www.ebiz.gov.in

Now, access 11 new services on eBiz portal

Setting up a business in India may have just become a tad easier. Rather than visit various offices or websites, investors can now get as many as 14 services, ranging from submission of forms to obtaining licences, on the eBiz single-window portal.

The Department of Industrial Policy and Promotion (DIPP) has announced the launch of 11 Central services on the eBiz Government-to-Business portal spread across ministries and institutions. This takes the total number of such services to 14.

The services that have been integrated include four from the Corporate Affairs Ministry, two from the Reserve Bank of India, two from Central Board Of Direct Taxation, and one each from the Directorate-General of Foreign Trade, Employees' Provident Fund Organisation and the Petroleum & Explosives Safety Organisation.

At present, it takes about six months and 20 visits to various departments for an investor to get the mandatory clearances for starting a business, according to the DIPP.

The eBiz portal seeks to bring down the time and cost required to get the clearances and also significantly cuts down on legwork.

Commerce and Industry Minister Nirmala Sitharaman said: "The eBiz platform will now (with the integration of 14 services) provide end-to-end online submission and process of forms, including tracking and online payment. It strives to achieve horizontal integration across various verticals of the Centre, State and para-statal agencies."

India is hopeful that the project will help it to move up the World Bank's 'ease of doing business index', where it was ranked a low 142 among a total of 189 countries last year.

"We will try to ensure that more than 200 services related to investors and businesses will be rolled out across the country over the next few years," DIPP Secretary Amitabh Kant said.

The first three years following the launch of eBiz would be the pilot phase during which 50 services will be implemented across 10 States, including Andhra Pradesh, Delhi, Haryana, Maharashtra, Tamil Nadu, Odisha, Punjab, Rajasthan and West Bengal.

 

Frequently Asked Questions

1. How do I get started? Answer: Prior to invoking any of the services, you must first register with eBiz. Registration is a two step process. You first need to register yourself as an individual and get yourself a Login account. User registration will enable to invoke some services that are not linked to a Business - Name Availability etc.. The second step is to register your business. This would enable you to access the complete set of eBiz services such as Registering with various Tax and other Regulatory agencies, Apply for utility connections and services related to Regulatory filings. 2. Is there a fee for registration? Answer: No - there is no fee for registering on eBiz. Fees are applicable when you start applying for services. The fee will be dependent on the service availed.   3. What to do if I didn't receive an email confirmation after registration? Answer: On registration, an email confirmation is sent. In case you have not received the email confirmation, you may do the following - 1. Please check whether the email has been saved under your Trash / Spam folder. This may happen because of your email account settings. 2. In case your mailbox is full and the mail has bounced, please clear your mailbox and send a mail to ebizsupport-lndc@nic.inwith your login details and a confirmation mail will be sent to you. 3. In case the email address provided by you is incorrect, please log in and change the details. Then send a mail to ebizsupport-lndc@nic.in with your login details and a confirmation mail will be sent to you. 4. How do I provide Feedback? Answer: You may provide feedback about the site and its functionality through email. Please mail your feedback to ebizfeedback-lndc@nic.in.   5.How many services are enabled on eBiz? Answer: In the current release, two DIPP services (IL and IEM) have been enabled on eBiz. The portfolio of services will be soon expanded to include additional services and states.   6. How do I pay the fees when invoking these services? Answer: eBiz is integrated with an electronic payment gateway. You can make payment towards the services online using your net banking facilities or offline payment (after generating challan on eBiz portal) by visiting any 'Central Bank of India' branch.   7. After applying for the service through eBiz, how do I know the status of my application? Do I need to contact the departments for status update? Answer: eBiz is integrated with department systems and processes. Hence you will receive the status updates on your application on the eBiz portal. You can use the status page on the eBiz portal to learn the status of your application and also respond to any queries/clarifications raised by the department. 8. How can I update/change my personal information? Answer: Personal information can be edited by logging in to eBiz website and editing the details present in the 'My details' section. These changes will get reflected in the system once you login the next time.   9. What happens if I forget my username and / or password? Answer: In case you forget your username and / or password, please visit the 'Forgot Password' link to retrieve your login details. An email with your login details will be sent to your registered email address.   10. What information do you need when I begin to register? Answer: In case of individual member registration, details such as name, date of birth, email address, telephone number etc. are required. In case of a business registration, details such as name of the establishment, address, email address etc. are required.

