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

Availability of Physical Application Forms for

Chartered Accountants November-2010 Examinations

 

          Due to unavoidable difficulties in dispatching, there have been instances of shortage at certain decentralized offices and / or branches of ICAI in the availability of the physical application forms for the Chartered Accountants November-2010 Examinations.

 

The students of ICAI are hereby informed that every possible efforts is being taken to make the application forms available at all its branches and decentralized offices from 16th August, 2010 onwards without any shortage.

 

          Meanwhile, the students may also fill in the examination forms online at http://icaiexam.icai.org .

 

          Inconvenience caused to the students is deeply regretted. We assure you our best services in future.

 

 

Examination Department

 

ICAI Compendium of Opinions

The ICAI has posted all the compendium of opinions on its website. Here is the link:

http://www.icai.org/eac/eacfinal/index1211.html

CBEC Clarification on ST on Commission

Circular No.126/08/2010 - ST

F.No.332/13/2010-TRU

Government of India

Ministry of Finance

Department of Revenue

Tax Research Unit

North Block, New Delhi

10^th August 2010

 

To

 

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

Director General (Service Tax),

Director General (Central Excise Intelligence),        

Director General (Audit),

Commissioners of Service Tax (All),

Commissioners of Central Excise and Service Tax (All).

 

Madam/Sir,

 

           

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

 

           

 

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

 

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

 

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

 

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

                                                                                                                                               

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

 

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

 

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

 

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

 

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

 

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

 

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

(J. M. Kennedy)

Director, TRU

                                                                                                                             Tel: 011-23092634

--
Best Wishes

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

Analysis on CA PCC Results-May 2010

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

--
Best Wishes

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

Instructions on Lower TDS-TCS

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

INSTRUCTION NO. 04/2010, Dated: July 21, 2010 Issue of Certificate of lower collection of income tax at source u/s 206C(9) - regarding. I am directed to state that instruction No.8/2006 dated 13.10.2006 was issued by the Board making it mandatory to get prior administrative approval of Additional Commissioner of Income Tax/Joint Commissioner of Income Tax before issue of any certificate of lower deduction of tax at source u/s 197 of the Income Tax Act, 1961. Further, instruction No.7/2009 dated 23.12.2009 was issued communicating prior administrative approval of the Commissioner of Income Tax (TDS) in the cases where the cumulative amount of tax foregone by non-deduction/lesser rate of deduction of tax arising out of certificate u/s 197 during the financial year for a particular assessee exceeds Rupees Fifty lakh in major stations and Rupees Ten lakh for other stations. 2. For effective monitoring and control of tax foregone through certificate of lower tax collection at source (TCS), I am directed to communicate that for issue of certificate of lower collection for tax at source u/s 206C(9), prior administrative approval of Additional Commissioner of Income Tax/Joint Commissioner of Income Tax shall be obtained in each case. Further, prior administrative approval of Commissioner of Income Tax (TDS) shall be taken where cumulative amount of tax foregone by lesser rate of tax collection at source during the financial year for a particular buyer or licensee or lessee; as the case may be; exceeds Rupees Fifty lakh in Delhi, Mumbai Chennai, Kolkata, Bangaluru, Hyderabad, Ahmedabad and Pune Stations and Rupees Ten lakh for other stations. Once the Addl. CIT/JCIT or the CIT(TDS), as the case may be, gives administrative approval of the above, a copy of it has to be endorsed to the jurisdictional CIT also. 3. In relation to TCS matters of a buyer or licensee or lessee falling within the jurisdiction of Directorate of Income Tax (International Taxation), the powers indicated above shall be vested in the officers concerned i.e. Range Additional DIT/JDIT (International Taxation) or Director of Income Tax (International Taxation), as the case may be. 4. "Tax foregone" in case of a buyer or licensee or lessee; as the case may be; should ordinarily mean difference between taxes computed at the relevant rate of collection stipulated and the tax computed on the basis of rate at which the certificate u/s 206C(9) is sought to be issued. 5. The content of this instruction may be brought to the notice of all officers working in your charge for strict compliance. 6. Hindi version will follow. F.No.275/23/2007-IT(B) (Ajay Kumar) Director (Budget)

--
Best Wishes

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

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

Dear All,

Find attached Request for Proposal for Empanelment of Chartered Accountant Firms for Implementation of Accrual Based Double Entry Accounting System in 159 Municipalities of Gujarat.

