____________________________________________________________

FULL CHART OF COST INFLATION INDEX OF 1981-2009 IS GIVEN BELOW

COST INFLATION INDEX
Financial YearCost Inflation IndexFinancial YearCost Inflation Index
1981-19821001996-1997305
1982-19831091997-1998331
1983-19841161998-1999351
1984-19851251999-2000389
1985-19861332000-2001406
1986-19871402001-2002426
1987-19881502002-2003447
1988-19891612003-2004463
1989-19901722004-2005480
1990-19911822005-2006497
1991-19921992006-2007519
1992-19932232007-2008551
1993-19942442008-2009582
1994-19952592009-2010632
1995-19962812010-2011711

24 July 2010

Availability of Cenvat Credit on inputs used in the manufacture of capital goods

Availability of Cenvat Credit on inputs used in the manufacture of capital goods

Instruction [F.No.267/11/2010-CX8], dated 8-7-2010

I am directed to invite your attention to the landmark judgement of the CESTAT Larger Bench in the case of Vandana Global Ltd. V/s CCE, Raipur [2010-TIOL-624-CESTAT-DEL-LB] delivered on 30.04.10, on admissibility of credit on capital goods and inputs and to state that the Tribunal has ruled that 'capital goods' defined in the CENVAT Credit Rules, in the context of providing credit of duty paid, have to be excisable goods. Whether a particular plant or structure embedded to earth can be considered as excisable goods or not has to be determined in the light of settled decisions of Supreme Court on the issue. The Tribunal has further ruled that goods like cement and steel items used for laying 'foundation' and for building 'supporting structures' cannot be treated as either inputs for capital goods or as inputs in relation to the final products and therefore, no credit of duty paid on the same can be allowed under the CENVAT Credit Rules. It has also been stated by Tribunal that amendment to Explanation 2 to Rule 2(k) of CENVAT Credit Rules, 2004 inserted vide Notification No. 16/2009-CE (NT) dated 07.07.09, is clarificatory in nature and has retrospective effect.

2. Attention is also drawn to the Tribunal's judgement in the case of Vikram Cement V/s CCE, Indore [2009(242)ELT545(Tri-Del)], where the Tribunal held that credit on welding electrodes used for repair and maintenance, is not available as input. It may also be noted that in the case of Vikram Cements V/s CCE, Indore [2005(187)ELT145(SC)], it has been conclusively held by the Apex Court that the definition of capital goods is not inclusive and only the items covered under the definition and used in the factory of the manufacturer can be treated as capital goods.

3. It thus follows from the above judgements that credit on capital goods is available only on items, which are excisable goods covered under the definition of 'capital goods' under CENVAT Credit Rules, 2004 and used in the factory of the manufacturer. As regards 'inputs', they have to be covered under the definition of 'input' under the CENVAT Credit Rules, 2004 and used in or integrally connected with the process of actual manufacture of the final product for admissibility of cenvat credit. The credit on inputs used in the manufacture of capital goods, which are further used in the factory of the manufacturer is also available, except for items like cement, angles, channels, CTD or TMT bars and other items used for construction of factory shed, building or laying of foundation or making of structures for support of capital goods. Further, credit shall also not be admissible on inputs used for repair and maintenance of capital goods.

4. In view of above stated position, necessary action may be taken to safeguard revenue immediately. Pending cases on the issue may also be taken up immediately for finalisation.

5. Receipt of this instruction may kindly be acknowledged.

150 years of I-T law

T.N. PANDEY


Substantial changes were made to the country's tax structure after Prof. Kaldor's report in 1955.


On July 24, 2010, the income-tax legislation in India will be completing 150 years. This is a big milestone in the history of I-T Department. Income taxation in India has been in existence since ancient times. There are references to it in Manusmriti. Manu, the great law giver, said that taxes should be levied according to ' Sastras', that is, these should be just, fair and not excessive. He advocated that these should be collected in the manner the bee takes honey from the flowers. Kalidas expressed the view that the collection of taxes should be in the way Sun draws moisture from the Earth to give it back a thousand-fold.

Kautilya's Arthsastra contains detailed discussion about taxation and its methods. However, such observations seem outdated now. There was a time under the prime-ministership of Indira Gandhi when the maximum rate of tax was 97.5 per cent without taking into account wealth tax, gift tax, and so on.

Taxation by legislation

Taxation by legislation was initiated in 1860 during the British Rule to meet the financial needs consequent to the 1857 mutiny. It lasted only for five years and yielded just Rs 1.50 crore . This law was followed by 'licence tax' and 'certificate tax'.

Intermittently, other tax levies were also imposed. The 'certificate tax' levied in 1869 was abolished in 1873 but was revived because of the great famine in the country. Raising revenue through land cess, etc., continued before the Income-Tax Act, 1886 was passed.

This remained almost unaltered till after the outbreak of World War I, and laid the foundation for the next full-fledged improved Income-Tax Act of 1918, which was operative till 1922.

Thereafter the following pieces of legislation were passed: Income-Tax Act, 1922; Income-tax Amendment Act, 1939; and Income-Tax Act, 1961, which is in force at present.

In between legislation to assess excess profits, business profits, the Taxation of Income (Investigation Commission) Act 1947 (to tax evaded incomes) and few other laws were passed to deal with specific situations.

Broader coverage

Substantial changes were made to India's tax structure after Prof. Kaldor's report in 1955. Three new taxes, namely, the wealth tax, expenditure tax and gift tax (Estate duty was already in place since 1953), were introduced during 1957-58 under the integrated system of taxation advocated by Prof. Kaldor. These, barring the Wealth Tax Act, were given up later.