 

Pan-India Services

1. Industrial Licence	2. Industrial Entrepreneur Memorandum	3 Employer Registration with ESIC
4. MCA Name Availability	5.MCADirector Identification Number	6.Certificate of Incorporation
7.Certificatefor Commencement of Business	8. Reporting of Advance Foreign Remittance	9• Reporting of FC-GPR
10. Issue of Permanent Account Number-NSDL	11. Issue of Permanent Account Number-UTIITSL	12. Issue of Tax Deduction & Collection Account Number
13• Employer Registration with EPFO	14• Issue of Importer Exporter Code	15• License for Possession and Sale or Possession and Use of Explosives

 

 

Small Companies

Centre tightens definition of 'small company'

The Corporate Affairs Ministry has tightened the definition of a 'small company' in the new company law, to prevent misuse of the privileges available to this category.

The new company law enacted in 2013 had introduced this new category.

Under the earlier definition, a small company was one that met one of two criteria: paid-up share capital not exceeding Rs. 50 lakh or turnover not exceeding Rs. 2 crore. 

The main difficulty was that companies that met the first criterion but exceeded the monetary limit in respect of the second criterion were also getting classified as a 'small company'.

Now, a company will have to clear both the tests — paid-up capital as well as turnover norm — to qualify as a 'small company'.

Consequently, it is likely that several entities that were previously classified as small companies will cease to be categorised as such, said Sai Venkateswaran, Partner and Head of Accounting Advisory Services at KPMG in India, in a conversation with BusinessLine .

Those companies that lose the 'small company' tag need to comply with all the general requirements applicable to companies, he said.

Lalit Kumar, Partner, J Sagar Associates, a law firm, opined that the change in the definition of a 'small company' should have come through an amendment Bill in Parliament and not through a removal of difficulty order, as was the case now.

e FDI

Press Information Bureau
Government of India
Ministry of Finance

17-February-2015 17:17 IST

New Upgraded and Secure Portal for E-Filing of Applications for Foreign Direct Investment Launched

 Department of Economic Affairs, Ministry of Finance launched here today a new upgraded and secure user friendly web site for filing and processing of applications for Foreign Direct Investment (FD) requiring Government approval. Presently the applications are filed online at www.fipbindia.com which had limited features and processing capabilities. The new website http://fipb.gov.in, which becomes operational from today, shall henceforth receive applications regarding FDI in approval route sectors.

 With the introduction of the new website, applicant will have to submit only SINGLE copy of the application for records with the FIPB Secretariat instead of 15-18 copies being filed earlier.   

 The initiative is part of the Government's ongoing efforts for Good Governance by enhancing transparency and accountability in its procedures and is a step towards Minimum Government and Maximum Governance.  The innovative features of the website are:

 

• Global Reach -Apply from anywhere in the world! Access your status from anywhere in the world!
• E-communication – communication between the applicant, FIPB and other ministries/ departments is online.
• Quicker communication- All the correspondence including updates/ decisions are communicated through SMS/emails and thus eliminating physical delivery and loss of time due to postal delays.
• Less Paperwork - Single signed copy only needed (for record) instead of present multiple sets of the application.
• SMS/email alert- Regular alerts are sent to the applicants related to the queries raised by the administrative ministries, inclusion of the proposal in the scheduled FIPB meeting and decisions.
• Transparency and security- all transactions and correspondences are recorded online and are secure.
• Query module- Any doubts? A user can raise a query online which shall be replied by the relevant ministry.

Form A-1 Dispensed

A P (DIR Series)

CIRCULAR NO

76/RBI., Dated: February 12, 2015

Foreign Exchange Management Act, 1999 - Import of Goods into India

Attention of Authorised Dealer Category - I (AD Category - I) banks is invited to the A.P.(DIR Series) Circular No. 82 dated February 21, 2012 in terms of which applications by persons, firms and companies for making payments, exceeding USD 5,000 or its equivalent towards imports into India must be made in Form A-1.

2. To further liberalise and simplify the procedure, it has been decided to dispense with the requirement of submitting request in Form A-1 to the AD Category -I Banks for making payments towards imports into India. AD Category -I may however, need to obtain all the requisite details from the importers and satisfy itself about the bonafides of the transactions before effecting the remittance.

