HUF-LLP PARTNER

SECTION 5 OF THE LIMITED LIABILITY PARTNERSHIP ACT, 2008 - PARTNERS - WHETHER HINDU UNDIVIDED FAMILY (HUF)/ITS KARTA CAN BECOME PARTNER/DESIGNATED PARTNER (DP) IN LIMITED LIABILITY PARTNERSHIP (LLP)

GENERAL CIRCULAR NO. 13/2013 [F.NO. 1/13/2012-CL-V], DATED 29-7-2013

It has come to the notice of the Ministry that some Hindu Undivided Families (HUFs)/Kartas of such families are applying to become partner/ Designated partner (DP) in LLPs and a question has arisen whether a 'HUF' or a karta can be allowed to do so. The matter has been examined in consultation with Ministry of Law.

2. As per section 5 of LLP Act, 2008 only an individual or body corporate may be a partner in a Limited Liability Partnership. A HUF cannot be treated as a body corporate for the purposes of LLP Act, 2008. Therefore, a HUF or its karta can not become designated partner in LLP.

3. This issues with the approval of Secretary, MCA

ST Return Due Date Extended

ORDER NO 4/2013-Service Tax, Dated : August 30, 2013

In exercise of the powers conferred by sub-rule(4) of rule 7 of the Service Tax Rules, 1994, the Central Board of Excise & Customs hereby extends the date of submission of the Form ST-3 for the period from 1^st October 2012 to 31^st March 2013, from 31^st August, 2013 to 10^thSeptember, 2013.

The circumstances of a special nature, which have given rise to this extension of time, are as follows:

"Difficulties have been faced by assessees in uploading the offline utilities".

F.No.137/99/2011-Service Tax

Himani Bhayana
Under Secretary (Service Tax) 
Central Board of Excise and Customs

NO TDS ON SERVICE TAX PORTION

ATDS breather on service tax portion

The Rajasthan High Court, in the case of Rajasthan Urban Infrastructure Development Project, ruled that no tax need be withheld under Section 194J on the service tax payable on professional/ technical fees.

Interestingly, the Central Board of Direct Taxes had in an earlier circular held that the scope of withholding tax under Section 194J includes 'any sum' by way of professional/ technical services, and withholding tax applies on the service tax component as well.

However, the High Court ruled that if service tax is payable in addition to professional/ technical fees under the contract, the withholding tax will be restricted to the fees, thereby highlighting that examination of contract terms is imperative.

This ruling may also be relevant in the context of other similarly worded withholding tax provisions.

Very Important Alert on e Filing of Tax Audit Report

Dear Members,

Please note that there is clear instructions from Income-tax Department wherever there is requirement in the Form to be submitted a signed copy of document by an Assessee/ CA as an attachment, upload the scanned copy of the same documents.

Please see the instruction in ITD website.

Please adhere to the instruction while e filing the Balance Sheet and Profit and Loss while uploading the tax audit report.

Parliament Passes Companies Bill,2012

Dear Members,

Parliament Passes the Historic Companies Bill 2012

             

The Parliament has passed the historic Companies Bill 2012, moved by Shri Sachin Pilot, Minister of Corporate Affairs. The Bill was passed by the Rajya Sabha here today which had already been passed by the Lok Sabha many months ago (in December 2012). Shri Pilot has termed it as a historic day for the country as it will usher in a new era in the Corporate Governance.

The new Companies Bill, on its enactment, will allow the country to have a modern legislation for growth and regulation of corporate sector in India. The existing statute for regulation of companies in the country, viz. the Companies Act, 1956 had been under consideration for quite long for comprehensive revision in view of the changing economic and commercial environment nationally as well as internationally. The new law will facilitate business-friendly corporate regulation, improve corporate governance norms, enhance accountability on the part of corporates/ auditors, raise levels of transparency and protect interests of investors, particularly small investors.

