Case Law on Section 50B

S. 50B applies only to a "sale" for a "monetary consideration" and not to a case of "exchange" of the undertaking for shares under a s. 391/394 scheme of arrangement

The assessee transferred its Lift Division to Tiger Elevators Pvt. Ltd under a scheme of arrangement u/s 391 & 394 of the Companies Act, 1956. The transfer of the undertaking took place in exchange of preference shares and bonds issued by Tiger Elevators as per a valuation report. The assessee claimed that the transfer was not liable to tax on capital gains on the basis that there was no "cost of acquisition" of the undertaking. The AO held that the transaction was a "slump sale" as defined in s. 2(42C) and that the gains had to be computed u/s 50B. This was upheld by the CIT (A). On appeal by the assessee to the Tribunal, the Tribunal accepted the claim of the assessee. On appeal by the department to the High Court HELD dismissing the appeal:

The definition of the term "slump sale" in s. 2(42C) means the transfer of one or more undertakings as a result of the sale for a lump sum consideration without values being assigned to the individual assets and liabilities in such sale. In Motors & General Stores (P) Ltd 66 ITR 692 (SC) it was held that a "sale" meant a transfer for a monetary consideration and that an "exchange" would not amount to a "sale". On facts, scheme of arrangement shows that the transfer of the undertaking took place in exchange for issue of preference shares and bonds. Merely because there was quantification when bonds/preference shares were issued, does not mean that monetary consideration was determined and its discharge was only by way of issue of bonds/preference shares. In other words, this is not a case where the consideration was determined and decided by parties in terms of money but its disbursement was to be in terms of allotment or issue of bonds/preference shares. All the clauses read together and the entire Scheme of Arrangement envisages transfer of the Lift Division not for any monetary consideration. The Scheme does not refer to any monetary consideration for the transfer. The parties were agreed that the assessee was to transfer the undertaking and take bonds/preference shares as consideration. Thus, it was a case of exchange and not a sale. Therefore, s. 2(42C) of the Act was inapplicable. If that was not applicable and was not attracted, then, s. 50B was also inapplicable. The judgement of the Delhi High Court inSRIE Infrastructure Finance Ltd 207 Taxman 74 (Del) is distinguishable on facts. There is no necessity to analyze the circumstances in which s. 50B was inserted in the statute book.

RBI on ECB

Date: May 16, 2014

External Commercial Borrowings (ECB) from Foreign Equity Holder - Simplification of Procedure

RBI/2013-14/594 A.P. (DIR Series) Circular No.130 May 16, 2014 To All Category – I Authorised Dealer Banks Madam/Sir, External Commercial Borrowings (ECB) from Foreign Equity Holder - Simplification of Procedure Attention of Authorised Dealer Category – I (AD Category – I) banks is invited to the A.P. (DIR Series) Circular No. 05 dated August 01, 2005 as amended from time to time relating to the External Commercial Borrowings (ECB). Attention is also invited toA. P. (DIR Series) Circular No. 11 dated September 07, 2011, A.P. (DIR Series) Circular No. 29 dated September 26, 2011, andA.P. (DIR Series) Circular No. 31 dated September 04, 2013. 2. As per the extant ECB policy, ECBs from direct foreign equity holders (FEHs) are considered both under the automatic and the approval routes, as the case may be. ECBs from indirect equity holders and group companies and ECBs from direct FEH for general corporate purpose are, however, considered under the approval route. Further, any request for change of the ECB lender in case of FEH requires RBI's approval. 3. As a measure of simplification of the existing procedure, it has been decided to delegate powers to AD banks to approve the following cases under the automatic route: Proposals for raising ECB by companies belonging to manufacturing, infrastructure, hotels, hospitals and software sectors from indirect equity holders and group companies. Proposals for raising ECB for companies in miscellaneous services from direct / indirect equity holders and group companies. Miscellaneous services mean companies engaged in training activities (but not educational institutes), research and development activities and companies supporting infrastructure sector. Companies doing trading business, companies providing logistics services, financial services and consultancy services are, however, not covered under the facility. Proposals for raising ECB by companies belonging to manufacturing, infrastructure, hotels, hospitals and software sectors for general corporate purpose.ECB for general corporate purpose (which includes working capital financing) is, however, permitted only from direct equity holder. Proposals involving change of lender when the ECB is from FEH – direct / indirect equity holders and group company. 4. All other terms and conditions stipulated in the relative circulars shall continue to be applicable. 5. Other aspects of the ECB policy such as eligible borrower, recognised lender, permitted end-use, amount of ECB, all-in-cost, average maturity period, pre-payment, ECB liability:equity ratio, refinance of existing ECB, reporting arrangements, etc. shall remain unchanged. 6. These changes will come into force with immediate effect. 7. AD Category - I banks may bring the contents of this circular to the notice of their constituents and customers. 8. The directions contained in this circular have been issued under sections 10(4) and 11(1) of the Foreign Exchange Management Act, 1999 (42 of 1999) and are without prejudice to permissions / approvals, if any, required under any other law. Yours faithfully, (Rudra Narayan Kar) Chief General Manager-in-Charge

Dena Bank concurrent Audit

Applications for concurrent audit of Dena Bank for 2014-15
http://www.denabank.co.in/viewdetail.jsp?lang=0&did=139972780868505EA0AEA3057FD38A5D83AFAEE96DB32&id=0,47

NSE-BSE Circuit Rules

NSE-BSE Circuit Rules & Election Counting Timings for 16th may.