3. AD Category - I banks may bring the contents of this circular to the notice of their constituents and customers concerned.

4. The directions contained in this circular have been issued under Section 10 (4) and Section 11 (1) of the Foreign Exchange Management Act (FEMA), 1999 (42 of 1999) and are without prejudice to permissions / approvals, if any, required under any other law.

RBI/2014-15/467

(C D Srinivasan)

Chief General Manager

Structural changes in CA Course

Structural changes in CA Course
New Proposed Scheme of Education and Training applicable from May 16 onwards was released at the Annual Function held yesterday i.e. February 11th 2015 at Delhi. A complete booklet outlining the Scheme and also significant changes along with reasons thereof can be checked at
http://220.227.161.86/36682bos26076.pdf

ISCA is discontinued
Financial Services and Capital Markets to replace it
Direct Tax to be divided into Advanced Tax Management (60 Marks) and International Taxation (40 Marks)
New syllabus

Foundation
1. Fundamentals of accounting 100
2. Quantitative aptitude 100
3a. Mercantile law 60
3b. Economics 40
4a. English 50
4b. Business communication 50

Intermediate
Group 1.
1. Accounting 100
2. Company law 60 + other laws 20 + ethics 20
3. Cost accounting 100
4. Direct taxes 100
Group 2
5. Advanced accounting 100
6. Auditing and assurance 100
7. Financial management 100
8. Indirect taxes 100

Final
Group 1
1. Financial reporting 100
2. Strategic financial management 100
3. Advanced auditing and professional ethics 100
4. Corporate and other economic laws 100

Group 2
5. Advanced management accounting 100
6. Financial services and capital markets 100
7. Advanced tax management 60 and international taxation 40
8. Indirect tax laws 100

Chargeability of Interest under Section 234A of the Income-tax Act

CIRCULAR NO 2/2015, Dated: February 10, 2015

Subject: Chargeability of Interest under Section 234A of the Income-tax Act, 1961 on self-assessment tax paid before the due date of filing of return of income-regarding

 
Interest under Section 234A of the Income-tax Act, 1961 (hereinafter the Act) is charged in case of default in furnishing return of income by an assessee. The interest is charged at the specified rate on the amount of tax payable on the total income, as reduced by the amount of advance tax, TDS/TCS, any relief of tax allowed under section 90 and section 90A, any deduction allowed under section 91 and any tax credit allowed in accordance with the provisions of section 115JAA and section 115JD of the Act. Since self-assessment tax is not mentioned as a component of tax to be reduced from the amount on which interest under section 234A of the Act is chargeable, interest is being charged on the amount of self-assessment tax paid by the assessee even before the due date of filing of return.
 
2. It has been held by the Hon'ble Supreme Court in the case of CIT vs Prannoy Roy, 309 ITR 231 (2009) that the interest under section 234A of the Act on default in furnishing return of income shall be payable only on the amount of tax that has not been deposited before the due date of filing of the income-tax return for the relevant assessment year. Accordingly, the present practice of charging interest under section 234A of the Act on self-assessment tax paid before the due date of filing return was reviewed by CBDT.
 
3. The Board has decided that no interest under section 234A of the Act is chargeable on the amount of self-assessment tax paid by the assessee before the due date of filing of return of income.
 
4. This Circular may be brought to the notice of all officers for compliance.
 
5. Hindi version shall follow.
 
F. No. 385/03/2015-IT(B)
 
(Sandeep Singh)
 
Under Secretary to Government of India

CBDT Lays Down Procedure For Launching Prosecution For TDS/ TCS Default

The CBDT has issued a document titled "Standard Operating Procedure For Prosecution In Cases Of TDS/ TCS Default". The SOP sets out in a systematic manner the procedure for identification of cases of TDS/ TCS default, the procedure for launching prosecution and the time frame for completing the entire process. The role of the different TDS authorities in addressing the issue of prosecution and compounding of TDS cases is also set out in detail

CA articles stipend revised

Please note that the rates of Stipend which is paid to Articled Assistants have increased w.e.f. 23-1-2015. The Notification (http://220.227.161.86/36524council25906-sas.pdf) to the effect is as under :

 

[TO BE PUBLISHED IN THE GAZETTE OF INDIA , EXTRAORDINARY, PART III,  SECTION 4]

