Taxation Laws (Second Amendment) Act,2016

Ministry of Finance16-December, 2016 18:17 IST

Taxation Laws (Second Amendment) Act, 2016 came into force yesterday i.e. 15th December, 2016 and rules notified today and placed in public domain; The Taxation and Investment Regime for Pradhan Mantri Garib Kalyan Yojana, 2016 introduced under the said Act to commence from tomorrow i.e.17th December, 2016 and to remain open for declarations up to 31st March, 2017.

 

The Taxation Laws (Second Amendment) Act, 2016 has come into force on 15th December, 2016.  The Taxation and Investment Regime for Pradhan Mantri Garib Kalyan Yojana, 2016 (the Scheme) introduced vide the said Act shall commence on 17^th December, 2016 and shall remain open for declarations up to 31^st March, 2017. The rules in this regard have been notified vide Notification No.116 dated 16^th December, 2016 and have been placed in public domain. A separate notification has been issued for Pradhan Mantri Garib Kalyan Deposit Scheme, 2016 by Department of Economic Affairs.  

           

The salient features of the Scheme are as under:

 

     (i)            Declaration under the Scheme can be made by any person in respect of undisclosed income in the form of cash or deposits in an account with bank or post office or specified entity.

   (ii)            Tax @30% of the undisclosed income, surcharge @33% of tax and penalty @10% of such income is payable besides mandatory deposit of 25% of the undisclosed income in Pradhan Mantri Garib Kalyan Deposit Scheme, 2016. The deposits are interest free and have a lock-in period of four years.

 (iii)            The income declared under the Scheme shall not be included in the total income of the declarant under the Income-tax Act for any assessment year.

 (iv)            The declarations made under the Scheme shall not be admissible as evidence under any Act (eg. Central Excise Act, Wealth-tax Act, Companies Act etc.). However, no immunity will be available under Criminal Acts mentioned in section 199-O of the Scheme.

 

            Non declaration of undisclosed cash or deposit in accounts under the Scheme will render such undisclosed income liable to tax, surcharge and cess totaling to 77.25% of such income, if declared in the return of income. In case the same is not shown in the return of income a further penalty @10% of tax shall also be levied followed by prosecution. It may be noted that the provisions for levy of penalty for misreporting of income @200% of tax payable under section 270A of the Income-tax Act have not been amended and shall continue to apply with respect to cases falling under the said section.

 

The Taxation Laws (Second Amendment) Act, 2016 has also amended the penalty provisions in respect of search and seizure cases. The existing slab for penalty of 10%, 20% & 60% of income levied under section 271AAB has been rationalised to 30% of income, if the income is admitted and taxes are paid. Otherwise a penalty @60% of income shall be levied.

           

The Scheme, Rules and Notifications are available on the official website of the Department www.incometaxindia.gov.in .  Any queries/clarifications relating to the Scheme may be emailed at ts.mapwal@nic.in .

 

 

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DSM/KA

 

(Release ID :155589)

ICAI issues mandatory KYC Norms

ICAI - ICAI issues mandatory KYC Norms applicable w.e.f 1.1.2017 - (10-12-2016) - http://resource.cdn.icai.org/44165icai-kyc-esb.pdf

The CBDT has issued Circular No. 40/2016

The CBDT has issued Circular No. 40/2016 dated 9th December 2016 directing Assessing Officers not to reopen assessments of earlier years u/s 147 of the Act merely because there is an increase in turnover of the present year because of the adoption by the assessee of digital means of payment. The CBDT has pointed out that such move would cause “undue harassment” to the taxpayers

Service tax Exemption Notification

No service tax on credit, debit card transactions up to 2,000

The Government will waive service tax on debit and credit card transactions of up to Rs. 2,000 to promote digital transactions amid cash crunch following the withdrawal of old Rs. 500 and 1,000 banknotes.

The Government has decided to "exempt services by an acquiring bank to any person in relation to settlement of an amount up to Rs. 2,000 in a single transaction through credit, debit card or other payment card service", sources said.

A notification to this effect will be tabled by Finance Minister Arun Jaitley in Parliament.

Following demonetisation of old high value notes, there has been a cash crunch in the country as people have been making a beeline for banks and ATMs to withdraw new currency.

The Government has been taking steps to promote cashless or digital transactions to take India towards a less-cash economy.

Recently, the Government asked banks to install additional 10 lakh PoS terminals by March 31 in different parts of the country.

The service tax notification of June 2012 will be amended to include exemption on credit and debit cards, the sources added.

As of now, services provided by organisations such as United Nations and other international bodies are exempt from tax.

A range of other services provided by arbitral tribunals, testing of newly developed drugs, educational institutions, trade unions, general insurance business and sports bodies, among others, too are exempt from the levy.

Circular on ;OIDAR

Ministry of Finance11-November, 2016 21:01 IST

To provide a level playing field to Indian service providers, the exemption given to service providers located in foreign territory but providing taxable online information and database access or retrieval [OIDAR] services including electronic services in India, is being withdrawn with effect from 1st December, 2016

 With a view to provide a level playing field to Indian service providers providing taxable online information and database access or retrieval [OIDAR] services including electronic services in India, the exemption to such services provided in India by service providers located in foreign territory is being withdrawn with effect from 1^st December, 2016. Thus cross border business to consumer [B2C] OIDAR services provided by a foreign service provider to a person in India will become taxable from 1^st December, 2016 onwards.

The salient features of this levy are as under:

·         A simplified online mechanism of taking registration has been prescribed and registration will be deemed to be granted online on submission of registration application.

·         A simplified mechanism of online payment of taxes and online filing of returns is being prescribed.

            A detailed Circular No. 202/12/2016-Service Tax dated 09.11.2016 has been issued by CBEC, explaining the likely issues arising from the withdrawl of this exemption.

Useful links:

1)      http://www.cbec.gov.in/ServiceTax-Notifications

2)      http://www.cbec.gov.in/htdocs-servicetax/st-circulars/st-circulars-2016/st-circ-202-2016

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Service Tax on AC Restaurants is unconstitutional

November 24, 2016[2016] 75 taxmann.com 272 (Kerala)

Service Tax : Levy of service tax on Air Conditioned Restaurants is unconstitutional since when food is supplied as part of any service, such transfer would be deemed as sale. Thus, there is no component of service which could be charged to service tax when food is supplied by Air Conditioned Restaurant

• The Kerala High Court held that levy of service tax on air conditioned restaurants is unconstitutional. It relied on its own judgment in case of Kerala Classified Hotels & Resorts Association v. Union of India [2013] 35 taxmann.com 568 (Kerala) where it was held that the Article 366(29A)(f) of the Constitution empowers the State Governments to impose sales tax on supply of goods, whether it is by way of or as a part of any service and when food is supplied as part of any service, such transfer would be deemed to be a sale. Thus, there is no component of service which could be charged to service tax when food is supplied by Air Conditioned Restaurant.