City Managers' Association Gujarat on behalf of GMFB invites RFP from the eligible firm to carry out the work of Accrual Based Double Entry Accounting System in 159 Municipalities of Gujarat. The category wise / District wise list of municipalities appended herewith at Appendix - A. The allocation of municipalities will be done on the basis of the location of CA Firms. (Annexure – 8). You are therefore, requested to submit RFP offer. Your offer must be written in English. All pages of your offer must be properly numbered and initialed by you or your authorized officer. Along with the RFP the Earnest Money Deposit amounting to Rs.25,000/- ( Rupees Twenty Five Thousands only) shall have to be paid in form of Demand Draft of any Schedule Bank except Co-operative Bank. DD shall be in favour of "City Managers' Association Gujarat Ahmedabad."

1	Date from which Tender Document available	Date: 03/08/2010
2	Last Date of Submission	Date: 31/08/2010
3	Date of opening of offers RFP (Technical Bids)	Date: 01/09/2010

Website: http://www.cmag-india.com/

__._,_.___

Attachment(s) from Ashwin Nagar

1 of 1 File(s)

GMARP RFP Document.doc

Processing of Returns-AY 2009-10- Instructions

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

 

 

 

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

 

 

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

 

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

 

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

 

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

 

--
Best Wishes

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

Due Date Extended

Due date for filing of income tax return extended till 04-Aug-2010

--------------------------------------------------------------------------------------------------------------------------------

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

Press Release

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

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

th August

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

31

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

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

The decision was taken in view of some technical snags in

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

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

--
Best Wishes

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

IFRS: An idea whose time is yet to come

M. RAMESH

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

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

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

Flawed arguments

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

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

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

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

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

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

Lot of work left

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

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

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

CII- 2010-11 - 711

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

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

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

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

____________________________________________________________

"30 2010-11 711"

____________________________________________________________

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

COST INFLATION INDEX
Financial Year	Cost Inflation Index	Financial Year	Cost Inflation Index
1981-1982	100	1996-1997	305
1982-1983	109	1997-1998	331
1983-1984	116	1998-1999	351
1984-1985	125	1999-2000	389
1985-1986	133	2000-2001	406
1986-1987	140	2001-2002	426
1987-1988	150	2002-2003	447
1988-1989	161	2003-2004	463
1989-1990	172	2004-2005	480
1990-1991	182	2005-2006	497
1991-1992	199	2006-2007	519
1992-1993	223	2007-2008	551
1993-1994	244	2008-2009	582
1994-1995	259	2009-2010	632
1995-1996	281	2010-2011	711

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

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

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

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

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

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

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

5. Receipt of this instruction may kindly be acknowledged.

150 years of I-T law

T.N. PANDEY

---

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

---

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

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

Taxation by legislation

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

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

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

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

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

Broader coverage

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

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

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

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

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

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

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

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

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

Lack of adequate infrastructure

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

(The author is a former chairman of CBDT.)

Cost Inflation Index for 2010-11 is 711

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

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

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

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

"30 2010-2011 711"

__._,_.___

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

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

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

 

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

 

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

 

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

 

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

 

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

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

BONANZA FOR DEFAULTING AND DEFUNCT COMPANIES

                        The Corporate Sector has reason to celebrate the launch of two Schemes by the Ministry of Corporate Affairs in the last week of May 2010.   The Company Law Settlement Scheme (CLSS) 2010 is intended for those companies who desire to continue after clearing their track record.  Whereas, Easy Exit Scheme (EES) 2010 is intended for those companies who desire to exit at no cost.

 

                        In the office of ROC, Mumbai, 1,30,519 companies were required to file Annual Returns and Balance Sheets.  Out of which only 66,418 companies have filed Balance Sheet and Profit and Loss Account for 2008-09 and only 66,148 companies have filed Annual Return for the same year.  This roughly gives compliance rate of about 50.88%.  Now those companies who have defaulted,   which account for about 50% of the total companies required to file Annual Return and Balance Sheet, can avail the CLSS 2010.  The Scheme gives a discount of 75% of the additional fee payable for delayed filing.  Thus the scope of CLSS 2010 is very large covering about 50% of the active companies under the jurisdiction of ROC, Mumbai.  These companies should avail this opportunity to clean up their track record.

 

                        The Dormant Companies falling within the jurisdiction of ROC, Mumbai as per the criteria of continuous non-filing of Annual Return and Balance Sheet since 2005-06 come to the extent of 37,969 companies.  These companies have never filed any Balance Sheet and Annual Return continuously since 2005-06.  The number of companies having paid up capital of less than Rs. 1 lac in the case of Private Companies is around 16,481 and Public Companies having paid up capital of less than Rs. 5 lacs is 4,678.  These companies have not raised the paid up capital to the minimum threshold limit prescribed in the Companies (Amendment) Act, 2000.  All such defunct companies and companies having paid up capital of less than the prescribed limit are eligible to avail EES – 2010.  Unlike the earlier Schemes, SES 2003 and SES 2005 where a minimum payment was required to be paid alongwith the application, EES 2010 does not require any payment.  Moreover, in the earlier Schemes there was a requirement to update filing of Balance Sheet upto the period of doing business, whereas under EES – 2010 there is no

