IndianCAs by Ashwin Nagar

03 April 2011

Clarification on Point of Taxation Rules,2011

SERVICE TAX

LETTER

Service Tax : Amendments in Point of Taxation Rules, 2011 and other related provisions

LETTER [F.NO.341/34/2010-TRU], DATED 31-3-2011

As you are aware, the Point of Taxation Rules (PTR) were formulated vide Notification No.18/2011-ST dated 01.03.2011. Based on the feedback, certain amendments are being carried out in these rules vide Notification No. 25/2011-ST dated 31.03.2011. The highlights of the changes are discussed in the following paragraphs.

2. While the rules shall come into force from 01.04.2011, an option has been given in rule 9 to pay tax on payment basis, as at present, till 30.06.2011.

3. Rule 3 has been amended to provide that the point of taxation shall be as follows:

(a) Date of invoice or payment, whichever is earlier, if the invoice is issued within the prescribed period of 14 days from the date of completion of the provision of service.

(b) Date of completion of the provision of service or payment, if the invoice is not issued within the prescribed period as above.

The applicability of the rule will be clear from the illustrations in the following table:

S. No.	Date of completion of service	Date of invoice	Date on which payment recd.	Point of Taxation	Remarks
1.	April 10, 2011	April 20, 2011	April 30, 2011	April 20, 2011	Invoice issued in 14 days and before receipt of payment
2.	April 10, 2011	April 26, 2011	April 30, 2011	April 10, 2011	Invoice not issued within 14 days and payment received after completion of service
3.	April 10, 2011	April 20, 2011	April 15, 2011	April 15, 2011	Invoice issued in 14 days but payment received before invoice
4.	April 10, 2011	April 26, 2011	April 5, 2011 (part) and April 25, 2011 (remaining)	April 5, 2011 and April 10, 2011 for respective amounts	Invoice not issued in 14 days. Part payment before completion, remaining later

4. Rule 4 has been amended to clarify that change in the effective rate of tax shall also include change in that portion of value on which tax is payable in terms of an exemption notification or rules made in this regard. It may be noted that an exemption has been granted in value for various services vide Notification No. 1/2006-ST dated 01.03.2006 which has the effect of payment of tax only on a part of the value. Similarly either the values or the rates at which tax is payable are provided under rule 6(7, 7A, 7B or 7C) of the Service Tax Rules, 1994 as well as the Works Contract (Composition Scheme for Payment of Service Tax) Rules, 2007. Thus, whenever these values or the composition rates are changed, it would have the same effect as the change in the rate of duty. It is hereby further clarified that the rate of tax shall also include any other notification which is issued, rescinded or amended and has the effect of altering the taxability of any service.

5. Rule 6 relating to continuous supply of service has been aligned with the revised rule 3 and the date of completion of continuous service has been defined within the rule. This date shall be the date of completion of the specified event stated in the contract which obligates payment in part or whole for the contract. For example, in the case of construction services if the payments are linked to stage-by-stage completion of construction, the provision of service shall be deemed to be completed in part when each such stage of construction is completed. Moreover, it has been provided that this rule will have primacy over rules 3, 4 and 8.

6. Moreover, the following services have been notified as "continuous supply of services" in terms of clause 2(c) of the rules vide notification No. 28/ST-2011 dated 01.04.2011:

(a) Telecommunication service [65(105)(zzzx)]

(b) Commercial or industrial construction [65(105)(zzq)]

(d) Internet Telecommunication Service [65(105)(zzzu)]

(e) Works contract service [65(105)(zzzza)]

Thus these services will constitute "continuous supply of services" irrespective of the period for which they are provided or agreed to be provided. Other services will be considered continuous supply only if they are provided or agreed to be provided continuously for a period exceeding three months.

7. Rule 7 relating to associated enterprises has been deleted. Now that the date of completion of the provision of service is an important criterion in the determination of point of taxation, it shall take care of most of the dealings between the associated enterprises. Thus in case of failure to issue the invoice within the prescribed period, the date of completion of provision of service shall come into effect even if payment is not made.

8. Rule 7 has thus been replaced by a new provision whereby the point of taxation shall be the date of making or receiving the payment, as the case may be. This provision shall apply to the following:

(i) Export of services;

(ii) Persons, where the obligation to pay tax is on the service recipient in terms of rule 2(1)(d) of the Service Tax Rules, 1994 in respect of services notified under section 68(2) of the Finance Act, 1994.

(iii) Individuals, proprietorships and partnership firms providing specified services (Chartered Accountant, Cost Accountant, Company Secretary, Architect, Interior Decorator, Legal, Scientific and Technical consultancy services). The benefit shall not be available in case of any other service also supplied by the person concerned along with the specified services.