If 10% circuit till 1pm then mkt shuts for 45 minutes if 15% circuit till 1pm then mkt shuts for 15 minutes if 20% circuit anytime, mkt closed for the day if 10%circuit from 1-2.3 pm then mkt shuts for 15mins if 15% circuit from 1-2.30 pm then mkt shuts for 45mins if 20% circuit anytime, mkt closed for the day. post 2.30pm , if 10% circuit mkt will continue trading but if 15% post 2.30 pm then closed the day.

### election counting for general election 2014 due to start on 8.00 am on may 16 across 989 counting centres. Trends will be in by 11 am on Friday, final results on 4 pm

Bombay HC on CA 2013

Important Judgement of Hon'ble Bombay High Court with respect to Companies Act, 2013

 

The Hon''ble Bombay High Court has made several important and interesting observations with respect to the Companies Act, 2013, recently on 8th May 2014, in the matter of Godrej Industries Limited. The issue for consideration before the court was whether in view of the provisions of Section 110 of the Companies Act, 2013 and SEBI Circular dated 21st May 2013, a resolution for approval of a Scheme of Amalgamation can be passed by a majority of the equity shareholders casting their votes by postal ballot, which includes voting by electronic means, in complete substitution of an actual meeting. In other words, the issue considered by the Court was whether the 2013 Act, read with various circulars and notifications, has the effect of altogether eliminating the need for an actual meeting being convened. Along with this issue, the Hon'ble High Court also discussed several other matters such as the issue of effectiveness of the rules prescribed by the Ministry of Corporate Affairs ("MCA") under the Companies Act, 2013. Interestingly, amongst the various discussions in the Order, the Court pointed out certain grey areas that persist with respect to the interpretation of the provisions around the issue under discussion. In Para 18 of the order, the Court pointed thus "Far too many grey areas that still persist — the SEBI circular of 17th April 2014 is apparently differed; the Management & Administration Rules are not yet gazetted; Sections 230 and 232 of the 2013 Act are not yet brought into force; there is an apparent conflict between the requirements for a quorum coram and Section 110; it is doubtful whether Section 110 or any SEBI circular mandating exclusive voting by postal ballot can apply to a court- convened meeting.   Discussing the issues, and the considerations around it in much detail, the Court reached the following conclusions: The Court noted that the website of the Ministry of Corporate Affairs has a link to a single scanned PDF file entitled "COMPANIES ACT 2013 - STATEMENT OF NOTIFICATION OF RULES" on its front page where about 21 rules are listed. They are all said to be effective 1st April 2014. Several of these are not yet gazette. The Court Hon'ble Judge expressed his concern as to how such rules can be made effective on a basis where a ministry simply puts up some scanned document under the signature of one of its officers but without any publication in the official gazette. The Court noted that publication is not an idle formality and has fact a well-established legal purpose. That purpose is not and cannot be achieved in such an ad-hoc manner. Therefore, the Court ruled that, till such time as these rules are gazetted, or there is some provision made for the dispensation of official gazette notification, none of the rules in the Ministry of Corporate Affairs PDF document that are not yet gazetted can be said to be in force. The Court concluded that all provisions for compulsory voting by postal ballot and by electronic voting to the exclusion of an actual meeting cannot and do not apply to court-convened meetings. At such meetings, provision must be made for postal ballots and electronic voting, in addition to an actual meeting. Electronic voting must also be made available at the venue of the meeting. Any shareholder who has cast his vote by postal ballot or by electronic voting from a remote location (other than the venue of the meeting) shall not be entitled to vote at the meeting. He or she may, however, attend the meeting and participate in those proceedings. In addition to the above, the Court observed that effect, interpretation and implication of the provisions of the Companies Act, 2013 and the relevant SEBI circulars and notifications, to the extent that they mandate a compulsory or even optional conduct of certain items of business by postal ballot (which includes electronic voting) to the exclusion of an actual meeting are matters that require a fuller consideration. It directed that the Company Registrar shall send an authenticated copy of present order to both the learned Additional Solicitor General and to SEBI requesting them to appear before the Court when this matter is next taken up for a consideration of this issue. Further, the Court laid down that until this issue is fully heard and decided, no authority or any company should insist upon such a postal-ballot-only meeting to the exclusion of an actual meeting.

Concurrent Audit P & bank

FYI - APPLICATION FOR ASSIGNMENT OF CONCURRENT AUDIT FOR CHARTERED ACCOUNTANT FIRM IN PUNJAB & SIND BANK

for online application
https://www.psbindia.com/OnLine_Application_CCA.php

opening date : 12-05-2014
last date :26-05-2014

Supreme Court on Sale and WC

Important principles on distinction between "contract for sale of goods" and "works contract" explained

A Constitutional Bench of 5 Judges of the Supreme Court had to consider whether the law laid down by a three-Judge Bench in State of A.P. v. Kone Elevators (India) Ltd (2005) 3 SCC 389 that a contract for manufacture, supply and installation of lifts in a building is a "contract for sale of goods" and not a "works contract" is correct or not. HELD by the Constitution Bench over-ruling the three-Judge Bench judgement:

(i) In the case of a "contract for sale of goods", the entire sale consideration is taxable under the sales tax or value added tax enactments of the State legislatures. In the case of a "works contract", the consideration paid for the labour and service element has to be excluded from the total consideration received and only the balance is chargeable to sales tax or value added tax;

(ii) Four concepts have clearly emerged from the numerous judgements of the Supreme Court on the point. They are (a) the works contract is an indivisible contract but, by legal fiction, is divided into two parts, one for sale of goods, and the other for supply of labour and services; (b) the concept of "dominant nature test" or, for that matter, the "degree of intention test" or "overwhelming component test" for treating a contract as a works contract is not applicable; (c) the term "works contract" as used in Clause (29A) of Article 366 of the Constitution takes in its sweep all genre of works contract and is not to be narrowly construed to cover one species of contract to provide for labour and service alone; and (d) once the characteristics of works contract are met with in a contract entered into between the parties, any additional obligation incorporated in the contract would not change the nature of the contract;

(iii) The "dominant nature test" or "overwhelming component test" or "the degree of labour and service test" are really not applicable. If the contract is a composite one which falls under the definition of works contracts as engrafted under clause (29A)(b) of Article 366 of the Constitution, the incidental part as regards labour and service pales into total insignificance for the purpose of determining the nature of the contract;

(iv) On facts, the three-Bench judgement erred in taking the view that the major component was the equipment and that the skill and labour employed for converting the main components into the end product were only incidental. The principal logic applied, i.e., the incidental facet of labour and service is not correct because in all the cases, there is a composite contract for the purchase and installation of the lift. The price quoted is a composite one for both. Various technical aspects go into the installation of the lift. There has to be a safety device. In certain States, it is controlled by the legislative enactment and the rules. In certain States, it is not, but the fact remains that a lift is installed on certain norms and parameters keeping in view numerous factors. The installation requires considerable skill and experience. The labour and service element is obvious. The preparatory work has to be done taking into consideration as to how the lift is going to be attached to the building. The nature of the contracts clearly exposit that they are contracts for supply and installation of the lift where labour and service element is involved. Individually manufactured goods such as lift car, motors, ropes, rails, etc. are the components of the lift which are eventually installed at the site for the lift to operate in the building. In constitutional terms, it is transfer either in goods or some other form. In fact, after the goods are assembled and installed with skill and labour at the site, it becomes a permanent fixture of the building. However, if there are two contracts, namely, purchase of the components of the lift from a dealer, it would be a contract for sale and similarly, if separate contract is entered into for installation, that would be a contract for labour and service. But, a pregnant one, which is a composite contract for supply and installation, has to be treated as a works contract, for it is not a sale of goods/chattel simpliciter. It is not chattel sold as chattel or, for that matter, a chattel being attached to another chattel.

Court-Convened Meetings and Postal Ballot

Court-Convened Meetings and Postal Ballot
-Dhananjay Trivedi

Background

 

In one of the first few cases interpreting the provisions of the Companies Act, 2013 (the 2013 Act), the Bombay High Court last week issued its judgment on the use of postal ballot facility at a court-convened meeting to consider a scheme of arrangement. In re Godrej Industries Limited, the court was concerned with a scheme of amalgamation of Wadala Commodities Limited into Godrej Industries Limited under sections 391 to 394 of the Companies Act, 1956 (the 1956 Act).[1] The narrow question at the initial stage for summons for direction to convene the meetings was “whether in view of the provisions of Section 110 of the [the 2013 Act] and SEBI Circular dated 21st May 2013, a resolution for approval of a Scheme of Amalgamation can be passed by a majority of the equity shareholders casting their votes by postal ballot, which includes voting by electronic means, in complete substitution of an actual meeting. In other words, whether the 2013 Act, read with various circulars and notifications, has the effect of altogether eliminating the need for an actual meeting being convened.”

 

The court answered this question in the negative to effectively find that while the mechanism of postal ballot (which includes electronic voting) ought to be offered as an additional facility for voting by shareholders, that cannot do away with the need for conducting a meeting. In arriving at this conclusion, the court considered various aspects of the purpose and conduct of shareholders’ meetings, issues of corporate law and governance contained in the 2013 Act as well as various SEBI 

circulars.

 

Reasoning

 

Even though the issue at hand was quite focused, the opinion of the court rendered by Justice G.S. Patel is elaborate and insightful on various legal and practical matters involving shareholder rights and corporate democracy (and hence I have taken the liberty of extracting some of the important observations). Some of the key issues considered are as follows:

 

Purpose and Importance of a Meeting

 

One consideration before the court was whether the purpose of corporate democracy is to simply permit shareholders to cast their vote or whether it was still important to hold a meeting of shareholders so as to enable them to deliberate on the issues and express their opinions. If deliberation is a crucial aspect of corporate democracy, then even where a postal ballot is provided for it is not possible to avoid a meeting altogether. The court expressed its views in the following manner:

 