 

the Institute of Chartered Accountants of India

 

NOTIFICATION

 

New Delhi, the 23^rd January, 2015

 

No. 1-CA(7)/167/2014.- Whereas certain draft regulations further to amend the Chartered Accountants Regulations, 1988, were published as required by sub-section (3) of section 30 of the Chartered Accountants Act, 1949 (38 of 1949), in the Gazette of India, Extraordinary, Part III, Section 4, dated the 10^th September, 2014, inviting objections and suggestions from persons likely to be affected thereby, before the expiry of forty-five days from the date on  which the copies of the Gazette containing the said notification were made available to the public;

 

          And whereas the copies of the said Gazette were made available to the public on the 12^th September, 2014;

 

          And whereas the objections and suggestions received from the public on the said draft regulations have been considered by the Council of the Institute;

 

          Now, therefore, in exercise of the powers conferred by sub-section (1) of section 30 of the said Act, the Council, with the approval of the Central Government, hereby makes the following regulations further to amend the Chartered Accountants Regulations, 1988, namely:-

 

1.       (1)      These regulations may be called the Chartered Accountants (First Amendment) Regulations, 2015.

 

(2)      They shall come into force on the date of their final publication in the Official Gazette.

 

 

2.       In the Chartered Accountants Regulations, 1988 (hereinafter referred to as the said regulations),-

 

(i)        in regulation 28E, in sub-regulation (1), in clause (b), for the words “nine months”, the words “eight months” shall be substituted.

 

(ii)          in regulation 48, in sub-regulation (1), for the Table, the following Table shall be substituted, namely:-

         

“ Table

Classification of the normal place of service of the articled assistant	During the first year of training	During the second year of training	During the remaining period of training
(1)	(2)	(3)	(4)
(i)  Cities/towns having a population of twenty lakhs and above	Rs.2000/-	Rs.2500/-	Rs.3000/-
(ii) Cities/towns having a population of four lakhs and above but less than twenty lakhs	Rs.1500/-	Rs.2000/-	Rs.2500/-
(iii)Cities/towns having a population of less than four lakhs	Rs.1000/-	Rs.1500/-	Rs.2000/-; “

 

 

(ii)          in regulation 204, for the words “and International Trade Laws and World Trade Organisations” the words, “International Trade Laws and World Trade Organisation and International Taxation” shall be substituted.

 

[File No. 1-CA(7)/167 /2014]

 

                                                                                                                                                                                                                                                               Sd/-

V. Sagar

Acting Secretary

Clarification on Summons

Central Excise & Service Tax Summons not to be issued to Senior Management Officials in Ordinary Instance

In what could be a relief to the trade, the Central Board of Excise and Customs has tried to streamline the process of issuance of summons under section 14 of Central Excise Act, 1944 (as made applicable to service tax as well) by clarifying that the summon should be only used to obtain details /evidence as a matter of last resort in its circular No. F. No. 207/07/2014-CX-6 dated 20th January, 2015.

 Further, it has been clarified by the board that :-

è  "Senior management officials such as CEO, CFO, General Managers of a large company or a PSU should not generally be issued summons at the first instance. They should be summoned only when there are indications in the investigation of their involvement in the decision making process which led to loss of revenue."

è  Summons by Superintendents should be issued after obtaining prior written permission from an officer not below the rank of Assistant Commissioner with the reasons for issuance of summons to be recorded in writing.

è Where for operational reasons it is not possible to obtain such prior written permission, oral/telephonic permission from such officer must be obtained and the same should be reduced to writing and intimated to the officer according such permission at the earliest opportunity

è In all cases, where summons are issued, the officer issuing summons should submit a report or should record a brief of the proceedings in the case file and submit the same to the  officer who had authorized the issue of summons .

Author's Note: - Such a sought of clarification is not a newly clarified matter. It is worthy to note that even DGCEI (Intelligence) in its instruction No. F.No. 406/CF/15/2006 dated 19th May, 2006 instructed the field formations in the similar manner. How far it is implemented, only time can tell !!

--

Regards,

CA.Ankit Gulgulia (Jain)|B.COM(H), C.A, C.IFRS, C.B.V, LLB*

RBI Comments on Bank Auditors

RBI asks bank auditors to have a stringent monitoring process

Pointing to the gaps in the auditors' work, the Reserve Bank of India (RBI) has asked banks to adopt a more stringent auditing process to ensure that review of financial results and identification of fraud is done more promptly.