Editor's Comment:

• The Government [vide LETTER C.NO.ST-20/STD/MISC./SEVOTTAM/62/12/4693, DATED 13-8-2015] has clarified that service-tax could not be levied either on takeaway orders or home deliveries by the Air Conditioned Restaurants.

• In case of takeaway orders or home deliveries, the dominant nature of the transaction is that of sale and not service, as the food is not served at the Restaurant. Further, no other element of service is offered at the Restaurants, be it ambience, live entertainment, Air Conditioning, or personalized hospitality. The Service tax can be levied if there is an element of 'Service' involved which would typically cover the case where food is served in Restaurant.

• However, the Kerala High Court held that the goods sold at Restaurants could only be considered as sale, irrespective of the fact whether any service is involved in it or not. The aforesaid ruling of the High Court is pending before the Apex Court. 

FAQ on PMGKY

FAQs on Pradhan Mantri Garib Kalyan Yojana   The Government has announced demonetization of existing currency of Rs. 500/1000 with effect from the 9th November, 2016. However, concerns have been raised that some of the existing provisions of the Income-tax Act, 1961 ('Act') could possibly be used for concealing black money. So, the Government has introduced Taxation Laws (Second Amendment) Bill, 2016 in the Lok Sabha to amend the provisions of Income-Tax Act. The Bill was also cleared in the Lok Sabha.   The Government has announced Pradhan Mantri Garib Kalyan Yojana 2016 (PMGKY) in the Taxation Laws (Second Amendment) Bill, 2016. As per this PMGKY black money deposited in banks or held in cash can be offered for taxation at 49.9% (i.e., 30% tax, 9.9% surcharge and 10% penalty).   

Strict Action against Tax Evaders using other persons’ Bank Accounts to convert their Black Money

Press Information Bureau 
Government of India
Ministry of Finance
18-November-2016 16:23 IST

Strict Action against Tax Evaders using other persons’ Bank Accounts to convert their Black Money into New Denomination Notes; 
Person(s) who allows His Or Her Bank Account to be misused for this purpose can be Prosecuted for Abetment under Income Tax Act; Government appeals to people NOT to come in the Lure of Black Money Converters and be a Partner in this Crime of Converting Black Money into White through this method and help join the Government in eradicating it. 

It was announced by the Government earlier that small deposits made in the banks by artisans, workers, housewives, etc. would not be questioned by the Income Tax Department in view of the fact that present exemption limit for income tax is Rs. 2.5 lakh. There are some reports received that some people are using other persons’ bank accounts to convert their black money into new denomination notes for which reward is also being given to the account holders who agree to allow their accounts to be used. This activity is reported in case of Jandhan Accountsalso.

It is hereby clarified that such tax evasion activities can be made subject to income tax and penalty if it is established that the amount deposited in the account was not of the account holder but of somebody else. Also the person who allows his or her account to be misused for this purpose can be prosecuted for abetment under Income Tax Act.

However, the genuine persons having their own household savings in cash and depositing the same in the bank would not be questioned.

The people are requested NOT to come in the lure of black money converters and be a partner in this crime of converting black money into white through this method. Unless all citizens of the country help the Government in curbing black money, this mission of black money will not succeed. Also the people who are against the black money should give information of such illegal activities going on to the Income Tax department so that immediate action can be taken and such illegal transfer of cash can be stopped and seized.

Black money is a crime against humanity. We urge every conscientious citizen to help join the Government in eradicating it.

*****

DSM/KA

Banks to remain open for public on Saturday, November 12 and Sunday, November 13, 2016

@RBI
*Banks to remain open for public on Saturday, November 12 and Sunday, November 13, 2016* (So Banks working for next 4 days)
http://rbi.org.in/Scripts/NotificationUser.aspx?ID=10686 …

ICAI members PAN update Only required for Practicing Members

This refers to the earlier announcements of ICAI regarding the updation of PAN details by the members in the Institute’s records to avoid blocking of e-filing account by the Income Tax Department. Inspite of the earlier said announcements and reminder emails sent from time to time, it has been observed that many members have still not updated their PAN details in the Institute’s record.

It is pertinent to mention that in the recent past the Income Tax authorities have blocked the e- filing accounts of the members who either have not submitted their PAN details to the Institute or of those, in whose cases discrepancies have been found between records as available with the Institute and the database of the Income Tax Department on account of the mismatch in ‘Name’/ ‘PAN No.’ / ‘Date of Birth’. These blocked accounts have been reactivated after a lot of efforts by the Office as during this period members had to face lot of hardships.

To avoid such a situation in future, we urgently appeal to all practicing members who have not yet submitted their PAN details to submit the same to their respective Regional Offices at the earliest .Those members in whose cases mismatches (in Name, Date of Birth or PAN) have been found between ICAI records and those as per Income Tax Department are also advised to settle the discrepancies at the earliest. Individual communications for all such cases have already been sent through e-mail to all the members as per Institute’s records.

The members who have not yet provided their PAN details for ICAI records or members in whose records the discrepancy exists in the ICAI and Income Tax Authorities records, can also submit the same through the following link: http://appforms.icai.org/panupdate/index.html

Members who have already furnished details need not do again.

(V. Sagar)
Secretary, ICAI

For more details please visit

http://www.icai.org/new_post.html?post_id=13013&c_id=219

ASB ICAI issues FAQ on Dividend Distribution Tax

ASB ICAI issues FAQ on Dividend Distribution Tax. Link
http://resource.cdn.icai.org/43791asb33473a.pdf

GUIDANCE NOTE UNDER SECTION 92E

ICAI has issued GUIDANCE NOTE UNDER SECTION 92E OF THE INCOME-TAX ACT, 1961 (Transfer Pricing) on 2-Nov-16.