9. Export of services is exempt subject, inter alia, to the condition that the payment should be received in convertible foreign exchange. Until the payment is received, the provision of service, even if all other conditions are met, would not constitute export. In order to remove the hardship that will be caused due to accrual method, the point of taxation has been changed to the date of payment. However, if the payment is not received within the period prescribed by RBI, the point of taxation shall be determined in the absence of this rule.

10. In the case of services where the recipient is obligated to pay service tax under rule 2 (1)(d) of Service Tax Rules i.e. on reverse charge basis, the point of taxation shall be the date of making the payment. However, if the payment is not made within six months of the date of invoice, the point of taxation shall be determined as if this rule does not exist. Moreover, in the case of associated enterprises, when the service provider is outside India, the point of taxation will be the earlier of the date of credit in the books of account of the service receiver or the date of making the payment.

11. Changes have also been made in the Service Tax Rules, 1994 vide notification No. 26/2011-ST dated 31.03.2011 and have a close relationship with the Point of Taxation Rules as follows:

(i) The obligation to issue invoice shall be within 14 days of completion of service and not provision of service.

(ii) If the amount of invoice is renegotiated due to deficient provision or in any other way changed in terms of conditions of the contract (e.g. contingent on the happening or non-happening of a future event), the tax will be payable on the revised amount provided the excess amount is either refunded or a suitable credit note is issued to the service receiver. However, concession is not available for bad debts.

12. The credit of input services under rule 4 (7) of the Cenvat Credit Rules has also been liberalized vide notification No. 13/2011-CE (NT) dated 31.03.2011 and the same shall be available on receipt of invoice (except in cases of reverse charge) as long as the payment is made within three months. Even specified persons required to pay tax on cash basis will be able to avail credit on receipt of invoice. Suitable changes have also been made for reversal of credit or payment when the value of service is renegotiated or altered for any reason by refund or issue of a credit note by the service provider. Amendment has also been made in Rule 9 of Cenvat Credit Rules, 2004 by allowing credit on supplementary invoice, except in non-bonafide cases, which may become necessary in certain situations e.g. where the point of tax is the date of payment while the invoice had already been issued e.g. rule 4(b)(i) of Point of Taxation Rules.

13. It is further clarified that the transitional provisions will apply to all invoices issued before 31.03.2011 in so far as taxpayers who switch over to the new rules on 01.04.2011. Those assessees who like to shift to the new rules on 01.07.2011 would have similar protection in respect of invoices issued before the date they switch over to the new rules. The benefit has also been extended to services when provision has been completed before 01.04.2011 or 01.07.2011, as the case may be. It is also clarified that the payments received before the new rules come into force do not require any transitional provisions as they are already required to pay tax on payment basis.

14. It is hoped that with these changes and clarifications all representations on the subject have been dealt with. It is requested that all officers may be advised to explain and clarify the new provisions to taxpayers and assist them in every possible manner in transition to revised rules. Any difficulty experienced in this regard may be brought to the notice of undersigned as soon as possible.

--
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

30 March 2011

Revised Schedule VI- wef 01/04/2011-NOTIFICATION ISSUED

COMPANIES ACT

NOTIFICATION

Company Law : Section 642 of the Companies Act, 1956 - Schedules, forms and rules - Power of Central Government to make rules - Amendment in Notification No. S.O. 447(E), dated 28-2-2011

NOTIFICATION [F. NO. 2/6/2008-C.L-V], DATED 30-3-2011

In exercise of the powers conferred by clause(a) of sub-section(1) of section 642 read with sub-section(1) of section 210A and sub-section (3C) of section 211 of the Companies Act,1956, (1 of 1956), the Central Government hereby makes the following amendment to paragraph 2 of the notification No.447(E) dated the 28th February, 2011:-

"The notification shall come into force for the Balance Sheet and Profit and Loss Account to be prepared for the financial year commencing on or after 1.4.2011".

--
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

29 March 2011

Clarification regarding exemption from filing of ER-4, ER-5 & ER-6 returns

SERVICE TAX

LETTER

Service Tax : LETTER : [F.NO.209/03/11-CX-6], DATED 15-2-2011

The undersigned is directed to refer to Notification No. 20/2010-Central Excise (NT), dated 18.05.2010, Notification No. 21/2010-Central Excise (NT), dated 18.05.2010, Notification No. 17/2006-Central Excise (NT), dated 01.08.2006 and Notification No. 39/2004-Central Excise (NT), dated 25.11.2004.