RBI Deputy Governor S S Mundra said there is a greater need to take a closer look into the asset quality, instances of restructuring of advances, provisioning held, etc. to ensure that there was no divergence with regard to asset classifications and provisions held.

"The point I am trying to make is that if RBI inspectors are able to identify these divergences in the limited time-frame that they are on-site, why the banks' auditors are not able to do so…Is it a question of efficiency of the auditors or is there a much deeper issue - something to do with the transparency of the process itself?," he asked while addressing members of the Audit Committee of the Boards (ACB) of ICICI Bank subsidiaries & other bank employees.

With regards to provisions, he told banks that adequate provisions should be made for post-retirement benefits like pension, gratuity and leave encashment, etc. and the auditors should ask more pertinent questions to the banks with regards to provisioning requirements

"It is important that the ACB asks the right questions to the management about various underlying assumptions that go into computation of the required provisions such as life expectancy, discount rate, expected return on investments, etc. I urge the ACBs to ask uncomfortable questions," he said in his speech.

In light of instances of know-your-customer (KYC) norms violation Mundra has urged auditors to be stricter with the process of background check. Last month, RBI had imposed penalties on ICICI Bank and Bank of Baroda for flouting KYC and anti money laundering norms.

"I believe that the absence of an appropriate punitive mechanism in the banks for lapses has also contributed to their recurrence. Therefore, our expectations from the ACBs would be to closely focus on reasons for such regulatory penalties/sanctions and seek a root-cause analysis for preventing recurrence," he added.

RBI has also been cautioning consumers against the rising case of credit card and other frauds. Mundra called upon greater sensitivity and increased focus from auditors with regards to having appropriate measures in place to prevent instances of fraud.

"In our recently concluded scrutiny into fixed deposit related frauds in some banks, it emerged that even the caution advices issued by RBI in respect of certain individuals had not percolated down to the branch officials quickly enough to enable appropriate preventive measures… I would say that ACBs should take upon themselves to monitor the trend of frauds, assimilate key learnings and ensure that mitigation measures are put in place by the management," he added.

 

Source: BS

Scrutiny Assessments-Refund

SECTION 143 OF THE INCOME-TAX ACT, 1961 - ASSESSMENT - GENERAL - CLARIFICATION AS TO WHETHER PROVISION OF SECTION 143(1D) PERMITS PROCESSING OF RETURNS HAVING A REFUND CLAIM, WHERE NOTICE UNDER SECTION 143(2) HAS BEEN ISSUED

INSTRUCTION NO.1/2015 [F.NO.225/319/2014-ITAT.II], DATED 13-1-2015

Sub-section (1D) of section 143 of the Income-tax Act, 1961 ('Act') provides that where a notice has been issued to a taxpayer under sub-section (2) of section 143 of the Act, it shall not be necessary to process the return in such a case.

2. Some doubts have been expressed, in view of the words "shall not be necessary" used in the said sub-section, as to whether this provision permits processing of returns having a refund claim, where notice under section 143(2) of the Act has been issued.

3. The matter has been examined by the Board. Sub-section (1D) of section 143 of the Act was introduced by the Finance Act, 2012 with effect from 01.07.2012. The purpose of introduction of this sub-section has been stated in the Explanatory Note to the Finance Act as under:

"Under the existing provisions, every return of income is to be processed under sub-section (1) of section 143 and refund, if any, due is to be issued to the taxpayer. Some returns of income are also selected for scrutiny which may lead to raising a demand for taxes although refunds may have been issued earlier at the time of processing.

It is therefore proposed to amend the provisions of the Income-tax Act to provide that processing of return will not be necessary in a case where notice under sub-section (2) of section 143 has already been issued for scrutiny of the return."

Thus, in cases where an unprocessed return is selected for scrutiny, the legislative intent is to prevent the issue of refund after processing as scrutiny proceedings may result in demand for taxes on finalisation of the assessment subsequently.

4. Considering the unambiguous language of the relevant provision and the intention of law as discussed above, the Central Board of Direct Taxes, in exercise of the powers conferred on it under section 119 of the Act hereby clarifies that the processing of a return cannot be undertaken after notice has been issued under sub-section (2) of section 143 of the Act. It shall, however, be desirable that scrutiny assessments in such cases are completed expeditiously.