 

 

 

 

 

such requirement.   The only criteria is that the company availing EES  2010 should not have done any business or carried  on any business after 01.04.2008.  This is provided in the definition of "defunct company".  This is a golden opportunity for such defaulting companies to exit at no cost and least paper work.  Even companies in which directors have not obtained DIN and Digital Certificate can avail EES 2010 by executing the prescribed documents manually which can be scanned and attached to the e-form digitally signed by the Practicing Company Secretary/Practicing Chartered Accountant or Practicing Cost Accountant. Thus there is no need even to obtain DIN and Digital Certificate for availing EES 2010.

 

 

                        This is a golden opportunity for the defaulting companies as well as defunct companies to set right the records and progress towards appreciable level of compliance rate comparable to any other developed Country. Practicing Company Secretary/Practicing Chartered Accountant may prevail upon their client companies who are eligible for the Schemes to avail this one time opportunity.

           

                       

 

                                                                       (HENRY RICHARD)

                                                               REGISTRAR OF COMPANIES

                                                                MAHARASHTRA , MUMBAI

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

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

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


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

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

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

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

Income Tax Provisions in Respect of Filing of Annual Information Return (AIR)

Jul 18, 2010 Income Tax

1. Section 285BA:- Section 285BA has been substituted by the Finance Act, 2004 w.e.f. 1-4-2005. It is applicable in respect of transactions registered or recorded during any financial year commencing on or after 1-4-2004. Sub-section (1) of section 285BA requires certain specified persons to furnish Annual Information Return (AIR) in respect of specified financial transactions registered or recorded by them during the financial year.

Under sub-section (2) of section 285BA AIR has to be furnished within the prescribed time, in the prescribed form and manner.

Sub-section (3) of section 285BA specifies the nature of transactions which can be prescribed by the CBDT for the purpose of reporting in the AIR. It also provides that the Board may prescribe different values for different transactions in respect of different persons having regard to the nature of the transaction. It further provides that the value of the transaction to be reported in the AIR shall not be less than Rs. 50,000/-.

The requisite prescription has been made by Rule 114E.

2. Rule 114E

The nature of the transactions and the threshold value on or above which information has to submitted in the AIR are prescribed in Rule 114E.

Presently, in terms of Rule 114E (2), the specified persons who are required to furnish AIR and the nature and value of the specified transactions to be reported in the AIR are as under:

Tabular Summary of AIR

Sr. No.	Person responsible to file AIR	Nature of Financial transaction	Value	Transaction Code
1	Banking company/institution	Total cash depositsin a savings bank account in a year	Rs. 10 lakhs or more	001
2	Banking company/ institution or any other company / institution issuing credit card	Payments received in the year in respect of a credit card issued.	Rs. 2 lakhs or more	002
3	Trustee or authorized person of a Mutual Fund	Receipt from any person for acquiring units of that Fund	Rs. 2 lakhs or more	003
4	Company or institution issuing bonds or debentures	Receipt from any person for acquiring bonds or debentures issued by the company or institution.	Rs. 5 lakhs or more	004
5	Company issuing shares through a public or rights issue	Receipt from any person for acquiring shares issued by the company.	Rs. 1 lakh or more	005
6	Registrar or Sub-Registrar	Purchase or sale by any person of immovable property	Rs. 30 lakhs or more	006/007
7	Authorised Officer ofReserve Bank of India	Aggregate receipts from any person for bonds issued by RBI	Rs. 5 lakhs or more	008

3. TIME LIMIT OF FILING AIR

Rule 114E (5) prescribes that AIR is to be furnished on or before 31st August, immediately following the financial year in which the transaction is registered or recorded.

4. FORM NO. OF AIR

Under rule 114E (1) and rule 114E (4) AIR is to be furnished in Form No. 61A on a computer readable media being a floppy (3.5 inch or 1.44 MB capacity) or CD-ROM (650 MB or higher capacity) or Digital Video Disc (DVD).

5. MANNER OF FILING AIR

5.1 TAN is the folio number

The person filing the AIR is required to quote his folio number in para 3 of Part A of Form 61A and para 4 of part B of Form 61A for filing the AIR. This folio number is the unique identity of the person filing the AIR for all purposes of AIR.

In the case of Government filers the TAN of the filer and in the case of non-government filers the TAN of the principal office of the person filing the AIR is the folio number.

5.2 One AIR per person

Persons filing AIR have to furnish only one Return even if they may have more than one branch.

The AIR is to be filed under the TAN of the principal office of the person filing the AIR.