Pls click below link to access or download the document:

http://resource.cdn.icai.org/43783citax33453.pdf

CBDT Directive On Scope Of Disallowance U/s 40(a)(i) For Failure To Deduct TDS U/s 195 On Payment To Non-Residents

CBDT Directive On Scope Of Disallowance U/s 40(a)(i) For Failure To Deduct TDS U/s 195 On Payment To Non-Residents

The CBDT has issued a letter dated 26.10.2016 in which it has drawn attention to its Circular No 3/2015 dated 12.2.2015. In the said Circular it was clarified that for the purpose of making disallowance of “other sums chargeable” under Section 40(a)(i) of the Income-tax Act, 1961, in the case of non-residents, the appropriate portion of the sum chargeable to tax under the Act, i.e. income component therein shall form the basis of such disallowance. The CBDT has noted that this Circular is not being kept in view by administrative Commissioners & Commissioners (Appeal) while filing further appeals and while deciding cases. Further, the Circular is not kept in view by departmental representatives in ongoing litigation cases, who still take a position that the disallowance should be based on the gross amount of offshore payments such as purchases. The CBDT has directed the departmental officers including representatives of the department in litigation before ITAT/Courts etc. to be sensitized to the content of this circular

Extension of last date for filing AOC-4, AOC-4 (XBRL), AOC-4 (CFS) and MGT-7

Extension of last date for filing AOC-4, AOC-4 (XBRL), AOC-4 (CFS) and MGT-7 eforms under the Companies Act, 2013 till 29th November, 2016.

http://mca.gov.in/Ministry/pdf/Generalcircular12_28102016.pdf

CBEC ON EPCG

CBEC Instructions for Rationalization of procedures reg. handling exporters obligations under EPCG authorizations

The CBEC has instructed to further rationalize the procedures reg. handling exporters obligations under EPCG authorizations to ensure transparent random selection criteria and selection for 5% check being made at least at Joint/Additional Commissioner level and the relevant exporter being invariably informed, on the date of selection itself, via official email communication that its case is selected for detailed checks. Also CBEC has reiterated to ensure credibility and transparency in the Bond cancellation process by making the process speedier and that the exporter should not be asked to routinely produce information that can be sourced from the Customs EDI system.

CBEC Instructions dt. 14 Oct. 2016 F.No.605/71/2015-DBK 

1. The undersigned is directed to say that as a part of further rationalizing procedures and avoiding duplication of work based on feedback on outcomes of applying extant procedures, taking into account the conditions prescribed in the Foreign Trade Policy and Customs notifications, the Board reviewed certain aspects of the directions given to field formations in Circular No. 5/2010-Cus, Instruction No. 609/119/2010-DBK dated 18.01.2011 and Circular No. 14/2015-Cus insofar as they relate to EPCG scheme. The details are given in succeeding paragraphs.

2. At present the correctness of the installation certificates issued by Chartered Engineers are to be verified on random basis in at least 5% cases through the Central Excise Division. The Board has decided that this verification be restricted to 5% cases.

3A. In the Circular of 2010 it was prescribed that first block EO (export obligation) should be verified in detail and if it has been found satisfactory then EODC issued at end of second block should be accepted without further verification. The Instruction of 2011 confirmed that this is to be implemented; however, for past cases where exporter had not come forward for first block verification but had submitted the EODC, the EODC may be accepted subject to random verification of at least 5% of EODCs issued in such past cases. It further directed that the Customs check, in detail, at least 5% EODCs. In this connection, it was noted that not meeting the block-wise EO attracts composition fees or payment of duty with interest and this find mention in HBP and is also referred in Customs notifications.

3B. On consultation, the DGFT has informed that the provisions of para 5.14 of HBP 2015-20 that provides

"5.14(c)HBP: Where EO of the first block is not fulfilled in terms of the above proportions, except in cases where the EO prescribed for first block is extended by the Regional Authority subject to payment of composition fee of 2% on duty saved amount proportionate to unfulfilled portion of EO pertaining to the block, the Authorization holder shall, within 3 months from the expiry of the block, pay duties of customs (along with applicable interest as notified by DOR) proportionate to duty saved amount on total unfulfilled EO of the first block",

and the similar provisions in previous FTP/HBP 2009-14 and 2004-09 are strictly followed by Regional Authorities before issuing EODC/redemption/closure letters; and also that cases of condoning / delay in fulfillment of block-wise EO are considered by Regional Authorities only when exporter has obtained relaxation in terms of DGFT's powers under the FTP. The DGFT has also advised its Regional Authorities to ensure that these provisions are strictly followed in respect of all unredeemed EPCG authorization issued during the FTP 2004-09, 2009-14 and 2015-20.

3C. In the light of this, Board has decided that Customs authorities need not replicate the verification of export obligation of the first block that is being conducted by Regional Authorities and that the EODCs received under EPCG Scheme in terms of FTP/HBP 2004-09, 2009-14 and 2015-20 be normally accepted without further verification, except in 5% cases where they be verified in detail before acceptance.

4. The foregoing aspects remain subject to detailed verification of EODC when there is such a need suggested by specific intelligence. Further, if Regional Authorities endorse verification of shipping bills/other documents on an EODC, such verification shall be carried out. Moreover, it remains mandatory to verify genuineness of non-EDI shipping bills/bills of export on which an EODC may be based.

5. The guidelines issued in the past on the subject shall be modified to the above extent. It should be noted that monitoring of progress of block-wise EO fulfillment is to continue and as clarified in Circular No. 14/2015-Cus the field formations can view the EPCG authorization-wise all India export details in EDI.

6. The Commissioners are also directed to ensure transparent random selection criteria and selection for 5% check being made at least at Joint/Additional Commissioner level and the relevant exporter being invariably informed, on the date of selection itself, via official email communication that its case is selected for detailed checks. Credibility and transparency may be brought into the Bond cancellation process which may be made speedier. The exporter should not be asked to routinely produce information that can be sourced from the Customs EDI system.

To view or download pdf copy of CBEC Instructions in this regard, please refer the link below:

CBEC Instructions dt. 14 Oct. 2016 Procedures reg. Exporters obligations under EPCG au

          

Form 68

Form No. 68 notified to get immunity from penalty for underreporting and misreporting of income

October 7, 2016

INCOME-TAX (TWENTY FIFTH AMENDMENT) RULES, 2016 - INSERTION OF RULE 129 AND FORM NO.68

NOTIFICATION NO. SO 3150(E) [NO.90/2016 (F.NO.370142/26/2016-TPL)], DATED 5-10-2016

In exercise of the powers conferred by section 295 read with sub-section (2) of section 270AA of the Income-tax Act, 1961 (43 of 1961), the Central Board of Direct Taxes hereby makes the following rules further to amend the Income-tax Rules, 1962, namely:—

1. (1) These rules may be called the Income-tax (25th Amendment) Rules, 2016.