5. This may be brought to the notice of all concerned for strict compliance.

Customs Procedures Simplified for Shipping

GOVERNMENT OF INDIA MINISTRY OF FINANCE DEPARTMENT OF REVENUE CENTRAL BOARD OF EXCISE & CUSTOMS NEW DELHI CIRCULAR NO 02/2015-Cus., Dated: January 15, 2015 To The Chief Commissioner of Customs/Customs (Preventive) The Chief Commissioner of Customs and Central Excise The Commissioner of Customs/Customs (Preventive) The Commissioner of Customs and Central Excise Subject: Simplification of Customs procedures for shipping - regarding. The avoidable delays on account of non-uniform Customs procedures adopted at some ports/Customs stations not only increase transaction cost and time of clearance but also prove to be major constraints in making Indian ports international transshipment hubs. Therefore, a Committee was set up by Ministry of Shipping for simplification of shipping related Customs procedures. The Committee has made, interalia, certain recommendations for implementation by Customs: 2. Board has examined the recommendations of the said Committee in consultation with identified Chief Commissioners of Customs. Accordingly, the following decisions have been taken to streamline the extant procedures at various ports: (i) It is reported that the number of hard copies of Import General Manifest (IGM) filed by shipping lines/steamer agents varies from 2 to 6 at various ports. Board, has noted that the Customs is already receiving the IGM electronically as well. The requirement of large number of hard copies of this document leads to unnecessary escalation of compliance cost. Therefore, taking into account the requirement of Customs as well the fact that an electronic version of IGM is already available, Board has decided that henceforth the number of hard copes of IGM required to be submitted by shipping lines/steamer agents at a Customs House shall be restricted to 2 (two) only. (ii) The port clearance requires submission of numerous documents on behalf of other agencies - Lighthouse Dues Certificate, NOC for Immigration, Port Health Certificate etc. At present, the port clearance is given on the strength of a bond and a guarantee which are given each time a vessel enters. As a measure of simplification, Board has decided to give an option to the steamer agent to (a) give a continuity bond and (b) merge the guarantee with the continuity bond. This would reduce the number required documents from 2 (two) to 1 (one) and periodicity (of submission) would also get reduced drastically. (iii) Reportedly, in case of transshipped cargo, shipping lines send multiple hard copies of 'Sub Manifest Transhipment Permit' (SMTP) to the destination ICD despite the same also being transmitted electronically. However, there may be situations warranting hard copy of the document such as when amendments have to be made. Recognizing the need for reducing number of copies of SMTP, Board has decided that only 1 (one) copy of SMTP would be sufficient and Customs at ICD should not insist on more number of hard copies of SMTP. (iv) Currently , separate permissions are required whenever the mode of transport of transhipment containers changes from train to road or vice versa. The view is that this may be dispensed with since the carrier has already executed a bond for safe carriage of the goods to the destination port/ICD. With a view to boost inter-modal transportation of transshipped cargo and simply procedure, Board has decided that henceforth no separate permission is required from jurisdictional Customs in case of change of mode of transshipment under the Goods Imported (Conditions of Transhipment) Regulations, 1995. However, the carrier is required to intimate the change to the jurisdictional Commissioner of Customs who will ensure the bond covers both modes of transport. 3. Chief Commissioners of Customs/Customs and Central Excise are requested to ensure that the aforementioned decisions are complied with strictly by field formations in their jurisdiction. Suitable Trade notice/Public Notice may also be issued for guidance of trade and staff. 4. Difficulty, faced if any, may be brought to the notice of the Board. F. No. 450/221/2014-Cus IV (Pawan Khetan) OSD ( Cus IV)

Supreme Court Stay on Service Tax Audit

SC stays Travelite India (Delhi HC) judgment striking down service tax rule 5A(2)

January 12, 2015[2015] 53 taxmann.com 238 (SC)

 

Service Tax : Supreme Court stayed operation of judgment of Delhi High Court in Travelite (India) holding that : (a) only type of audit contemplated under law is under section 72A, i.e., a special audit; (b) Parliament did not intend to provide for a general audit that "every assessee" may be subjected to "on demand" under rule 5A(2); and (c) rule 5A(2) of Service Tax rules, 1994 is ultra vires section 94

■■■

[2015] 53 taxmann.com 238 (SC)

SUPREME COURT OF INDIA

Union of India

v.