The salient features of the new Companies law are: Business friendly corporate Regulation/ pro-business initiatives; e-Governance Initiatives; Good Corporate Governance and CSR; Enhanced Disclosure norms; Enhanced accountability of Management; Stricter enforcement; Audit accountability; Protection for minority shareholders; Investor protection and activism; Better framework for insolvency regulation; and Institutional structure. Other important features of the Companies Bill, 2012 are:  

(i)   Enhanced Accountability on the part of Companies: 

(a) In addition to the concept of Independent Directors (IDs) introduced, the provisions in respect of their tenure and liability etc have been provided. Code for IDs provided in a new Schedule to the Bill. Databank for IDs proposed to be maintained by a body/institute notified by the Central Government to facilitate appointment of IDs. (Clauses 149(10); 149(11); 149(7); 150);

(b) Corporate Social Responsibility (CSR) Committee of the Board proposed in addition to other Committees of the Board viz Audit Committee, Nomination and Remuneration and Stakeholders Relationship Committee. These committees shall have IDs/non executive directors to bring more independence in Board functioning and for protection of interests of minority shareholders. (Clauses 135, 177 and 178);

(c)  Provisions in respect of vigil mechanism (whistle blowing) proposed to enable a company to evolve a process to encourage ethical corporate behavior, while rewarding employees for their integrity and for providing valuable information to the management on deviant practices. (Clause 177 (9) and 177 (10));

(d)   New provisions suggested for allowing re-opening of accounts in certain cases with due safeguards. (Clause 130 and 131).

(ii)     Audit Accountability:

(a) Rotation of auditors and audit firms being provided for. (Clause 139 (2));

(b) Stricter and more accountable role for auditor being retained. Provisions relating to prohibiting auditor from performing non-audit services revised to ensure independence and accountability of auditor.  (Clause 141 and Clause 144);

(c) National Advisory Committee on Accounting and Auditing Standards (NACAAS) proposed to be renamed as National Financial Reporting Authority (NFRA) with a mandate to ensure monitoring and compliance of accounting and auditing standards and to oversee quality of service of professionals associated with compliance. 

(iii) Facilitating Mergers/ Acquisitions:

Simplified procedure (through confirmation by the  Central Government), laid down for compromise or arrangement including for merger or amalgamation of holding companies  and wholly owned subsidiary (ies), between two or more small companies and for such other class or classes of companies as may be prescribed. This would result into faster decisions on approvals for mergers and amalgamations resulting effective restructuring in companies and growth in the economy. For other companies, such matters would be approved by Tribunal. (Clause 233 and 232).

(iv)   Investor Protection:

(a) Acceptance of deposits from public subject to a more stringent regime. (Clause 76);

(b) Provisions for Class Action Suits revised to provide minimum number of persons who may apply for such suits. Safeguards against misuse of these provisions also being included. (Clause 245).

(v)   National Company Law Tribunal (Tribunal): Keeping in view the Supreme Court's Judgment, on the 11th May, 2010 on the composition and constitution of the Tribunal, modifications relating to qualification and experience etc of the members of the Tribunal have been made. Appeals from Tribunal shall lie to National Company Law Appellate Tribunal. (Chapter XXVII).

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

CBEC on VCES

Dear Members,

The CBEC has issued Circular No. 170/5 /2013 ST dated 08.08.2013 (as attached) clarifying references received by the Board seeking further clarifications as regards the scope and applicability of the VCES Scheme. Some of the issues raised with reference to the Scheme have been clarified by the Board vide circular No. 169/4/2013-ST, dated 13.5.2013. The Union Finance Minister, Mr P. Chidambaram, has also released a booklet containing Frequently Asked Questions (FAQ) on Service Tax Voluntary Compliance Encouragement Scheme, 2013 in New Delhi today in the presence of Revenue Secretary, Chairperson and other members of Central Board of Excise & Customs and media.

Service Tax Voluntary Compliance Encouragement Scheme (VCES) announced by the Finance Minister in his Budget speech has come into effect on 10 th May, 2013. The objective of the scheme is to encourage disclosure of Tax dues and compliance of Service Tax law by the persons who have not paid service tax dues for the period from Oct, 2007 to Dec, 2012, either on account of ignorance of law or otherwise. On payment of the tax dues relating to the said period there will be complete waiver of interest, penalty and other proceedings/ consequences.