(2) They shall come into force on the 1st day of April, 2017.

2. In the Income-tax Rules, 1962 (hereinafter referred to as the said rules), after rule 128, following rule shall be inserted, namely:—

"129. Form of application under section 270AA.— An application to the Assessing Officer to grant immunity from imposition of penalty under section 270A and from initiation of proceedings under section 276C or section 276CC shall be made in Form No.68.".

3. In the said rules, in Appendix-II, after Form No.67, the following form shall be inserted, namely:—

"FORM No. 68 Form of application under section 270AA(2) of the Income-tax Act, 1961

Withdrawal of two ICAI Guidance Notes on Accounting (07-10-2016)

Withdrawal of two ICAI Guidance Notes on Accounting (07-10-2016)

The same are no longer relevant in the present day context:

GN(A) 9 (Issued 1994) – Guidance Note on Availability of Revaluation Reserve for Issue of Bonus Shares

GN(A) 20 (Issued 2005) - Guidance Notes on Accounting for Fringe Benefits Tax

ST Arrest Guidelines

Revised Guidelines of CBEC for arrest in relation to Service Tax offences punishable under the Finance Act, 1994 and Central Excise Act, 1944

The CBEC has issued revised guidelines for arrest in relation to Service Tax offences punishable under the Finance Act, 1994 and Central Excise Act, 1944, while emphasizing careful examination of the legal and factual aspects  before proceeding with arrest, as under:

CBEC Circular No. 201/11/2016-Service Tax dt. 30 Sept. 2016 F.No. 137/47/2013-Service Tax

1. I am directed to draw your attention to the fact that the arrest provisions in Service Tax were introduced with effect from 10.05.2013 vide sub-sections (J) and (K) of section 103 of the Finance Act, 2013 which introduced sections 90 and 91 in the Finance Act, 1994 and also amended section 89 of the Finance Act 1994. Vide sections 155, 156 and 157 of the Finance Act 2016, with effect from 14.05.2016, sections 89, 90 and 91 of the Finance Act, 1994 have been amended. As a consequence of these amendments, the power of arrest in Service Tax is available only if a person collects any amount as service tax but fails to pay the amount so collected to the credit of the Central Government beyond the period of six months from the date on which such payment becomes due and the amount exceeds rupees two crore.

2.0 Vide paragraph 2 of Board Circular F.No. 137/47/2013-Service Tax dated 17.09.2013 certain conditions precedent to carrying out arrests were indicated. These were:

2.1 Careful exercise of this power since arrest impinges on the personal liberty of an individual.

2.2 The reason to believe that a person has committed the specified offence which is rendering the person liable for arrest must be based on credible material which will stand judicial scrutiny.

2.3 The relevant factors before deciding to arrest a person must be, apart from fulfillment of the legal requirements, the need to ensure proper investigation and prevention of the possibility of tampering with evidence or intimidating or influencing witnesses.

3.0 In the context of the legislative amendments vide the Finance Act 2016 and the single offence for which the power of arrest exists, it is necessary to again emphasize and indicate the factors which must invariably be kept in mind before arresting a person:

4.0 Conditions precedent- Legal 

4.1. At the outset there must be clear and unambiguous notings in the file, bringing out how all the ingredients of the offence have been established. The notings must specifically refer to evidence relating to-

4.1.1 Amount collected as service tax: Collection of an amount as service tax should be clear and self-evident from the invoices, bills, contracts, etc. An amount should be clearly indicated as service tax. The copies of sample invoices /bills, contracts, etc. which cover the period being investigated should be in the file.

4.1.2 Amount should exceed Rs 2 crore.

4.1.3 Failure to pay the amount so collected to the credit of the Central Government:

The 8T3 return filed by the assessee for the relevant period, showing the self-assessed value of taxable services and service tax paid should be available in file. Where no such return has been filed, an observation to this effect should be made since this will make the departmental case stronger.

4.1.4 Such a failure should be beyond the period of six months from the date on which such payment becomes due: Fulfillment of the condition relating to the time period must be verified carefully, and a month wise abstract of the invoice numbers, due date of payment of service tax and date when the six month period was completed must be kept ready.

4.2 The suggestions in the preceding paragraph are intended at bringing uniformity in the approach to such matters and ensuring that evidence relating to the alleged offence is readily available for perusal by a judicial body, when necessitated.

5.0 Conditions precedent- factual 

5.1 Even if all the legal conditions precedent mentioned in paragraph 4.1 to 4.2 are fulfilled, that will not, ipso facto, mean that an arrest must be made. Once the legal ingredients of the offence are made out, the Commissioner must then determine if the answer to the following questions is in the affirmative

5.1.1 Is the alleged offender likely to hamper the course of further investigation by his unrestricted movement?

5.1.2 Is the alleged offender likely to tamper with evidence or intimidate or influence witnesses?

5.2 If the answer to both the questions is yes, then the decision to arrest can be made.

5.3 If the alleged offender is assisting in the investigation and has deposited at least half of the evaded tax, then the need to arrest may not arise.

6.0 The Guidelines issued vide Board Circular F.No. 137/47/2013-Service Tax dated 17.09.2013 may be referred to for the procedure for arrest, post-arrest formalities and the reporting system.

7.1. It has been decided to revise the monetary limits for arrests and prosecution in Central Excise to maintain uniformity of practice in Central Excise and Service Tax. It is directed that henceforth arrest and prosecution of a person in relation to offences specified under clause (a) to (d) of sub-section (1) of section 9 of the Central Excise Act, 1944 may be considered only in cases where evasion of Central Excise duty or misuse of CENVAT Credit is equal to or more than rupees two crore. Central Excise Circular No. 974/08/2013-CX dated 17.09.2013 and 1009/ 16/2015-CX dated 23.10.2015 stand amended accordingly. Circular No. 1010/ 17/2015-CX dated 23.10.2015 is rescinded in View of the revision of monetary limits prescribed by this circular. It is again reiterated that arrest and prosecution should not be resorted to in cases of technical nature i.e. where the additional demand of duty/tax is based totally on a difference of opinion regarding interpretation of law.