5.3 Signing and Verification of AIR

The AIR should be signed and verified by the following persons as specified in rule 114E(6):

(a) In the case of an assessee, by a person authorised to sign a return under section 140 and

(b) In other cases, by a person specified in table below rule 114(E)(2).

5.4 Authority for accepting AIR

The AIR is required to be furnished to the Commissioner of Income Tax (Central Information Branch) under Rule 114 E (3). It is also provided under the rule that where the CBDT has authorised an agency to receive AIR on behalf of the Commissioner of Income Tax (Central Information Branch) the AIR shall be furnished to that agency.

The CBDT has authorized National Securities Development Corporation (NSDL) as the agency to receive AIRs on behalf of Commissioner of Income Tax (Central Information Branch).

AIR can be furnished with the facilitation centres of NSDL located in different parts of the country. The addresses of these facilitition centres are available on the website www.incometaxindia.gov.in and www.tin.nsdl.com.

5.5 Certificate of Virus free data

The return is to be accompanied with a certificate regarding clean and virus free data.

6. PENALTY FOR NON FILING/LATE FILING OF AIR

Section 271FA provides that if the specified person fails to furnish the AIR within the time prescribed, then the prescribed Income Tax Authority may impose a penalty of Rs. 100/- for every day during which the default continues. The penalty shall, however, not be levied if there is reasonable cause for the failure.

7. ANALYSIS OF SPECIFIED FINANCIAL TRANSACTIONS

7.1. Cash deposits in a savings bank account

A banking company to which Banking Regulation Act, 1949 applies (including any bank or banking institution referred to in section 51 of that Act) is required to report the aggregate of all the cash deposits in any savings account of a person maintained in that bank if the aggregate of cash deposits in a financial year are Rs. 10 lakhs or more. It is to be noted that the provision applies to a bank and not the branch thereof.

7.2. Credit Card payments

A banking company to which Banking Regulation Act, 1949 applies (including any bank or banking institution referred to in section 51 of that Act) or any other company/institution issuing credit cards is required to furnish the aggregate of all payments of Rs. 2 lakhs or more in afinancial year made by a credit card holder against bills raised in respect of a credit card issued to that person.

7.3 Investment in Units of Mutual Fund

A mutual fund is under an obligation to furnish in the AIR a receipt from any person of an amount of Rs. 2 lakhs or more for acquiring units of that fund. It has been clarified that the amount actually received from a transacting party, and not the amount relating to the allotment, is to be reported in the AIR.

7.4 Issue of bonds or debentures

A company or institution issuing bonds or debentures is under an obligation to furnish in the AIR a receipt from any person of an amount of Rs. 5 lakhs or more for acquiring bonds or debentures issued by that company or institution. The amount actually received from a transacting party, and not the amount relating to the allotment, is to be reported in the AIR.

7.5 Issue of shares in a public or rights issue

If a company has received Rs. 1 lakh or more in respect of shares issued by that company through a public or rights issue, the company has to furnish the details of such a transaction. Here also the amount actually received from a transacting party, and not the amount relating to the allotment, is to be reported in the AIR.

7.6 Purchase or sale of immovable property

The registering authority; i.e., Registrar or Sub-Registrar appointed u/s. 6 of the Registration Act, 1908 is required to furnish in the AIR purchase or sale of immovable property, the value of which is Rs. 30 lakhs or more. CBDT Circular has clarified that where the transaction in respect of a property valued at more than Rs. 30 lakhs involves joint parties and the value for one or more party is less than Rs. 30 lakhs, the transaction is to be reported in the AIR giving requisite details in respect of all such joint parties, even though the value of the transaction in the hands of one or more joint parties is less than Rs. 30 lakhs.

7.7 Issue of RBI Bonds

If a person acquires bonds issued by the Reserve Bank of India, the aggregate value of which is Rs. 5 lakhs or more in a year, then an officer authorised by the RBI has to provide requisite information of such transactions in respect of such a person through AIR. The monetary limit applies to the aggregate value of the investments made in a year.

8. DEFECTIVE RETURN, NOTICE, COMPLIANCES

8.1 Section 285BA (4): Notice for defective return

Where the prescribed Income Tax Authority considers that the Annual Information Return furnished under sub-section (1) is defective, he may intimate the defect to the person who has furnished such return and give him an opportunity of rectifying the defect within a period of one month from the date of such intimation or within such further period, the authority may grant on an application in this regard. If the person fails to rectify the defect within the time allowed, the prescribed income tax authority will treat the return as invalid and all the
provisions of this Act shall apply as if such person has failed to furnish AIR.

8.2 Section 285BA(5): Compliance in response to notice

Where a person who is required to furnish an AIR has not furnished the same within the prescribed time, the prescribed Income Tax Authority may serve up on such person a notice requiring him to furnish such return within such period as laid down by such authority but not exceeding 60 days from the date of service of such notice.