2. It has been brought to the notice of the Board that there is lack of clarity regarding the exemption from filing the Annual Financial Information Statement (ER-4) prescribed under Rule 12(2)(a) of the Central Excise Rules, 2002 and the annual declaration (ER-5) and the monthly return (ER-6) relating to Principal Inputs prescribed under Rule 9A(1) and Rule 9A(3) of the CENVAT Credit Rules, 2004 respectively.

3. Notification No. 17/2006-Central Excise (NT), dated 01.08.2006, as amended, issued under Rule 12(2)(b) of the Central Excise Rules, 2002, inter alia, exempts assessees who paid duty of excise less than Rs. 1 crore in the preceding financial year, from filing the ER-4 return. Similarly, Notification No. 39/2004 Central Excise (NT), dated 25.11.2004, as amended, issued Rule 9A(4) of the CENVAT Credit Rules, 2004, exempts the specified class of manufacturers who paid duty of excise less than Rs. 1 crore in the preceding financial year, from filing ER-5 declaration and ER-6 return. Notification No. 20/2010-Central Excise (NT) and Notification No. 21/2010-Central Excise (NT) both dated 18.05.2010, prescribe that assessee who paid total duty of Rs. 10 lakhs or more including the duty paid by utilization of CENVAT credit in the preceding financial year, shall file such return/declaration electronically. A doubt has arisen on account of the different threshold limits prescribed for exemption from filing these returns and for filing these returns electronically.

4. The matter has been examined. The exemption provided under Notification No. 17/2006-Central Excise (NT), dated 01.08.2006 and Notification No. 39/2004-Central Excise (NT), dated 25.11.2004, as amended, is available to inter alia assessee who paid duty of excise less than Rs.1 crore including the amount paid by utilization of CENVAT credit. It is, therefore, clarified that the assessees or class of assessees who are not required to file the ER-4, ER-5 & ER-6 returns because of the above exemption, are not required to file such returns electronically even it the duty paid by them including the amount paid by utilization of CENVAT credit in the preceding financial year exceeds Rs.10 lakhs.

5. Trade and industry as well as field formations may be informed suitably.

27 March 2011

Notification on Revised Schedule VI

Company Law : Section 641 of the Companies Act, 1956 – Schedules, forms and rules – Power to alter Schedules – Replacement of existing Schedule VI by new Schedule VI

NOTIFICATION NO. S.O. 447(E), DATED 28-2-2011

Whereas the Central Government in consultation with the National Advisory Committee on Accounting Standards framed the Companies (Accounting Standards), Rules, 2006 vide G.S.R. No. 739(E), dated the 7th December, 2006 and was subsequently amended vide notification numbering (i) G.S.R. 212(E), dated the 27th March, 2008 (ii) G.S.R. 225(E), dated the 31st March, 2009, in exercise of the powers conferred by clause (a) of sub-section (1) of section 642, read with sub-section (1) of section 210A and sub-section (3C) of section 211 of the Companies Act, 1956 (1 of 1956);

Now, therefore, in exercise of the powers conferred by sub-section (1) of section 641 of the Companies Act, 1956 (1 of 1956), the Central Government hereby replace the existing Schedule VI to the said Act by the following Schedule VI,

--
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

24 March 2011

FM on Amendments to Finance Bill,2011

IT: Finance Minister's Reply to the Discussion on the Finance Bill 2011-12 in Lok Sabha

Press Release, dated 22-3-2011

Madam Speaker,

It is unfortunate that the colleagues from across the House chose not participate in the discussion on the Finance Bill 2011-12. In a democratic polity the Government stands to benefit from inputs from colleagues from both sides of the House. In turn, they have an opportunity to lend their voice and expertise to influence public policy in the larger national interest. When this does not happen, it does not bode well for the institution or the society at large.

2. I would like to thank all the speakers who chose to spoke on the Finance Bill 2011-12. A number of valuable suggestions have been made. I have already responded to some of these suggestions while replying to the General Discussion on the Budget and I also addressed a few concerns while introducing the Bill earlier today. I propose to address some more suggestions in the course of my reply.

Madam Speaker,

3. In my proposals for the Direct Taxes, for the year 2011-12, I had proposed to provide lower tax rate of 15 per cent on dividends received by Indian companies from foreign subsidiary companies in which the Indian company holds more than 50 per cent share capital. Several representations have been made requesting further relaxation in the ownership pattern of the foreign subsidiaries. I, therefore, propose to lower the holding requirement in the foreign company from 50 per cent to 26 per cent. This will enable overseas joint ventures with Indian partnership, to also avail this benefit.