7.2 Transitional provisions as prescribed in para 11 of the Circular No. 1009/ 16/2015-CX dated 23.10.2015 shall apply mutatis-mutandis i.e. all cases where sanction for prosecution is examined and accorded after the issue of this circular, shall be dealt in accordance with the provisions of this circular, irrespective of the date of the offence. Cases where prosecution was sanctioned but no complaint has been filed before the magistrate shall also be reviewed by the prosecution sanctioning authority in light of the enhanced monetary limit and sanction withdrawn for cases where evasion of Central Excise duty or misuse of CENVAT Credit is below the revised monetary limit of rupees two crore.

8.0 It is emphasized once again that since an arrest impinges on the personal liberty of an individual, this power should be exercised with great responsibility and caution and only after a careful examination of the legal and factual aspects indicated in the preceding paragraphs.

CBEC Circular No. 201/11/2016-Service Tax dt. 30 Sept. 2016 | View

CBDT notifies ICDS

CBDT notifies ICDS to be applicable w.e.f. AY 2017-18 for all assesses other than individual & HUF (who are not under audit u/s 44AB) following mercantile system of accounting.

It also amends Form 3CD w.e.f. 1st April 2017 to incorporate compliance of ICDS.

SC on Service Tax Audit

Apex Court stays Delhi HC's judgment of 'Mega Cabs' on service tax audit

September 30, 2016[2016] 73 taxmann.com 402 (SC)

Service Tax : Judgment of Delhi High Court quashing rule 5A(2) of Service Tax Rules, 1994 and holding service tax audits as invalid, has been stayed by Supreme Court; hence, for time being, service tax audits may continue

■■■

[2016] 73 taxmann.com 402 (SC)

SUPREME COURT OF INDIA

Union of India

v.

Mega Cabs (P.) Ltd.

Madan B. Lokur AND DR. D. Y. CHANDRACHUD, JJ.

Petition(s) for Special Leave to
Appeal (C) no(S). 26675 of 2016

SEPTEMBER  26, 2016 

Rule 5A , read with rule 5 of the Service Tax Rules, 1994 and sections 72, 72A, 73, 82 and 94(2)(k) of the Finance Act, 1994 - Audit - Service Tax - Submission of Records - Rule 5A(2) was amended w.e.f. 5-12-2014 authorising officers of Service Tax Department or audit party to seek production of documents on demand and Circulars 181/7/2014-ST and Circular 995/2/2015-CX were issued power of audit and audit norms - Assessee challenged said rule and Circulars on ground that there is no power of audit with service tax authorities and only audit under Section 72A can be conducted by Chartered/Cost Accountants - High Court held that : (A) there is no general power with service tax authorities to conduct audit; (B) word 'verify' in section 94(2)(k) empowers verification of records and does not empower 'audit' of records, as audit is an specialized function and cannot be entrusted to any and every officer of department; (C) moreover, 'records' would mean 'records' required to be kept under rule 5(2), therefore, rule 5A(2) requiring even furnishing of 'audit reports' exceeds mandate of 'records'; and (D) hence, Rule 5A(2) and two Circulars were ultra vires and quashed - On Revenue's Special Leave Petition before Supreme Court - HELD : Notice be issued in petition - In meanwhile, there shall be a stay of operation of judgment of High Court. [Para 3] [Partly in favour of Revenue]

Circulars and Notifications : Notification No. 23/2014-ST, dated 5-12-2014, Circular No. 181/7/2014-ST dated 10-12-2014, Circular No. 995/2/2015-CX dated 27th February 2015

CASE REVIEW

 

Mega Cabs (P.) Ltd. v. Union of India [2016] 70 taxmann.com 51 (Delhi) - stayed.

Mukul Rohatgi, AG, Rupesh Kumar, Subash C. Acharya, Ms. Diksha Rai, Nikhil Rohatgi, Mohit Khubchandani, Advs. and B. Krishna Prasad, AOR for the Petitioner. J.K. Mittal, Rajveer Singh, Advs. and Praveen Swarup, AOR for the Respondent.

ORDER

 

Issue notice.

Mr. J.K. Mittal, learned counsel accepts notice on behalf of the sole respondent.

In the meanwhile, there shall be a stay of the operation of the impugned judgment and order dated 3.6.2016 passed by the High Court in Writ Petition(C) No.5192 of 2015.

Tag with Special Leave Petition (Civil) No.34872 of 2014

GST Council

Press Information Bureau
Government of India
Ministry of Finance
12-September-2016 19:01 IST

Cabinet approves creation of GST Council and its Secretariat ; First Meeting of the GST Council to be held on 22nd and 23rd September, 2016 in national Capital.

The Constitution (One Hundred and Twenty-second Amendment) Bill, 2016, for introduction of Goods and Services Tax (GST) in the country was accorded assent by the President on 8th September, 2016, and the same has been notified as the Constitution (One Hundred and First Amendment) Act, 2016. As per Article 279A (1) of the amended Constitution, the GST Council has to be constituted by the President within 60 days of the commencement of Article 279A. The notification for bringing into force Article 279A with effect from 12th September, 2016 was issued on 10th September, 2016.

As per Article 279A of the amended Constitution, the GST Council will be a joint forum of the Centre and the States. This Council shall consist of the following members namely: -

a) Union Finance Minister… Chairperson

b) The Union Minister of State, in-charge of Revenue of finance… Member

c) The Minister In-charge of finance or taxation or any other Minister nominated by each State Government… Members

As per Article 279A (4), the Council will make recommendations to the Union and the States on important issues related to GST, like the goods and services that may be subjected or exempted from GST, model GST Laws, principles that govern Place of Supply, threshold limits, GST rates including the floor rates with bands, special rates for raising additional resources during natural calamities/disasters, special provisions for certain States, etc.

The Union Cabinet in its meeting held on 12th September, 2016 approved setting-up of GST Council and setting-up of its Secretariat. The Cabinet inter alia took decisions for the following:

(a) Creation of the GST Council as per Article 279A of the amended Constitution;

(b) Creation of the GST Council Secretariat, with its office at New Delhi;

(c) Appointment of the Secretary (Revenue) as the Ex-officio Secretary to the GST Council;

(d) Inclusion of the Chairperson, Central Board of Excise and Customs (CBEC), as a permanent invitee (non-voting) to all proceedings of the GST Council;

(e) Create one post of Additional Secretary to the GST Council in the GST Council Secretariat (at the level of Additional Secretary to the Government of India), and four posts of Commissioner in the GST Council Secretariat (at the level of Joint Secretary to the Government of India).