We must remember that at the heart of corporate governance lies transparency and a well-established principle of indoor democracy that gives shareholders qualified, yet definite and vital rights in matters relating to the functioning of the company in which they hold equity. Principal among these, to my mind, is not merely a right to vote on any particular item of business, so much as the right to use the vote as an expression of an informed decision. That necessarily means that the shareholder has an inalienable right to ask questions, seek clarifications and receive responses before he decides which way he will vote. It may often happen that a shareholder is undecided on any particular item of business. At a meeting of shareholders, he may, on hearing a fellow shareholder who raises a question, or on hearing an explanation from a director, finally make up his mind. In other cases, he may hold strong views and may desire to convince others of his convictions. This may be in relation to matters that are not immediately obvious to the shareholder merely on receipt of written information or a notice. The right to persuade and the right to be persuaded are, as I see it, of vital importance. In an effort for greater inclusiveness, these rights cannot be altogether defenestrated. To say, therefore, that no meeting is required and that the shareholder must cast his vote only on the basis of the information that has been send to him by post or email seems to me to be completely contrary to the legislative intent and spirit to the express terms of the SEBI circular and amended Listing Agreement’s Clauses 35B and 49.

 

Hence, the purpose of shareholder democracy is not simply to exercise franchise but to meet, deliberate, persuade and be persuaded as a collective, which is possible only when the facility of a meeting is provided, and not simply when each shareholder casts a ballot in isolation without interaction.

 

Possibility of Amendments

 

An important aspect of shareholder right is the ability to propose amendments to resolutions put forth at a meeting. The court found that if the only facility provided is postal ballot without a shareholders’ meeting, then it would take away the power of directors or shareholders to propose amendments, as a result of which the resolution can only be put to vote as originally proposed. This is not desirable. The schemes of both the 1956 Act as well as the 2013 Act provide that schemes are “subject not only to approval by voting but also, possibly, to an amendment at the meeting itself”. The ability to decide upon the scheme along with amendments is important for achieving a meeting of minds, especially on crucial matters such as the share exchange ratio.

 

Broader Corporate Governance Concerns

 

The court also expressed its views on the broader governance impact that necessitates greater shareholder participation in companies, especially on crucial matters such as amalgamations.

 

Nothing could be more detrimental to shareholders’ rights than stripping them of the right to question, the right to debate, the right to seek clarification; and, above all, the right to choose, and to choose wisely. A vote is an expression of an opinion. That vote must reflect an informed decision. Dialogue and discourse are fundamental to the making of every such informed decision. [Counsel’s] submission seems to me to relegate shareholders, in the guise of greater inclusiveness, to a very distant second place in the scheme of corporate governance, seeing them merely as a necessary evil. Nothing could be further from the mandate of corporate law and governance. We strive today to greater transparency; that means that more should be given the opportunity to speak and to exercise their rights as shareholders. But that cannot come at the price of their right to speak, to be heard, to persuade, even to cajole. What corporate governance demands is the government of the tongue, not the tyranny of a finger pressing a button.

 

Electronic Voting at the Meeting

 

The court held that the facility of electronic voting must be made available at the meeting itself for those who wish to attend and vote at the meeting. In other words, electronic voting is not limited only to those who are unable or unwilling to attend the meeting. The objective behind this situation is that “[g]reater inclusiveness demands the provision of greater facilities, not less; and certainly not the apparent giving of one ‘facility’ while taking away a right.” Based on the court’s reasoning, the voting options available to shareholders are as follows:

 

1.         Shareholders may exercise their votes through postal ballot or electronic votes in advance and not attend the physical meeting;

 

2.         Shareholders may exercise their votes through postal ballot or electronic votes in advance and nevertheless attend and speak at the physical meeting so as to be able to persuade the other shareholders as to their point of view on matters discussed at the meeting (but they cannot vote again at the meeting);

 

3.         Shareholders may attend and speak at the meetings, and then vote electronically at the meeting itself.

 

This way, there could be a “single integrated system of voting” for all shareholders who exercise their votes, whether or not they attend the meeting.

 

Notification of Rules under the 2013 Act

 

Finally, the court was confronted with some procedural issues relating to the notification of various provisions of the 2013 Act as well as the Rules thereunder. It observed:

 

A final word about the manner in which these rules and sections are purportedly being brought into force. The website of the Ministry of Corporate Affairs has, on its front page, a link to a single scanned PDF file entitled “COMPANIES ACT 2013 - STATEMENT OF NOTIFICATION OF RULES”. Some 21 rules are listed. They are all said to be effective 1st April 2014. Several of these are not yet gazetted; at least I have not been able to find any gazette. I do not see how any such rules can be made effective on this basis where a ministry simply puts up some scanned document under the signature of one of its officers but sans any publication in the official gazette. That publication is not an idle formality. It has a well-established legal purpose. That purpose is not and cannot be achieved in this ad-hoc manner. Therefore, till such time as these rules are gazetted, or there is some provision made for the dispensation of official gazette notification, none of the rules in the Ministry of Corporate Affairs PDF document that are not yet gazetted can be said to be in force. [footnotes omitted]

 

These are significant questions, which will require urgent attention of the Ministry of Corporate Affairs (MCA).

 

Analysis

 

The judgment of the Bombay High Court is a significant one as it clarifies the rights of shareholders to attend and vote for (or against) resolutions proposed by the company, especially in the case of court-convened meetings for schemes of arrangement (and amalgamation). The courts grants wide amplitude to shareholder franchise and re-emphasises that the methods of voting are a facility provided to shareholders that cannot be circumscribed. Moreover, it highlights the importance of deliberations at a general meeting and the power of persuasion, both of which cannot be treated as empty formalities. This judgment also provides further impetus to shareholder participation in corporate decision-making, which is an important component of the overall phenomenon of shareholder activism, which is gaining ample momentum in the Indian context.