Travelite (India)*

H.L. DATTU, CJI.
A.K. SIKRI AND R.K. AGRAWAL, JJ.

Special Leave to Appeal (Civil) No. 34872 of 2014

DECEMBER  18, 2014 

Rule 5A of the Service Tax Rules, 1994, read with sections 72A, 83 and 94 of the Finance Act, 1994 and section 37B of the Central Excise Act, 1944 - Audit - Service Tax - Submission of Records - Assessee received a letter from Commissioner seeking records for scrutiny by an audit party - Assessee challenged said letter and also challenged rule 5A(2) as well as Instruction F. No. 137/26/2007-CX.4, dated 1-1-2008 issued there under as ultra vires Act on ground that there is no substantive power under Act to call for records and audit is provided only by section 72A and, therefore, mandate of section 72A cannot be exceeded - High Court held that : (a) Section 72A envisages an audit of an assessee's records only in special circumstances; (b) Revenue could not show any other substantive provision which justifies a probe into records of assessee, under conditions akin to those contemplated by rule 5A(2); (c) Parliament did not intend to provide for a general audit that "every assessee" may be subjected to, "on demand"; (d) thus, any attempt to include provision for such a general audit through back-door, such as through rule 5A(2) is ultra-vires; likewise, CBEC instruction was also void - On Department's Special Leave Petition to Supreme Court - HELD : There shall be stay of operation of judgment of High Court [Para 1] [Stay granted]

CASE REVIEW

 

Travelite (India) v. Union of India [2014] 48 taxmann.com 227/[2014] 46 GST 708 (Delhi) stayed.

Mukul Rohatgi, Attorney General Nisha Bagchi, Charul Sarin and B. Krishna Prasad, Advs. for the Appellant.

ORDER

 

1. There shall be stay of the operation of the impugned judgment and order dated 4-8-2014 passed by the High Court in Writ Petition (C) No.3774 of 2013.

■■

*In favour of revenue.

 

 

CPT CA final results

Final Examination and  CPT) held in November/December, 2014 are likely to be declared on Monday, the 19th January, 2015 around 2.00 PM.

Exposure Draft of Ind AS compliant Schedule III to the Companies Act 2013 for Public comments

ICAI has issued Exposure Draft of Ind AS compliant Schedule III to the Companies Act 2013 for Public comments.

Schedule III will be the presentation format for companies under IFRS-converged Ind ASs. Last date for comment submission is January 17, 2015. Now u can acess the ED and can submit the comment online at the following link:

http://www.icai.org/comments/asb/viewdetailcomment.html?commentdoc_id=11

Most TP Audit Report by CAs unreliable with pathetic professional work

Most TP Audit Report by CAs unreliable with pathetic professional work

Wrigley India Pvt Ltd vs. ACIT (ITAT Delhi), I.T.A. Nos. 5648, 5649 and 5650/Del/12, Date of pronouncing the order : December 31, 2014.

It seems CAs are under attack from all parts of the world for good or not so good reasons. Recently CAG in its report Criticised CAs for alleged Mistakes in Tax Audit Report and signing of Tax Audit Reports  more than the prescribed limit.

ITAT Mumbai has also sounded warning on falling standards of CA profession in the case of Vijay V Meghani vs. DCIT. 

In One more  blow Finance Ministry has already Proposed to amend the definition of the word Accountant under the Direct Tax law and to include Cost Accountant,  Company Secretary etc. in the definition.  This will enable other professionals also  to Conduct Tax Audit and other Certification under the Income Tax which is till now the sole domain of Chartered Accountants.

In a new blow to CA Professionals ITAT Delhi has held in the case of Wrigley India Pvt Ltd vs. ACIT has drawn the following conclusion from Transfer pricing Study Reports prepared by CAs and studied by them over a period of time:-

1. These TP reports as also certifications by the chartered accounts inspire no confidence.
2. Nothing can justify  pathetic level of professional work done by chartered accountants.
3. Chartered Accountants also responsible for frivolous litigation.
4. No purpose served by TP Reports of  chartered accountant  when reports do not even point   glaring infirmities in taxpayers approach vis-a-vis the transfer regulation.
5.  in an alarming number cases, these audit reports, rather than painting a true and fair picture of the relevant facts, tend to epitomize the art of constant hedging and manoeuvring by the professionals so as they stay within the confines of permissible professional conduct and are yet able to sidestep the inconvenient realities.