The Cabinet also decided to provide for adequate funds for meeting the recurring and non recurring expenses of the GST Council Secretariat, the entire cost for which shall be borne by the Central Government. The GST Council Secretariat shall be manned by officers taken on deputation from both the Central and State Governments.

The Finance Minister Shri Arun Jaitley has also decided to call the First Meeting of the GST Council on 22nd and 23rd September 2016 in New Delhi. It is a matter of satisfaction for the Government that the steps required in the direction of implementation of GST are being taken ahead of the schedule so far.

CBDT extends 30st September-2016 Returns Filing Due Date to 17th October-2016

Dear Sir / Madam,

CBDT extends 30st September-2016 Returns Filing Due Date to 17th October-2016

Order Under section 119 of the Income tax Act 1961

The last date for making declaration under the income Declaration scheme 2106 is 30th September which coincides with the last date of filling income tax by the tax payers whose accounts are audited and who are required to furnish the returns of income tax for assessment year 2016-2017 by 30th September, 2016 as per provisions of the section 139(1) of income tax Act,1961.

In order to remover inconvenience and to facilitate ease pf compliance, the Central board of Direct Taxes, in exercise of the powers conferred under section 119 of the income tax Act, 1961, hereby extends the due date for furnishing such returns of the income from 30th September, 2016 to 17th October 2016 in case of the tax payers through out India, who are liable to furnish their income tax return by the said due date 

Deepshikha Sharma
Director to the Government of India

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GST Bill- President's Assent

Dear Professional Colleague,

GST Bill gets President's assent – Now becomes a law

The Government's plan to roll out Goods and Services Tax ("GST") from April 1, 2017, has moved an inched closer to the reality with the Hon'ble President Shri. Pranab Mukherjee signing the Government's flagship Constitution (122^nd Amendment) Bill, 2014 on GST ("GST Bill"), just a while ago. The much-awaited GST now becomes a law with President signing the GST Bill after more than 16 States (BJP-ruled Assam being the first one) ratified it.

After being assented by the President, the GST Bill will be enacted as the Constitution (101^st  Amendment) Act, 2016, to pave the way for much-awaited roll out of the landmark tax reform that will create a common national market of 1.25 billion people. GST, the biggest indirect tax reform since independence, is aimed at dismantling Inter-State barriers to trade in goods and services by subsuming a slew of around 17 indirect taxes viz. Excise Duty, Service Tax, VAT, CST, Luxury tax, Entertainment Tax, Entry Tax, etc.

Earlier, the Rajya Sabha has unanimously passed the ambitious GST Bill, as amended with over 2/3 majority on August 3, 2016, followed by its approval by the Lok Sabha on August 8, 2016. The key to forging consensus was the amendments the National Democratic Alliance (NDA) effected in the GST Bill, which importantly included dropping of 1% additional tax on Inter-State sale of goods and a definite provision in the statute for 100% compensating the States for any revenue loss for 5 years, amongst others.

With the President giving his assent to the GST Bill, a GST Council will be set up within 60 days of the enactment of the GST Bill, comprising the Union Finance Minister as Chairman, MOS–Revenue/ Finance and State Finance Ministers as Members of the GST Council, which will make important recommendations on GST rates, Common list of Exempted goods and services, dual control & adjudication, subsumation of surcharge and cesses, etc.Thereafter, following legislations—Central GST (CGST) and Integrated GST (IGST) will have to be passed by Parliament and a State GST (SGST) legislation by each of the State Legislatures.

The States and the Centre are working overtime and talking to stakeholders to draft the CGST, SGST and IGST laws, which are to be passed in the Winter Session of Parliament in November this year. Today is indeed a landmark day for the economy.

CBDT Circular on Foreign Shipping Companies

Streamlining the process of No Objection Certificate (NOC), Port Clearance Certificate (PCC), voyage return and voyage assessment in the case of Foreign Shipping Companies (FSCs)

The CBDT vide Circular No. 30/2016 dt. 26 Aug. 2016 has streamlined the process for 'Port Clearance/ No Objection Certificates and Voyage Return/ Assessment' in the case of Foreign Shipping Companies.

CBDT has received representations regarding procedural difficulties faced by foreign shipping companies in issuance of Port Clearance Certificate (PCC) required as per S. 172 of Income-tax Act, 1961, i.e. a self contained code for assessment of shipping business of non residents.

it has been represented by the FSCs before the CBDT that no uniform practice is being followed by the port Assessing Officers in giving NOC for each voyage and also in making the voyage assessment in this regard. Further it is represented that at some of the ports, annual NOC issued by the jurisdictional AO is being honoured and port clearance and voyage return assessment are being done in a routine manner; whereas at some other ports, the port Assessing officers are not honouring the annual NOC and are still insisting for documentation such as submission of tax residency certificate, proof of effective management etc before the NOC leading to the port clearance is issued. It has been represented that in these cases, the insistence on filing details is leading to duplication of work as these documents have already been filed before and verified by the jurisdictional AO at the time of issue of annual NOC. It has also been stated that the procedure of obtaining NOC from the officer having jurisdiction over the port creates logistical difficulties for FSCs as the Port assessing officer is normally situated at a considerable distance from the jurisdictional AO.

The matter has been examined by the CBDT and requisite guidelines have been issued for streamlining the processes. For details, please refer the CBDT Circular below:

CBDT Circular No. 30/2016 dt. 26 Aug. 2016

Form 15G-H -Date Extended

CBDT extends due date for quarterly furnishing/ uploading of 15G/ 15H declarations

The due date for quarterly furnishing of 15G/ 15H declarations received by the payer from 1 April, 2016 onwards and the manner for dealing with Form 15G/15H received by the payer during the period from 1 Oct. 2015 to 31 Mar. has already been specified by CBDT in Notification No.9/2016 dated 9 June 2016.