 

Furthermore, the judgment also raises questions regarding the implementation of the 2013 Act and highlights some key gaps such as the notification of the Rules. Such matters require urgent regulatory attention.

 

Although the judgment is only at the initial stage of summons for directors (for convening class meetings in a scheme of amalgamation), it raises significant issues that are pertinent more generally to similar cases. The fact that the court has observed that the matter requires fuller consideration and has sought to hear various interested parties such as the Registrar of Companies, the Central Government (through the Additional Solicitor General) and SEBI suggests that the issues will be subject to still further scrutiny. The wider ramifications of the judgment are evident in the observations of the court that “[o]n a prima-facie view that the elimination of all shareholder participation at an actual meeting is anathema to some of the most vital of shareholders’ rights, it is strongly recommended that till this issue is fully heard and decided, no authority or any company should insist upon such a postal-ballot-only meeting to the exclusion of an actual meeting.” 

 

[1] The scheme was considered under these provisions of the previous 1956 Act as they continue to be in force. The equivalent provisions of sections 230 and 232 of the new 2013 Act are yet to come into force.

Power to quick inquiry to regional director

FYI - The Ministry of Corporate Affairs Vide its circular dated 07/05/2014   has empowered the Registrar/ Regional Director to conduct quick inquiry against professionals and officers where  it is observed that any e-Form/document/information/application certified   contains incomplete information, false or misleading information or omission of material information.

​ The said circular further states that cases shall be referred by the ​Registrar/ Regional Director to the e governance cell of the MCA which shall also refer the case to the concerned institute  for conducting disciplinary proceedings as well as debar the errant  professional from filing any document on the MCA Portal.

“National Judicial Reference System” (NJRS).

FYI - The CBDT has announced the setting up of a “National Judicial Reference System” (NJRS).

The NJRS comprises of two components, the “Appeals repository and Management System” and the “Judicial Research and Reference System”.

The Appeals repository is a database of all appeals pending in the ITAT, High Court and Supreme Court.

The Judicial Research and Reference System is a database of all decisions of the ITAT, High Courts & the Supreme Court. The cases will be indexed, searchable and cross-linked. The database will also have the relevant statutory enactments, circulars etc.

It is expected that the NJRS will go-live by November/ December 2014.

Real Estate heading downfall?

"Mumbai has maximum inventory of unsold homes at 155.27 million sq feet I.e approximately 250000 houses which is equivalent to 40 months of unsold inventory. Unsold inventory denotes the number of months required to clear the stock at the existing absorption rate. An ideal scenario implies inventory should be in a range of 8 to 10 months. But Mumbai will take 4 years to sell these houses despite a slew of discount rates, new launches and back room negotiations. Same is the situation in NCR , Chennai , Kolkata, Banglore and Tier II cities. Builder's face crash crunch after RBI put brakes on 20:80 Ponzi scheme. This crisis will worse post 16 May if there is Hung Parliament.  India to expect big real estate crash in next 6 to 10 months.".... Dean Baker   ....renowned Economist who predicted 2008 US crisis. His advice to indian consumers ...."Indian consumers should be smart to defer their decision on investing in real estate ....and be greedy to sell their current exposure in real estate"Please forward this message to all your friends and family members.

Misuse of PAN from Tatkal

Don't give PAN number for railway Tatkal booking as proof of ID.

The Railways display the PAN. name, sex and age of passengers on reservation charts pasted on railway compartments.

This is a boon for benami transactions. It is mandatory for traders like jewelers to collect tax (TCS) from customers on purchase of jewelry worth Rs 5 lakh & bullion worth Rs 2 lakh.

While complying with TCS rules for collection, payment and uploading of TCS information (e-filing of TDS returns) jewellers have to furnish PAN of customers. For certain customers it is not convenient to provide PAN.

To accommodate high net worth customers, traders have a easy source of benami PAN numbers, name, sex and age from reserved railway compartments. A traveller recently noticed a chap copying PAN particulars along with name, age and sex pasted on reserved compartments, and when confronted with the help of railway police, he admitted that he gets Rs 10 per PAN particulars from jewellers. These persons are copying PAN information of senior citizens, women etc from sleeper class with the intention that passengers in sleeper class are not serious tax payers and generally salaried class.

This wrong usage of a PAN number is known only to the regular tax payers, who regularly check their tax credit on form 26 AS provided by the Income Tax department on their website.

This form 26AS is updated only on filing of e-TDS returns by the traders. There is almost 6-12 months time delay for the PAN holder to know that a transaction of above nature has taken place on his name and that too only if he goes through form 26 AS.

On noticing the tax credit of above nature while reconciling form 26 AS for tax credits for filing the return during subsequent financial year i.e. July / September, the tax payer has an option to exclude the same and go ahead in filing the return.

In that case the department will first initiate action from the tax payer's side asking him to explain the sources of money for the above transaction done in his name and also to prove that he has not carried on the above transaction.

The onus lies on the genuine tax payer for the fault committed by the traders.