4. In order to provide for deduction to employer's contribution to a pension scheme on account of an employee, I propose a consequential amendment in section 40 A (9) so that the deduction to the employer for his contribution is not barred under this section.

5. As no deduction for export profits is allowed after April 1, 2005, I propose that such export profits should also not be allowed as a deduction while computing book profit for the purpose of levy of Minimum Alternate Tax (MAT) after the said date.

6. Suitable amendments have been proposed to the Finance Bill to give effect to these changes.

Madam Speaker

7. In respect of my Indirect Tax proposals, among the Government amendments to the Finance Bill, I propose to insert a new provision in the Customs Tariff Act to enable the Central Government to extend anti-dumping duty imposed on an article in cases of circumvention. The other amendments are technical in nature and do not involve any substantive change.

8. The House would recall that one of the considerations that guided the formulation of my proposals on indirect taxes was to prepare the ground for the transition to GST, beginning with a reduction in the number of exemptions. It was in this background that a mandatory levy of 10 per cent was proposed on branded ready-made garments and made-ups of textiles. I have received a large number of representations seeking a review of this proposal on the ground that this industry is still quite fragmented with a pre-dominance of unorganised units. While moving the Finance Bill for consideration earlier today, I have already announced an increase in the level of abatement on these products so that the overall burden of tax comes down and small manufacturers benefit. I would take this opportunity to re-emphasize that this would enable an SSI unit to continue to enjoy the exemption even if it had a turnover based on Retail Sale Price (RSP) of Rs.8.9 crore in 2010-11. I shall now take up some additional measures to provide relief to this sector.

9. It has been pointed out by the garment industry that often brand owners who outsource production to small units do not disclose the RSP to them. Since the duty is payable on a value linked to the RSP, this poses a problem for small manufacturers. A deeming provision is being made to enable such manufacturers to pay duty on the wholesale price at which they make a sale to the brand owner. As and when the brand-owner affixes the RSP on the garment or made-up, he would pay the additional duty, if any.

10. The garment and made-up industry has a high incidence of return of unsold stock. In order to obviate the burden of double payment on such goods, I propose to exempt from excise duty, returned goods not exceeding 10 per cent of the value of clearances of the unit in the preceding financial year. Physical verification of stock of such returned goods by Central Excise officers would not be necessary.

11. The doubts and queries raised by the industry have also been examined. A detailed clarification is being issued on these. I would also like to recapitulate to the Hon'ble Members that –

i) The levy does not apply to unbranded goods;

ii) It does not apply to goods made to order for a retail customer;

iii) The benefit of SSI exemption is available to goods bearing or sold under the brand name of the small manufacturer himself

iv) Simplified Export procedure is available to units that predominantly export and sell unbranded goods or goods bearing their own brand name in the domestic market.

12. One issue that Hon'ble Members have persistently raised relates to the reduction of import duty on raw silk (not thrown) from 30 per cent ad valorem to 5 per cent ad valorem. Shri Deve Gowda ji also mentioned it in his intervention today. The annual requirement of raw silk for the weaving industry is around 30,000 metric tonnes. The domestic sericulture industry is able to produce two-thirds of this requirement and around 10,000 metric tonnes needs to be imported. In reducing the duty Government have tried to balance the interests of the sericulture sector and silk weavers. As I have already stated earlier today, Government will keep close watch on import volumes and domestic prices and respond, if required, in the interests of domestic sericulture.

13. Some suggestions have been received in respect of the levy of 1 per cent Central Excise duty on 130 items. I propose to extend RSP based assessment with an abatement of 35 per cent to many of these items so that disputes with regard to valuation are avoided. I also propose to exempt any waste, scrap or parings arising in the course of manufacture of these items as a measure of relief.

14. To provide a simplified regime for taxpayers exclusively manufacturing these items, the following procedural relaxations are being made:

i) Physical verification of premises would not be necessary for new registrants;

ii) Visits to such units by Central Excise officers would be permitted only with due authorisation as in the case of SSI units;

iii) They would be required to file only quarterly returns; and

iv) A simplified return format will be prescribed.

15. Based on the feedback from domestic industry, I am proposing the following reliefs in customs and central excise duties with a view to encourage domestic manufacture:

i) To extend the concessional rate of 5 per cent CVD and Nil SAD to parts of all computer printers imported by actual users;

ii) To exempt seven specified parts of personal computers from levy of special additional duty of customs;

iii) To restore full exemption from excise duty (and CVD) on silicon wafers imported for manufacture of solar cells/modules;

iv) To exempt certain types of coking coal imported for the manufacture of iron or steel from customs duty;

v) To prescribe an unconditional 1 per cent excise duty (and CVD) on mobile handsets including cellular phones in addition to 1 per cent NCCD already leviable; and

vi) To reduce the basic customs duty from 60 to 30 per cent on CKD kits containing a pre-assembled engine, gear box or transmission assembly, imported for the manufacture of vehicles.