The CBDT has extended the due dates for uploading of Form 15G/ 15H received during the period 1 Oct. 2015 to 31 Mar. 2016 and also for the period from 1 April 2016 onwards, based on representations of stakeholders. as under:

Sl. No	Scenarios	Original Due Date	Extended Due Date
1	Form 15G /H received during the period from 1.10.2015 to 31.3.2016	30.06.2016	31.10.2016
2	Form 15G/15H declarations received during the period from 1.4.2016 to 30.6.2016	15.07.2016	31.10.2016
3	Form 15G/15H declarations received during the period from 1.7.2016 to 30.9.2016	15.10.2016	31.12.2016

However, the due dates for furnishing of 15G/ 15H declarations for the quarter ending Dec. 2016 and Mar. 2017 (FY 2016-17) will remain the same as specified in the Notification No.9/2016 dated 9 June 2016.

CBDT Notification No. 10/2016 dt. 31 Aug. 2016

Government issues Clarifications IDS2016

Government issues Clarifications in the form of Sixth Set of Frequently Asked Questions (FAQs) relating to Income Declaration Scheme 2016

MEF online submission date extended

MEF online submission date extended to 10 Sept declaration to reach 20 sept

CBEC ON HIRING

CBEC Clarifies the issue of Service Tax Liability on Hiring of Goods without Transfer of 'Right to Use'of Goods

CBEC issues clarification on service tax liability in case of hiring, leasing, licensing of goods without the transfer of right to use them, as provided u/s 66E(f) of Finance Act; States that in such cases, it is essential to determine whether in terms of the contract, there is transfer of right to use goods and the criteria laid down by SC in BSNL should invariably be followed and applied; SC had inter alia laid down that (i) there must be goods available for delivery, (ii) there must be consensus ad idem as to their identity, (iii) transferee should have legal right to use the goods, (iv) such right should be to the exclusion of the transferor i.e. it should not be merely license to use the goods, and (v) during the period of transfer, owner cannot again transfer the same right to others; Further states that cases decided under Sales Tax / VAT legislations cannot be applied mechanically, they have to be considered against the background of those particular legislative provisions and terms of contract in that case; Some of these cases include Rashtriya Ispat Nigam Ltd, International Travel House Ltd, State Bank of India and G. S. Lamba & Sons; CBEC also cites examples of 'financial lease' & 'operating lease', as well as 'dry leases' & 'wet leases' for aircraft industry, to emphasize the diverse nature of transactions and clarifies that in all these cases, no a priori generalizations or assumptions about service tax liability should be made; Reiterates, "..the terms of the contract should be examined carefully, against the backdrop of the criteria laid down by the Supreme Court in the Bharat Sanchar Nigam Limited case as well as other judicial pronouncements." : CBEC Circular 

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CBEC ON HIRING

CBEC Clarifies the issue of Service Tax Liability on Hiring of Goods without Transfer of 'Right to Use'of Goods

CBEC issues clarification on service tax liability in case of hiring, leasing, licensing of goods without the transfer of right to use them, as provided u/s 66E(f) of Finance Act; States that in such cases, it is essential to determine whether in terms of the contract, there is transfer of right to use goods and the criteria laid down by SC in BSNL should invariably be followed and applied; SC had inter alia laid down that (i) there must be goods available for delivery, (ii) there must be consensus ad idem as to their identity, (iii) transferee should have legal right to use the goods, (iv) such right should be to the exclusion of the transferor i.e. it should not be merely license to use the goods, and (v) during the period of transfer, owner cannot again transfer the same right to others; Further states that cases decided under Sales Tax / VAT legislations cannot be applied mechanically, they have to be considered against the background of those particular legislative provisions and terms of contract in that case; Some of these cases include Rashtriya Ispat Nigam Ltd, International Travel House Ltd, State Bank of India and G. S. Lamba & Sons; CBEC also cites examples of 'financial lease' & 'operating lease', as well as 'dry leases' & 'wet leases' for aircraft industry, to emphasize the diverse nature of transactions and clarifies that in all these cases, no a priori generalizations or assumptions about service tax liability should be made; Reiterates, "..the terms of the contract should be examined carefully, against the backdrop of the criteria laid down by the Supreme Court in the Bharat Sanchar Nigam Limited case as well as other judicial pronouncements." : CBEC Circular 

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Request to provide/update PAN details to avoid blocking of e-filing account by the Income Tax Department. - (24-08-2016)

Request to provide/update PAN details to avoid blocking of e-filing account by the Income Tax Department. - (24-08-2016) Share this page:

It has been noticed that the Income Tax Department has blocked/ disabled the e-Filing account of the members whose correct PAN details are not available with the Department. Upon following with the Income Tax Department, it has been informed that the blocking and disablement of the E-filing Account of the members by them is initially temporary in nature which would be made permanent if correct PAN details are not updated/provided to Income Tax Department which are in synchronisation with the details available with the ICAI. In this regard, members had been earlier requested to submit their correct PAN details with the ICAI vide e-mails in November 2015, December 2015 and also through Announcements dated 20/11/2015, 16/12/2015 hosted at ICAI Website, wherein time limits to update/provide the PAN details were also prescribed. Further in the e-mail dated 6/5/2016 members were requested to update/ provide their PAN details latest upto 14th May 2016.  The Income Tax Department has blocked/ disabled the e-Filing account of the members whose correct PAN details are not available with the Department. In case you are facing any problem in uploading tax audit reports due to non updation of PAN number at ICAI or due to differences in the name as per ICAI record and name given in PAN number, then please go through the link mentioned below to update your details: http://online.icai.org/app_forms/panupdate/index.html You may also file your complaint/ grievance at mss@icai.in and/or dtc@icai.in for resolving the same. We would like to inform that ICAI is taking up the matter to resolve the issue with department on top priority basis and the members are requested to update/provide their PAN details by filling requisite details by clicking above link at the earliest but latest by 26.08.2016.

DSC on MCA portal because your name in the PAN card is not as per the ICAI

Dear Member,

Greetings from ICAI

In case you are unable to register your DSC on MCA portal because your name in the PAN card is not as per the ICAI records, you may send fill up the form in the given link :-  
http://online.icai.org/app_forms/panupdate/index.html

And kindly attach a scanned copy of your PAN card along with copy of any of the documents in which your name is as in your PAN card

Passport
Aadhar Card
Driving License
Bank passbook with a photo affixed and duly signed by the bank
Voters' Identity card

This will enable us to carry out the necessary alignment to ICAI records to share the same to MCA for their further actions.