This dispute may even take more than 2 years to be settled.

In conclusion, the only way to protect yourself from these fraudulent transactions, is to avoid quoting PAN details for identity proof at any source except for income tax related matters for which your Government had issued for.

You may quote your driving licence #, Voter ID # etc as your ID Proof but definitely not your PAN.



NO VAT on 40% of Restaurant Bill

VAT not leviable on 40% of the restaurant bill, which is subject to service tax

 

 

In the recent decision of the Uttarakhand High Court, in the case of Valley Hotels & Resorts vs. The Commissioner, Commercial Tax, Dehradun [TS-129-HC2014 (UTT)-VAT].

The High Court allowed the revision application filed by the assessee and held that, where the element of service has been declared and brought to tax vide notification dated 6 June 2012, by which Service tax is levied on 40% of the billed value in restaurant, no VAT can be imposed thereon.

The issue of double taxation seems to have been addressed and it has been held that VAT cannot be imposed on that portion of the restaurant bill, which has already suffered Service tax.

Sec 234E-Bombay HC Stay Order

S. 234E: High Court grants ad-interim stay against operation of notices levying fee for failure to file TDS statement

S. 234E of the Income-tax Act, 1961 inserted by the Finance Act, 2012 provides for levy of a fee of Rs. 200/- for each day's delay in filing the statement of Tax Deducted at Source (TDS) or Tax Collected at Source (TCS). A Writ Petition to challenge the validity of s. 234E has been filed in the Bombay High Court. The Petition claims that assessees who are deducting tax at source are discharging an administrative function of the department and that they are a "honorary agent" of the department. It is stated that this obligation is onerous in nature and that there are already numerous penalties prescribed for a default. It is stated that the fee now levied by s. 234E is "exponentially harsh and burdensome" and also "deceitful, atrocious and obnoxious". It is also claimed that Parliament does not have the jurisdiction or competence to impose such a levy on tax-payers.

The Bombay High Court has, vide order dated 28.04.2014, granted ad-interim stay in terms of prayer clause (d) i.e. stayed the operation of the impugned notices levying the fee.

See also Narath Mapila LP School vs. UOI (Ker), Adithya Bizorp Solutions India vs. UOI (Kar) & Om Prakash Dhoot vs. UOI (Raj) where similar interim orders of stay have been passed. The CBDT has vide Circular No. 07/2014 dated 04.03.2014 extended the due date of filing of the TDS/TCS statement for Government deductors

Rashmikant Kundalia vs. UOI (Bombay High Court)

crossed cheque and account payee cheque

FYI - Rajmoti Industries vs. ACIT (Gujarat High Court)

S. 40A(3): There is a difference between “crossed cheque” and “account payee cheque”. Payment by crossed cheque attracts s. 40A(3) disallowance

FATCA

The Foreign Account Tax Compliance Act (FATCA), enacted in 2010 by US Government, aims to check and impose withholding tax on illicit activities of US taxpayers who use offshore accounts to evade taxes. The final FATCA regulations, issued in January 2013, are set to come into effect from July 1, 2014 after signing of Intergovernmental Agreements (IGA) with different countries. On April 11, 2014, India reached an agreement 'in substance' with USA on FATCA.

Resolutions to be proposed at the ensuing AGM

Friends pl add on to do list immediately after 28th April

Resolutions to be proposed at the ensuing AGM

1)      Increase in borrowing limit and creation of charge - S/180 (I) (c) & 180 (I) (a)

2)      Accepting Public Deposits - S/73 & 76

3)      Change/ Alteration in AOA –Adopt Table F

4)      Invt. in other body Corporates - S/186

5)      Appointment of Branch Auditors (Dubai Branch)

6)      Related Party transactions, if any - S/188

7)      Appointment of Auditors – Within 3yrs of notification S/139 (2)

8)      Issue of Securities (CPs etc) on Pvt. Placement - S/42

9)      Appt of CFO & other KMPs - Board approval as 203

10)   Fixing Remuneration of KMPS - Board approval as 203

11)   Appt. of independent directors - S/149(10) to (12)

Actions immediately to be taken on  notification of the Act

1)      Identify related parties – To be notified to a/cs and SAP team

2)      Print new Business letters, bills etc with CIN no. – s/12(3) (c)

3)      Devise CSR policy & spending – s/135

4)      Adopt new Whistle Blower Policy – Vigil mechanism – 177(10)

5)      File Return on Public Deposits within 3 months – 74(1)

6)      Return on change in Top 10 shareholders – within 15 days -  S/93

7)      To obtain positive consent for receiving documents by email (S/101)

8)      Obtain certificate of Independence from Directors S/149 (7)

10)   Terms of reference of Audit committee –Additional items to be placed before audit committee at each meeting - S/177 (4)

11)   Nomination & Remuneration policy to be approved by Board – S/178 (3) & (2)

12)   Terms of reference of Stakeholder committee – Additional items to be placed before the Committee - S/178 (6)

13)   Devise Code for independent Directors – Schedule IV

14)   Observe Secretarial standards for Board & General meetings S/118 (10)

15)   Reconstitute Board (within 1year)– for (i) appl. of ID’s for 5yrs (ii) not liable to retire by rotation –S/149 (10) to (13)

16)   Maintain Register of KMPs - S/170

17)   Can pay sitting fees upto Rs. 1lakh S/197 (5)

18)   Check the compliance required by unlisted Public companies (if paid-up/networth exceed prescribed limits)- refer Annexure (will be circulated separately)

Additional compliances

1)      To attend at least 1 Board Meeting in 12 months or vacate office S/167 (1) (b)

2)      Change in top 10 shareholders S/93

3)      File Board Resolutions passed  U/S 179

4)      File Report on AGM – S/121

5)      Postal Ballot Applicable to Pvt. Cos – S/110

6)      Directors Responsibility Statement – Clause  (e) & (f) of S/134 (5) have laid down adequate “internal financial controls” (defined in the Act) – To devise policy on internal financial controls.