16. Notifications to give effect to these changes would be issued in due course and laid on the table of the House.

17. As for Service Tax, I have already announced earlier today our decision to exempt the new levy on health services in entirety both in respect of services provided by hospitals as well as by way of diagnostic tests.

18. Point of taxation Rules are due to come into force from April 1, 2011 and are meant to shift the payment of service tax from only cash basis towards accrual basis. The changes are essential to align the system of payment of taxes between goods and services. Many taxpayers have expressed concerns about some provisions and also sought some time for the switchover on account of changes required in their software. Accordingly, certain changes in the relevant provisions are being worked out and an additional period of three months up to June 30, 2011 is being provided to make the transition. These changes shall be notified shortly after completing the process of consultation.

23 March 2011

Analysis on Schedule VI

Dear Reader,

We are pleased to share with you our Supplement to Assurance Eye: Revised Schedule VI.

The Ministry of Corporate Affairs (MCA) recently issued a revised Schedule VI to the Companies Act, 1956, to lay down a new format for preparation and presentation of financial statements by Indian companies. The revised Schedule VI is applicable to companies following Indian GAAP (and not Ind-AS). Though a formal circular/official notification regarding the revised Schedule VI is still awaited, the MCA website states that it is applicable from the financial year 2010-11 onwards.

The revised Schedule VI introduces many new concepts and disclosure requirements and does away with several statutory disclosure requirements of the existing Schedule VI. More importantly, the revised schedule throws up numerous questions, the answers to which may not be straight-forward and would need additional guidance from the MCA or the Institute of Chartered Accountants of India (ICAI).

The efforts involved in implementing the revised Schedule VI, particularly, considering that it applies to 2010-11 financial statements and the consequences thereof should not be underestimated. The application of the revised Schedule VI will entail significant time and investments and may necessitate customizing IT/MIS systems within a short period. This Supplement to Assurance Eye gives an overview of the key changes and implications, critical issues and our perspectives thereon. We encourage you to read this Supplement to understand various issues that may apply to your company.

Click here to read the supplement

Thank you,
Ernst & Young

--
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

22 March 2011

Amendments to Finance Bill,2011 & GST

1.AMENDMENTS TO FINANCE BILL, 2011

2. CONSTITUTION AMENDMENT BILL FOR GST

SEE ATTACHMENTS

--
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

16 March 2011

New Name Availability Rules

COMPANIES ACT

RULES/REGULATIONS

Company Law : Companies (Name Availability) Rules, 2011

In exercise of the power conferred by clause (a) of sub-section (1) of section 642 read with sections 20 and 21 of the Companies Act, 1956 (1 of 1956), the Central Government hereby makes the following Rules:

1.(i) These Rules may be called "Companies (Name Availability) Rules, 2011";

(ii) It shall come into force on such date as the Central Government may, by notification in the Official Gazette, appoint.

2. As per provisions contained in section 20 of the Companies Act, 1956, no company is to be registered with undesirable name. A proposed name is considered to be undesirable if it is identical with or too nearly resembling with:

(i) Name of a company in existence; or

(ii) A registered trade-mark or a trade mark which is subject of an application for registration, of any other person under the Trade Marks Act, 1999.

3. After notification of these Rules, while applying for a name in the prescribed e-form-1A, using Digital Signature Certificate (DSC), the applicant shall be required to furnish a declaration to the effect that:

(i) he has used the search facilities available on the portal of the Ministry of Corporate Affairs (MCA) i.e., www.mca.gov.in/MCA21 for checking the resemblance of the proposed name(s) with the companies and Limited Liability Partnerships (LLPs) already registered or the names already approved.

(ii) the proposed name(s) is/are not infringing the registered trademarks or a trademark which is subject of an application for registration, of any other person under the Trade Marks Act, 1999;

(iii) the proposed name(s) is/are not in violation of the provisions of Emblems and Names (Prevention of Improper Use) Act, 1950 as amended from time to time;

(iv) The proposed name is not offensive to any section of people, e.g., proposed name does not contain profanity or words or phrases that are generally considered a slur against an ethnic group, religion, gender or heredity;

(v) he has gone through all the prescribed guidelines, given in these Rules, understood the meaning thereof and the proposed name(s) is/are in conformity thereof;

(vi) he undertakes to be fully responsible for the consequences, in case the name is subsequently found to be in contravention of the prescribed guidelines.