Secretary
ICAI

IDS-Indexed Stamp Duty Value

CBDT Notification Reg Adoption Of Indexed Stamp Duty Value For Income Declaration Scheme

 

The CBDT has issued a Notification dated 17th August 2016 by which Rule 3(1)(d) of the Income Declaration Scheme Rules 2016 have been amended to provide that where the acquisition of immovable property by the declarant is evidenced by a deed registered with any authority of a State Government, the fair market value of such property shall, at the option of the declarant, may be taken on the stamp duty value as increased by the same proportion as Cost Inflation Index for the year 2016-17 bears to the Cost Inflation Index for the year in which the property was registered.

IDS Amendment

CBDT Notification on 'Income Declaration Scheme (Second Amendment) Rules, 2016' with Revised 'IDS Form 3'

CBDT has notified Income Declaration Scheme, (Second Amendment) Rules, 2016 primarily to revise Form 3 to specify details of payments made under the IDS 2016, as under:

S.O. 2705(E).— In exercise of the powers conferred by sub-section (1) and sub-section (2) of section 199 of the Finance Act, 2016 (28 of 2016), the Central Board of Direct Taxes, makes the following rules further to amend the Income Declaration Scheme Rules, 2016 (hereinafter referred to as the principal rules) namely:-

1. (1) These rules may be called the Income Declaration Scheme, (Second Amendment) Rules, 2016. (2) These rules shall come into force from the date of their publication in the Official Gazette.

2. In the principal rules, in rule 4, in sub-rule (5), after the words "submission of proof of", insert the words "full and
final".

3. In the principal rules, in Form-2, after the table, for the portion beginning with the words "The declarant is hereby
directed" and ending with the words "shall be deemed never to have been made." the following shall be substituted,
namely:-

"The declarant is hereby directed to make the payment of sum payable as per column (5) of the above table, as specified below:-

(i) an amount not less than twenty-five per cent. of the sum payable on or before 30th day of November, 2016;

(ii) an amount not less than fifty per cent. of the sum payable as reduced by the amount paid under clause (i) above on or before 31st day of March, 2017;

(iii) the whole of the sum payable as reduced by the amount paid under clause (i) and (ii) above on or before 30th day of September, 2017.

In case of non-payment of the amount as specified above, the declaration under Form-1 shall be treated as void and shall be deemed never to have been made.".

4. In the principal rules for Form-3, the following Form shall be substituted, namely:-

"INTIMATION OF PAYMENT UNDER SUB-SECTION (1) OF SECTION 187 OF THE FINANCE ACT, 2016 IN
RESPECT OF THE INCOME DECLARATION SCHEME, 2016

THE INCOME DECLARATION SCHEME RULES, 2016

Form 3

[See rule 4(4)]

CBDT Notification No. 70/2016 dt. 12 August, 2016

CBEC Clarification on Freight Forwarders

Service tax on freight forwarders for transportation of goods from India: CBEC Clarification

CBEC has clarified that a freight forwarder, when acting as a principal, will not be liable to pay service tax when the destination of the goods is from a place in India to a place outside India, as under:

CBEC Circular No. 197/7/2016 -Service Tax dt. 12 Aug. 2016

1. The Board has received representations regarding service tax on freight forwarders on transportation of goods from India.

2. It may be noted that in terms of rule 10 of the Place of Provision of Services Rules 2012, (herein after referred to as 'POPS Rules 2012', for brevity) the place of provision of the service of transportation of goods by air/sea, other than by mail or courier, is the destination of the goods. It follows that the place of provision of the service of transportation of goods by air/sea from a place in India to a place outside India, will be a place outside the taxable territory and hence not liable to service tax. The provisions of rule 9 of the POPS Rules 2012, should also be kept in mind wherein the place of provision of intermediary services is the location of the service provider. An intermediary has been defined, inter alia, in rule 2(f) of the POPS Rules 2012, as one who arranges or facilitates the provision of a service or a supply of goods between two or more persons, but does not include a person who provides the main service or supplies the goods on his own account. The contents of the succeeding paragraphs flow from the application of these two rules.

2.1 The freight forwarders may deal with the exporters as an agent of an airline/carrier/ocean liner, as one who merely acts as a sort of booking agent with no responsibility for the actual transportation. It must be noted that in such cases the freight forwarder bears no liability with respect to transportation and any legal proceedings will have to be instituted by the exporters, against the airline/carrier/ocean liner. The freight forwarder merely charges the rate prescribed by the airline/carrier/ocean liner and cannot vary it unless authorized by them. In such cases the freight forwarder may be considered to be an intermediary under rule 2(f) read with rule 9 of POPS since he is merely facilitating the provision of the service of transportation but not providing it on his own account. When the freight forwarder acts as an agent of an air line/carrier/ocean liner, the service of transportation is provided by the air line/carrier/ocean-liner and the freight forwarder is merely an agent and the service of the freight forwarder will be subjected to tax while the service of actual transportation will not be liable for service tax under Rule 10 of POPS.

2.2 The freight forwarders may also act as a principal who is providing the service of transportation of goods, where the destination is outside India. In such cases the freight forwarders are negotiating the terms of freight with the airline/carrier/ocean liner as well as the actual rate with the exporter. The invoice is raised by the freight forwarder on the exporter. In such cases where the freight forwarder is undertaking all the legal responsibility for the transportation of the goods and undertakes all the attendant risks, he is providing the service of transportation of goods, from a place in India to a place outside India. He is bearing all the risks and liability for transportation. In such cases they are not covered under the category of intermediary, which by definition excludes a person who provides a service on his account.

3. It follows therefore that a freight forwarder, when acting as a principal, will not be liable to pay service tax when the destination of the goods is from a place in India to a place outside India.

4. Keeping this in mind, field formations may deal with cases purely on the basis of the facts of the case, the terms of contract between the entities concerned, the provisions of the Finance Act, 1994, the POPS Rules 2012 and other rules.

ICAI Cannot restrict number of audits

Case Name : Shaji Poulose,Chartered Accountant Vs. ICAI (Kerala High Court)

Appeal Number : WP(C).No.25662/2016(G)

Date of Judgement/Order : 03/08/2016

Hon’ble High Court of Kerala has stayed the disciplinary proceedings initiated by ICAI against CA Shaji Poulose for exceeding the limit on number of tax audits.

ICAI Cannot restrict number of audits as it has no power to issue such direction. Only statute can impose restrictions.

MEF will be hosted on 11 Aug

FYI - MEF will be hosted on 11 Aug  around 2 pm  last date 31 Aug .. OPTION of signing MEF digitally will be available.