7)      Auditors – Appoint for 5yrs – Existing limit to be considered S/139 (2) – Ratification every year

8)      To inform auditor & ROC about appointment within 15 days – S/139

9)      Relative of auditor not to hold shares in excess of Rs. 1lakh S/141

SEBI INTRODUCED amendments to clause 35B (E-voting facility) and clause 49 (Corporate Governance)

SEBI has pursuant to a master circular issued today, introduced amendments to clause 35B (E-voting facility) and clause 49 (Corporate Governance) of the equity listing agreement. The master circular will supersede all other earlier circulars issued by SEBI on Clauses 35B and 49 of the Equity Listing Agreement. The revised Clause 35B would be applicable to all listed companies and the modalities would be governed by the provisions of Companies (Management and Administration) Rules, 2014.

Following are some of the highlights of the revised Clause 49:

1.       Applicability

a)      To all listed companies with effect from 1 October 2014.

b)      The provisions of Clause 49(VI)(C) [constitution of risk management committee] will be applicable to top 100 listed companies by market capitalisation as at the end of the immediate previous financial year.

2.       Related Party Transactions i.e. a transfer of resources, services or obligations between a company and a related party, regardless of whether a price is charged:

a)      Applicable to all prospective transactions.

b)      A “related party” is a person or entity that is related to the company. Parties are considered to be related, if one party has the ability to control the other party or exercise significant influence over the other party, directly or indirectly, in making financial and/or operating decisions and includes certain specified entities.

c)       Company is obliged to formulate a policy on materiality of related party transactions and also on dealing with Related Party Transactions.

d)      A transaction with a related party will be considered material, if the transaction / transactions to be entered into individually or taken together with previous transactions during a financial year, exceeds five percent (5%) of the annual turnover or twenty percent (20%) of the net worth of the company as per the last audited financial statements of the company, whichever is higher.

e)      All Related Party Transactions will require prior approval of the Audit Committee.

f)       All material Related Party Transactions will require approval of the shareholders through special resolution and the related parties will have to abstain from voting on such resolutions.

g)      Details of all material transactions with related parties will have to be disclosed quarterly along with the compliance report on corporate governance.

h)      All existing material related party contracts or arrangements as on the date of this circular which are likely to continue beyond March 31, 2015 will have to be placed for approval of the shareholders in the first General Meeting subsequent to 1 October 2014. A company may choose to get such contracts approved by the shareholders even before 1 October 2014.

Equal treatment of all shareholders

3.       Companies are obliged to provide equal treatment to all shareholders including minority and foreign shareholders.

Whistle blower mechanism

4.       Companies will have to establish a whistle blower mechanism.

Accounting standards

5.       Implement the prescribed accounting standards in letter and spirit in the preparation of financial statements taking into consideration the interest of all stakeholders.

Disclosure of interest by board and key executives

6.       Members of the Board and key executives are obliged to disclose to the board whether they, directly, indirectly or on behalf of third parties, have a material interest in any transaction or matter directly affecting the company.

Woman director and Independent director

7.       Mandatory appointment of a woman director and independent directors.

8.       An independent director cannot act as such in more than seven listed companies.

9.       Any person who is serving as a whole time director in any listed company cannot serve as an independent director in more than three listed companies.

10.   An independent director can hold office for a term up to five consecutive years

CBDT on Roads-BOT

Important CBDT Circular On Depreciation/ Amortisation Of Intangible Assets

The CBDT has issued Circular No. 09/2014 dated 23.04.2014 in which it has dealt with the important issue of treatment of expenditure incurred for development of roads & highways in Build-Own-Transfer (BOT) agreements.

The CBDT has expressed the view that as the assessee does not hold any rights in the project except recovery of toll fee to recoup the expenditure incurred, the assessee cannot be treated as the "owner" of the property and cannot be allowed depreciation u/s 32(1)(ii) of the Act.

However, the CBDT has also held, following the law laid down in Madras Industrial Investment Corp 225 ITR 802 (SC), that the entire cost of construction and development of the infrastructure facility has to be amortized evenly over the period of the concessionaire agreement and allowed as business expenditure u/s 37(1) of the Act.

The CBDT's view with regard to the assessee not being the "owner" runs counter to the law laid down in Noida Toll Bridge 213 Taxman 333 and several other judgements. In Swarna Tollway, the ITAT has conducted a thorough analysis of the entire law on the subject and concluded that the assessee has to be treated as the "owner" even though it has limited rights on the structure. The Tribunal relied on several judgements of the Supreme Court including Mysore Minerals 239 ITR 775 (SC) where the concept of "owner" has been considered in great detail.