One major problem the tax administration faced was the extensive prevalence of the parallel economy.

Many commissions and committees were appointed to check black money. Many Voluntary Disclosure Schemes (around 15) were floated, but all of them turned out to be failures.

The tax collections in the country are buoyant because of the increase in GDP, moderate tax rates, controls via improved technologies, and so on. The total income tax collections expected in the current year are nearly Rs 4,25,000 crore. However, there are still some problematic and grey areas concerning income taxation, and they are as follows:

Need to widen the tax base, which is currently only 3 per cent of total population;

No hard measures have been taken to tackle rampant tax evasion, including money stacked in foreign banks;

A simple, efficient, stable and revenue-generating tax law is still not in place;

The exercise to reform the direct taxes law began in 1996, but is yet to be completed.

The officers of the I-T Department have not been given the due status. In a cadre of more than 6000 Gazetted Officers, not even one holds the post of Secretary to Government of India — not even the CBDT Chairman. On the contrary, the powers of the CBDT are proposed to be curtailed under the proposed Direct Taxes Code.

Lack of adequate infrastructure

There are many other problems which need to be attended to. The officials in the I-T Department are an efficient and committed lot, keen to show results. Their potential needs to be tapped better, by giving them the recognition they deserve and through well-drafted tax laws.

(The author is a former chairman of CBDT.)

22 July 2010

Cost Inflation Index for 2010-11 is 711

Section 48, Explanation (v) of the Income-tax Act, 1961 - Capital gains - Computation of - Notified Cost Inflation Index for financial year 2009-10 - Amendment in Notification No. S.O. 2292(E), dated 9-9-2009

Notification No. 59/2010 [F.No.142/11/2010-TPL], dated 21-7-2010

In exercise of the powers conferred by clause (v) of the Explanation to section 48 of the Income-tax Act, 1961 (43 of 1961), the Central Government hereby makes the following amendment in the notification of the Government of India in the Ministry of Finance (Department of Revenue), Central Board of Direct Taxes number S.O. 2292(E), dated the 9th September, 2009, namely:-

In the said notification, in the Table, after serial number 29 and the entries relating thereto, the following serial number and entries shall be inserted, namely :-

"30 2010-2011 711"

__._,_.___

If brokerage offered to tax, the principal debt qualifies as a “bad debt” u/s 36(1)(vii) r.w.s. 36(2)

DCIT vs. Shreyas S. Morakhia (ITAT Mumbai Special Bench)


If brokerage offered to tax, the principal debt qualifies as a "bad debt" u/s 36(1)(vii) r.w.s. 36(2)

 

The assessee, a broker, claimed deduction for bad debts in respect of shares purchased by him for his clients. The AO rejected the claim though the CIT (A) upheld it. On appeal by the Revenue, the matter was referred to the Special Bench. Before the Special Bench, the department argued that u/s 36(2), no deduction on account of bad debt can be allowed unless "such debt or part thereof has been taken into account in computing the income of the assessee". It was argued that as the assessee had offered only the brokerage income to tax but not the value of shares purchased on behalf of clients, the latter could not be allowed as a bad debt u/s 36(1)(vii). HELD rejecting the claim of the department:

 

(i) In Veerabhadra Rao 155 ITR 152 the Supreme Court held in the context of a loan that if the interest is offered to tax, the loan has been "taken into account in computing the income of the assessee" and qualifies for deduction u/s 36(1)(vii). The effect of the judgement is that in order to satisfy the condition stipulated in s. 36(2)(i), it is not necessary that the entire amount of debt has to be taken into account in computing the income of the assessee and it will be sufficient even if part of such debt is taken into account in computing the income of the assessee. This principle applies to a share broker. The amount receivable on account of brokerage is a part of debt receivable by the share broker from his client against purchase of shares and once such brokerage is credited to the P&L account and taken into account in computing his income, the condition stipulated in s. 36(2)(i) gets satisfied. Whether the gross amount is reflected in the credit side of the P&L A/c or only the net amount is finally reflected as profit after deducting the corresponding expenses or only the net amount of brokerage received by the share broker is reflected in the credit side of the P&L account makes no difference because the ultimate effect is the same;

 

(ii) The argument that the loss was suffered owing to breach of SEBI Guidelines framed to safeguard the interest of brokers in respect of amount receivable from the clients against purchase of shares is irrelevant. If the broker chooses not to follow the guidelines, it is a decision taken by him as a businessman having regard to his business relations with the client. The loss cannot be equated to expenditure incurred by the assessee for any purpose which is an offence or which is prohibited by law. (CIT vs. Pranlal Kesurdas 49 ITR 931 (Bom) followed where bad debts on account of forbidden vayada transactions were held allowable);

 

(iii) The contention of the Revenue that the sale value of the shares remaining with the assessee should be adjusted against the amount receivable from the client so as to arrive at the actual amount of bad debt should be raised, if permissible, before the Division Bench.

 

DB (India) Securities 318 ITR 26 (Del) & Bonanza Portfolio 320 ITR 178 (Del) followed. India Infoline Securities 25 SOT 123 (Mum), B.N. Khandelwal 101 TTJ 717 & Mahesh J. Patel 109 ITD 35 (TM) overruled.

The above important judgement is available for download at itatonline.org.

Empanelment of Concurrent Auditors

Empanelment of Concurrent Auditors / Revenue Auditors for Bank of Maharashtra. BANK OF MAHARASHTRA invites applications from practicing firm...