4. Where, the proposed name is containing more than one word, there will be an option in the e-form 1A for certification by the practicing Chartered Accountants, Company Secretaries and Cost Accountants, who will certify that he has used the search facilities available on the portal of the Ministry of Corporate Affairs (MCA) i.e., www.mca.gov.in/MCA21 for checking the resemblance of the proposed name(s) with the companies and Limited Liability Partnerships (LLPs) already registered or the names already approved and the search report is attached with the application form. The professional will also certify that the proposed name is not an undesirable name under the provisions of section 20 of the Companies Act, 1956 and also is in conformity with Companies (Name Availability) Rules, 2011 and Guidelines made therein.

5(i). Where e-form 1A has been certified by the professional in the manner stated at '4' above, the name will be made available by the system online to the applicant without backend processing by the Registrar of Companies (ROC). This facility is not available for applications for change of name of existing companies.

(ii) Where a name has been made available online on the basis of certification of practicing professional in the manner stated above, if it is found later on that the name ought not to have been allowed under provisions of section 20 of the Companies Act read with these Rules, the professional shall also be liable for penal action under provisions of the Companies Act, 1956 in addition to the penal action under Regulations of respective professional Institutes.

(iii) Where e-form 1A has not been certified by the professional, the proposed name will be processed at the back end office of ROC and availability or non-availability of name will be communicated to the applicant.

6. The name if made available, is liable to be withdrawn anytime before registration of the company, if it is found later on that the name ought not to have been allowed. However, ROC will pass an specific order giving reasons for withdrawal of name, with an opportunity to the applicant of being heard, before withdrawal of such name.

7. The name if made available to the applicant, shall be reserved for sixty days from the date of approval and further extension of thirty days with revalidation application and fees. If, the proposed company has not been incorporated within such period, the name shall be lapsed and will be available for other applicants.

8. Even after incorporation of the company, the Central Government has the power to direct the company to change the name under section 22 of the Companies Act, 1956, if it comes to his notice or is brought to his notice through an application that the name too nearly resembles that of another existing company or a registered trademark.

9. In determining whether a proposed name is identical with another, the following shall be disregarded:

(i) The words Private, Pvt, Pvt., (P), Limited, Ltd, Ltd., LLP, Limited Liability Partnership;

(ii) The words appearing at the end of the names – company, and company, co., co, corporation, corp, corpn, corp.;

(iii) The plural version of any of the words appearing in the name;

(iv) The type and case of letters, spacing between letters and punctuation marks;

(v) Joining words together or separating the words does not make a name distinguishable from a name that uses the similar, separated or joined words;

(vi) The use of a different tense or number of the same word does not distinguish one name from another;

(vii) Using different phonetic spellings or spelling variations does not distinguish one name from another. For example, J.K. Industries limited is existing then J and K Industries or Jay Kay Industries or J n K Industries or J & K Industries will not be allowed. Similarly if a name contains numeric character like 3, resemblance shall be checked with 'Three' also;

(viii) Misspelled words, whether intentionally misspelled or not, do not conflict with the similar, properly spelled words;

(ix) The addition of an internet related designation, such as .COM, .NET, .EDU, .GOV, .ORG, .IN does not make a name distinguishable from another, even where (.) is written as 'dot';

(x) The addition of words like New, Modern, Nav, Shri, Sri, Shree, Sree, Om, Jai, Sai, The, etc. does not make a name distinguishable from an existing name such as New Bata Shoe Company, Nav Bharat Electronic etc. Similarly, if it is different from the name of the existing company only to the extent of adding the name of the place, the same shall not be allowed. For example, 'Unique Marbles Delhi Limited' cannot be allowed if 'Unique Marbles Limited' is already existing;

Such names may be allowed only if no objection from the existing company by way of Board resolution is produced/ submitted;

(xi) Different combination of the same words does not make a name distinguishable from an existing name, e.g., if there is a company in existence by the name of "Builders and Contractors Limited", the name "Contractors and Builders Limited" should not be allowed;

(xii) If the proposed name is an exact Hindi translation of the name of an existing company in English especially an existing company with a reputation, e.g., Hindustan Steel Industries Ltd. will not be allowed if there exists a company with name 'Hindustan Ispat Udyog Limited';

Guidelines for availability of name

10. In supersession of all the previous circulars and instructions regarding name availability, the applicants and Registrar of Companies are also advised to adhere following guidelines while applying or approving the proposed name:

(i) It is not necessary that the proposed name should be indicative of the main object. However, in case the proposed name is indicative of any activity, the same will be appropriately reflected in the main object clause of the Memorandum of Association;

(ii) If the Company's main business is finance, housing finance, chit fund, leasing, investments, securities or combination thereof, such name shall not be allowed unless the name is indicative of such related financial activities, viz., Chit Fund/ Investment/ Loan, etc.;

(iii) If it includes the words indicative of a separate type of business constitution or legal person or any connotation thereof, the same shall not be allowed. For e.g. co-operative, sehkari, trust, LLP, partnership, society, proprietor, HUF, firm, Inc., PLC, GmbH, SA, PTE, Sdn, AG etc.;

(iv) Abbreviated name such as 'ABC limited' or '23K limited' cannot be given to a new company. However the companies well known in their respective field by abbreviated names are allowed to change their names to abbreviation of their existing name (for Delhi Cloth Mills limited to DCM Limited, Hindustan Machine Tools limited to HMT limited) after following the requirement of section 21 of the Companies Act, 1956;

(v) If the proposed name is identical to the name of a company dissolved as a result of liquidation proceeding should not be allowed for a period of 2 years from the date of such dissolution since the dissolution of the company could be declared void within the period aforesaid by an order of the Court under section 559 of the Act. Moreover, if the proposed name is identical with the name of a company which is struck off in pursuance of action under section 560 of the Act, then the same shall not be allowed before the expiry of 20 years from the publication in the Official Gazette being so struck off since the company can be restored anytime within such period by the competent authority;

(vi) If the proposed names include words such as 'Insurance', 'Bank', 'Stock Exchange', 'Venture Capital', 'Asset Management', 'Nidhi', 'Mutual fund' etc., the name may be allowed with a declaration by the applicant that the requirements mandated by the respective regulator, such as IRDA, RBI, SEBI, MCA etc. have been complied with by the applicant;

(vii) If the proposed name includes the word "State", the same shall be allowed only in case the company is a Government company. Also, if the proposed name is containing only the name of a continent, country, state, city such as Asia limited, Germany Limited, Haryana Limited, Mysore Limited, the same shall not be allowed;

(viii) If a foreign company is incorporating its subsidiary company, then the original name of the holding company as it is may be allowed with the addition of word India or name of any Indian state or city, if otherwise available;

(ix) Change of name shall not be allowed to a company which is defaulting in filing its due Annual Returns or Balance Sheets or which has defaulted in repayment of matured deposits and debentures and/or interest thereon;

(x) With a view to maintain uniformity, the following guidelines may be followed in the use of keywords, as part of name, while making available the proposed names under sections 20 and 21 of the Companies Act, 1956:

S.No.	Key Words	Required authorized capital (in Rs.)
1	Corporation, corp, corpn, corp.	25 crore
2	international, Globe, Global, World, Overseas, Universe, Universal, Continent, Continental, Inter Continental, Asiatic, Asia, Asian being the first word of the name	5 crore
3	If any of the words at (2) above is used within the name (with or without brackets)	2 crore
4	Hindustan, India, Indo, Indian, Bharat, Bharatvarsh, Bhartiya or any other country's name being first word of the name	2 crore
5	If any of the words at (4) above is used within the name (with or without brackets)	25 lakh
6	Industries/ Udyog	5 crore
7	Enterprises, Products, Business, Manufacturing, Venture.	50 lakh

14 March 2011

IT Scrutiny Simplified Procedure

No.402/92/2006-MC (07 of 2011)

Government of India / Ministry of Finance

Department of Revenue

Central Board of Direct Taxes

***

New Delhi dated the 14

th March 2011
PRESS RELEASE

Streamlining procedure for scrutiny of income-tax returns

Scrutiny of income tax returns is an important mechanism for ensuring taxpayer

compliance and to counter tax-evasion. However, it has evoked some concern from small

taxpayers and senior citizens about prolonged enquiries. Concerns have also been raised about

selection of the same cases in scrutiny year after year.

Appreciating the concern of these taxpayers and with a view to mitigate their hardships,

Central Board of Direct Taxes has reviewed its scrutiny selection procedure. In order to redress

the grievance, it has been decided that during the financial year 2011-12, cases of senior citizens

and small taxpayers, filing income-tax returns in ITR-1 and ITR-2 will be subjected to scrutiny

only where the Income Tax department is in possession of credible information.