Relevant Para of the Judgment is as follows :-

Having held so, we must also point out that the transfer pricing reports with respect to the impugned determination of ALP leave a lot to be desired. Just because the action of the authorities below, in adopting cost plus method in the above manner, is legally unsustainable, the ALP determination by the assessee cannot be taken as correct. These TP reports as also certifications by the chartered accounts inspire no confidence and, quite to the contrary, raise doubts about efficacy of the built in checks and balances in transfer pricing regulations. It is somewhat fashionable to criticize the revenue authorities for their lack of objectivity or even inefficiency but what in the world can justify such a pathetic level of professional work relied upon by even the large corporate entities. If the tax judicial system is clogged by frivolous litigation today and if the tax finality still takes decades to reach, these saviours of taxpayers are as much to be blamed for this situation as anybody else. No purpose can be served in reporting by a chartered accountant when suchreports do not even point out glaring infirmities in taxpayer's approach vis-à-vis the transfer regulation, in a comparison of budgeted profits margin with actual profit margins realized by the comparables which is stated to be ascertainment of ALP on the basis of the TNMM. It appears that in an alarming number cases, these audit reports, rather than painting a true and fair picture of the relevant facts, tend to epitomize the art of constant hedging and manoeuvring by the professionals so as they stay within the confines of permissible professional conduct and are yet able to sidestep the inconvenient realities. Of course, it will be much worse a situation if they are actually so naïve as to be oblivious of simple provisions of law, of their onerous responsibilities or of the legitimate public expectations. It is not to belittle the brilliant work being done by many a professionals but it is just to point out the dilemma of those who explore the possibilities of relying upon such audit reports and certifications, and also the inertia of those who can do something to salvage this situation and, to thus avoid an inevitable systemic rejection of the ritualistic certifications. We are particularly pained today as the financial period before us is mostly even more than a decade old and yet since the TP reports and certifications before us are, in our considered view, are so much devoid of credibility that, instead of deciding the things one way or the other, we have no choice except to remit the matter to the file of the TPO for fresh ascertainment of ALP on the basis of residuary method, i.e. TNMM. (Para 24)

(Article is Compiled by CA Sandeep Kanoi)

SOP for Administering TDS

CBDT - Standard Operating Procedures (SOP) for Administering TDS

STANDARD OPERATING PROCEDURES (SOP) FOR ADMINISTERING TDS INCORPORATING THE RE-ENGINEERED PROCESSES DEVELOPED BY THE CPC-TDS

TDS is a non-obtrusive but powerful instrument to prevent tax evasion as well as to expand the tax net. TDS also minimizes tax avoidance by the taxpayer (income earners), as the payee's transaction(s) are reported to the Department by the third person. The contribution of TDS to the overall gross direct taxes collections during F.Y.2013-14 was Rs.2,71,069 crore. This is a 17.88% growth over the collections shown under this minor head from Rs.2,29,943 crore during F.Y.2012-13. Thus, TDS now contributes more than 37% to the gross direct taxes collections, emphasizing its ever growing importance.

2.  With the Centralized Processing Cell for TDS at Vaishali, Ghaziabad, the TDS administration is now driven through technology support. The CPC-TDS provides comprehensive MIS on compliance behaviour of the deductors, defaults details, PAN errors besides helping the deductor or the Department to identity & rectify mistakes. The strategy to augment revenue through TDS ought to be, therefore, a mix of enforcement, capacity building (external and internal) and leveraging of information that is now available with the Department through the CPC-TDS.

3.  With the enablement of all functionalities, available to the TDS Assessing Officer through AO Portal, the Standard Operating Procedure (SOP) specifying the role of Officers, who are associated with TDS administration, becomes necessary. The SOPs have been framed to address the various features in the re-engineered processes in TDS administration. The SOPs have been made on following issues :-

i. Matching the unconsumed challan.
ii. Top deductors paying less/no tax with respect to previous financial years. iii. Resolvable/Collectible TDS Demand.
iv. G-OLTAS reconciliation.
v. Corporate connect for TDS compliance.