Unfortunately, the CBDT has not applied its mind these aspects and come to a conclusion in a summary manner.

It is well settled that a Circular which is contrary to the law has no binding effect (seeDeath of a Circular).

However, the CBDT's directive that the expenditure should be amortized and allowed as business expenditure is welcome.

Regards,

VMVSR

SEBI's New Corporate Governance Norms

SEBI's New Corporate Governance Norms: A more transparent roadmap for Listed Entities

In a step towards ensuring lucidity in the regime, the Capital Market Regulator, SEBI, has floated new Corporate Governance Norms and revised Clause 35B with the basic premise of promoting interest of varied stakeholders on one hand and aligning the provisions of extant Clause 49 of the Listing Agreement with the Companies Act, 2013 on the other.

The new norms aim to intensify the corporate governance framework for listed companies in India and are considered as a step forward to increment harmonisation in SEBI & MCA laws. 

The main highlights are outlined as follows:

• Amendment in Clause 35B in line with the Section 108 of the Act read with Rule 20 of Companies (Management and Administration) Rules, 2014, thereby casting a mandate on all the listed Companies for the mandatory electronic voting facility to all the members of the Company to exercise their right to vote on the resolutions which the company intends to pass, at the general meetings through electronic means. As per the extant SEBI Circular, only top 500 Listed Companies are mandatorily required to give e-voting facility to the members.
• In line with Section 149 (6) of the Act, now the Nominee Directors have been excluded from the definition of Independent Directors.
• In line with the provisions of vigil mechanism as specified in section 177 (9) of the Act, SEBI has mandated whistle blower mechanism in every listed company. Under the extant Cl 49, its a non mandatory requirement.
• Role of audit committee has been extended and its roots are made widespread. This is very categorically reflected in the provisions of the new Clause, which has expanded the role of audit committee.
• Stock options have been prohibited for independent director to protect their independence in real sense, in alignment with section 197 of the Act.
• Broadened the ambit of Independent Directors as compared with the extant arena of Independent Directors
• Board has also mandated for separate meeting for independent directors. This is also in line with the provisions of the Act. The Act also provides for atleast one separate meeting of independent director without attendance of non-independent director and members of management in a year. The intent is to provide the independent directors an opportunity to formulate the action plans to guide and drive themselves and to establish a better coordination between them because the Act poses enhanced responsibility on the independent directors.
• A listed company is a type of corporate entity which deals with public at large in a wider way than the others do, so it is the need of the hour to have a committee to maintain relations with stakeholders, hence the requirement of Stakeholders Relationship Committee has been provided by SEBI. SEBI has also mandated for mandatory Nomination Committee, with the Chairman being Independent, which under the extant Clause is a non mandatory requirement.
• The Act has posed the requirement of performance evaluation of Directors on nomination and remuneration committee. In lines with the said provision, SEBI has also mandated for evaluation of performance of independent directors and board of directors in a listed company.
• As per the amendment, in all listed companies, any RPT is to be priorly approved by the audit committee. In addition, all material RPTs are to be approved by the shareholders, by way of special resolution, with the related parties being abstained from voting.  In this regard, SEBI has clearly defined what will tantamount to RPTs and material RPTs.
• In addition, the four walls of RPTs have also been widened to include the elements of Accounting Standards and Companies Act 2013 as well. 
• All listed companies to have at least one woman director on their Boards. 
• SEBI by taking stricter view has specified the maximum number of boards an independent director can serve on listed companies, which is restricted to 7. This number has further been reduced to 3, in case the person is serving as a whole time director in a listed company. 
• SEBI has prescribed the maximum tenure of five consecutive years for the Independent Directors that can be further extended to another term of upto five consecutive years subject to shareholders' approval by way of special resolution. Further, after the expiration of the term or extended term, such independent director shall be eligible for being appointed as an independent director only after expiration of 3 years of ceasing to be an independent director.
• Bodies Corporate which are subject to regulations under other statutes (e.g. banks, financial institutions, insurance companies, etc.) are required to comply with the new norms to the extent that it does not violate the provisions of their respective statutes. However, the Mutual Funds are exempt from the applicability of such new norms.
• In addition to the above mentioned mandates, the Board has also included the specific provisions related to the following:
• Policy on dealing with RPTs
• Enhanced Disclosure requirements related to remuneration of directors
• Divestment of material subsidiaries
• Disclosure of letter of appointment of independent directors along with their detailed profile
• Policy on Risk management
• Mandatory requirement to formulate Risk management Committee is only on top 100 listed entities by market capitalisation.
• Providing training to independent directors
• Boards of Companies have to satisfy themselves that plans are in place for orderly succession for appointments to the board and senior management.

 

 

 

All the above said requirements as amended by the SEBI shall be made applicable to the listed companies' with effect from October 01, 2014 and accordingly, all existing material related party contracts or arrangements as on the date of this circular which are likely to continue beyond March 31, 2015 shall be placed for approval of the shareholders in the first General Meeting subsequent to October 01, 2014 or even before the said date.  

Comments:

Undoubtedly, the new norms will ensure more transparency in the day to today workings of listed entities but the roadmap ahead for the listed companies as well as for the Independent Directors is not simple as the new Corporate Governance Norms prescribes a stringent regime.