Senior citizens for this purpose would be individual taxpayers who are 60 years of age or

more. Small taxpayers would be individual and HUF taxpayers whose gross total income, before

availing deductions under Chapter VIA, does not exceed Rupees ten lakh.

***

13 March 2011

CBDT on Refund

From the desk of Chairman,CBDT S.N. 17 / March 11 ,2011

Casual & cavalier attitude

Refund cases not yet entered on the system

All the CCITs, including the CCITs (CCA), were advised by the Board on Feb 28 & again on March 05 11 to provide data regarding paper refund cases not yet entered on the system.

The CBDT feels anguished that, except CCITs Nagpur, Ranchi, Panaji & Guwahati, no other CCIT has taken care to comply with the Board's appeal.

Such a casual & cavalier response of senior-most functionaries in the field is disheartening for the Board, which is doing its best for the welfare of the entire cadre.

May the CBDT expect that all the CCITs will get the paper refund cases not yet entered on the system uploaded today itself & ensure that all refund cases are processed forthwith without any further delay?

12 March 2011

IndianCAs: Company Incorporation- 1 Day

General Circular No. 6/2011

F.No. 17/56/2011-CL-V

Government of India

Ministry of Corporate Affairs

^thFloor, A Wing, Shastri Bhavan

Dr. R.P. Road, New Delhi-110001

Dated 8

th March, 2011

All Regional Directors

All Registrar of Companies

All Official Liquidators

Sub: Process of incorporation of Companies ( Form-1) and establishment of principal place of business in India by Foreign Companies ( Form-44) – Procedure simplified.

Sir,

I am directed to inform that Ministry has received various representations regarding time taken by the Registrar of Companies for registration of Form-1 and Form-44.

The Ministry has got the issue examined by Business Process Re-engineering Group under MCA-21 and in order to speed up and simplify the process of incorporation of Companies and establishment of principal place of business in India by Foreign Companies for reduction in time taken by Registrar of Companies, the below mentioned procedure have been recommended :

1. Only Form-1 shall be approved by the RoC Office. Form 18 and 32 shall be processed by the system online.

2. There shall be one more category, i.e., Incorporation Forms ( Form 1A, Form 37, 39, 44 and 68) which will have the highest priority for approval.

3. Average time taken for incorporation of company should be reduced to one (1) day only.

4. A Notification to notify minor changes in e-forms 18 and 32 to enable them to be taken on record through STP mode for aforesaid procedure is being issued separately.

Yours faithfully,

(Seema Rath)

Assistant Director (Inspection)

Tele : 011-23387263

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07 March 2011

IndianCAs: DIN Rules Simplified [1 Attachment]

[Attachment(s) from Ashwin Nagar included below]

COMPANIES ACT

CIRCULAR/PRESS NOTE

Company Law : Section 266B of the Companies Act, 1956 - Director Identification Number (DIN) - Allotment of - DIN Process Simplified

GENERAL CIRCULAR NO. 5/2011 [F.NO.2/1/2011 CL.V], DATED 4-3-2011

I am directed to inform that the Ministry's has re-examined the process of allotment of Directors Identification Number (DIN) to be obtained u/s 266B of the Companies Act, 1956. The present process is cumbersome and time consuming. Representations have been received in the Ministry that the documents required to be submitted should be simple to prove the existence/residence of a person, who intend to become a director of a company.

The Ministry has constituted a Group to examine the business process re-engineering under MCA-21. In order to speed up and simplify the process to obtain a DIN, the below mentioned procedure have been recommended.

1. Application for DIN will be made on eForm; No physical submission of documents shall be accepted and for this purpose Scanned documents along with verification by the applicant will be attached with the eForm. Only online fee payment will be allowed i.e. No challan payment

2. The application can also be submitted online by the applicant himself using his DSC.

3. DIN 1 eForm can be digitally signed by the professional who shall also confirm that he has verified the particulars of the Applicant given in the application.

4. Where the DIN 1 is verified by the professional, the DIN will be approved by the system immediately online.

5. In other cases the DIN cell will examine the application and same shall be disposed of within one or two days.

6. Companies (Directors Identification Number) Rules, 2006 are being amended on the above lines.

7. Penal action against the applicant and professional certifying the DIN application in case of false information/certification as per provisions of section 628 of the Act will be taken in addition to action for professional misconduct and revocation of DIN, allotted on false information.

8. The above procedures is expected to enable allotment of DIN on the same day.

9. The above procedures applies to filing of DIN 4 intimating changes in particulars of Directors.

A notification to notify the aforesaid procedure is being issued. After issue of necessary notification, the applicant/professionals/DIN Cell are advised to follow the notified procedures for allotment of DIN.