Best Wishes

CA. V.M.V.SUBBA RAO
Chartered Accountant

IndianCAs: Key Highlights of Companies Bill,2012

 

Key Highlights of Companies Bill,2012

1. Incorporation of a One Person Company has been permitted.
2. Numbers of permissible members in private company has been raised to 200 as against existing limit of 50 members.
3. Listed companies shall have at least 1/3rd of the total number of directors as Independent Directors and the Central Government may prescribe the minimum number of Independent Directors for any class of public companies.
4. Nominee director cannot be regarded as Independent Director.
5. Maximum term of ID has been restricted to five years at once subject to a maximum of two such terms.
6. Appointment of at least one woman director on the board of prescribed classes of companies has been made mandatory.
7. Appointment of at least one director resident in India, i.e. a director who has stayed in India for at least 182 days in the previous calendar year, is made mandatory for all companies. 
8. Maximum number of directors has been increased from twelve (12) to fifteen (15) directors .Further no Central Government approval is required to increase the maximum no. of directors beyond fifteen(15). Shareholders of companies may do so by passing a special resolution.
9. A person can hold directorship of up to 20 companies, of which not more than 10 can be public companies.
10. No listed companies shall appoint: 

            i. an individual as auditor for more than one term of five consecutive years, and
           ii. an audit firm as auditor for more than two terms of five consecutive years.

    11. Shareholders are at liberty to decide by passing resolution that audit partner and the audit team, be rotated every year

    12. CSR has been made mandatory for a company having net worth of Rs. 500 crore or more, or turnover of Rs.1,000 crore or more or net profit of Rs. 5 crore or more during any
           financial year.

    13. Such company is required to constitute a Corporate Social Responsibility Committee of the board (CSRC) which shall consist of three or more directors , out of which at least one
           director shall be an independent director.

    14. Such company shall spend, in every financial year, at least 2 % of the average net profits of the company made during three immediately preceding financial years, in pursuance of its              Corporate Social Responsibility Policy (CSRP).

    15. The provision for establishment of Serious Fraud Investigation Office (SFIO) by the Central Government is another significant feature of the bill.

    16. SFIO is empowered to arrest in respect of certain offence involving fraud.

    17. Changes have also been made to the grounds for winding up a company.

    18. Some other features of the bill include-

          i. Financial year will be uniform for all companies i.e. April-March.

         ii. Restriction on buyback of shares within one year from the last buy back.

         iii. Voting through electronic means.

        iv. Capping director's remuneration at 5% of the net profits of the company.

         v. The concept of Dormant Company has been introduced.

        vi. Special courts for speedy trials.

| Ashwin Nagar | FCA and SAP-Finance & Consolidations |+919833015352

Success is not permanent and failure is not final

 

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IndianCAs: The Companies Act, 2012 - Knowledge Sharing [1 Attachment]

 

[Attachment(s) from Ashwin Nagar included below]

Dear Friend,

 

Please find the attached New companies bill, 2012 passed by Rajya sabha yesterday and which was passed in Lok Sabha on 18th Dec, 2012.

Have a happy reading.

Shared by: Viju patel <rajuvijupatel@rediffmail.com>

Thanks,

| Ashwin Nagar | FCA and SAP-Finance & Consolidations |

Success is not permanent and failure is not final

 

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Attachment(s) from Ashwin Nagar

1 of 1 File(s)

The_Companies_Bill_2012.pdf

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Extension of due date for filing of Returns of Income from 31.07.2013 to 05.08.2013

Extension of due date for filing of Returns of Income from 31.07.2013 to 05.08.2013. -------------------------------------------------------------------------------------------------------------------------------- The due date for filing return of Income has been extended from 31.07.2013 to 05.08.2013.

Case Law on Sec 40(a)(ia)

 Dear Members,

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

CIT vs. Vector Shipping Services (P) Ltd (Allahabad High Court)

S. 40(a)(ia) disallowance applies only to amounts "payable" as of 31st March and not to amounts already "paid" during the year. Merilyn Shipping (SB) approved

The assessee engaged Mercator Lines Ltd to perform ship management work on behalf of the assessee for which it paid an amount of Rs. 1.17 crore. The assessee claimed that the amount paid by it to Mercator was a 'reimbursement of salaries' and that as Mercator had deducted TDS on the payments made by it to the employees, the assessee was not required to deduct TDS. The AO disagreed and disallowed the entire payment u/s 40(a)(ia). The Tribunal upheld the assessee's claim and held that no TDS was required to be deducted on a reimbursement. It also relied on Merilyn Shipping and Transport Ltd 136 ITD 23 (SB) where it was held that s. 40(a)(ia) applied only to amounts that were "payable" as at the end of the year and not to amounts that had already been "paid" during the year. On appeal by the department, HELD dismissing the appeal:

The revenue cannot take any benefit from the observations made by the Special Bench of the Tribunal in Merilyn Shipping and Transport Ltd 136 ITD 23 (SB) to the effect that s. 40 (a) (ia) was introduced by the Finance Act, 2004 w.e.f. 1.4.2005 with a view to augment the revenue through the mechanism of tax deduction at source. S. 40(a)(ia) was brought on the statute to disallow the claim of even genuine and admissible expenses of the assessee under the head 'Income from Business and Profession' in case the assessee does not deduct TDS on such expenses. The default in deduction of TDS would result in disallowance of expenditure on which such TDS was deductible. On facts, tax was deducted as TDS from the salaries of the employees paid by Mercator Lines and the circumstances in which such salaries were paid by Mercator Lines for the assessee were sufficiently explained. It is to be noted that for disallowing expenses from business and profession on the ground that TDS has not been deducted, the amount should be payable and not which has been paid by the end of the year.

Contrast with the view in Crescent Export Syndicate (Cal) & Sikandarkhan N. Tunvar (Guj). But see Vegetable Products 88 ITR 192 (SC) where it was held that in the case of doubt the view in favour of the assessee should be followed

ITR Trouble Shooting Guide

Trouble Shooting Guide for Problems in accessing www.incometaxindiaefiling.gov.in - (31-07-2013)

---

TROUBLE SHOOTING GUIDE FOR PROBLEMS IN ACCESSING WWW.INCOMETAXINDIAEFILING.GOV.IN

Since ICAI was reported of the difficulties being faced while uploading the income tax returns in the e-filing website, the matter was taken up with appropriate authorities. The authorities have shared a Trouble Shooting guide for problems in accessing the www.incometaxindiaefiling.gov.in with us with a request to spread the message. Members interested may please click on the link below.

TROUBLE SHOOTING GUIDE

Considering the difficulties being faced by assessees at large, ICAI had requested CBDT to extend the due date of e-filing return of income. Accordingly, the date has been extended to 05.08.2013.

For determining the total income of an Indian branch

For determining the total income of an Indian branch receipt arising on account of commercial services rendered by it to American head office to be considered. [Wellinx inc. v/s ADIT (international taxation) (2013) 35 taxmann.com 420 (Hyderabad - Tribunal)].

Analysis and Issues in Schedule AL- ITR 3 & ITR 4

Analysis and Issues in Schedule AL

(Statement of Assets and Liabilities at the end of the Year)

ITR 3 & 4

This is a new schedule incorporated in ITR 3 & 4 for the Assessment Year 2013-14. An individual assessee is required to submit Assets and Liabilities at the end of the year 31^st March, 2013.  It is mandatory if total income of the assessee exceeds Rs.25 Lakhs.

ITR 3 & ITR 4

Total Income ---à Part B-TI –Computation of Total Income- Column-13

Total Income

Aggregate income of all 5 heads of income after setting of losses and deductions under Chapter VIA.

ITR Instructions to fill Schedule AL

·         (i) This Schedule is to be filled giving details of any property held by the assessee and the corresponding liabilities, other than those included in the balance sheet filled in Part A – BS of the return.

·         (ii) The assets to be reported will not include personal effects, i.e. to say, movable property (including wearing apparel and furniture) held for personal use by the assessee or any member of his family dependent on him but excludes items mentioned in column a, b, c and d of column 2 under column A of the Schedule.

·         (iii) For the purpose of column b of column 2 under column A, jewellery includes.-

(a) Ornaments made of gold, silver, platinum or any other precious metal or any alloy containing one or more of such precious metals, whether or not containing any precious or semi-precious stone, and whether or not worked or sewn into any wearing apparel

(b) Precious or semi-precious stones, whether or not set in any furniture, utensil or other article or worked or sewn into any wearing apparel

Regards,

CA.VMV S RAO

Date extended for filing of online return for the first quarter 2013-14 to 07-08-2013

Circular dated 25-07-2013 – date extended for filing of online return for the first quarter 2013-14 to 07-08-2013 and last date of filing of hardcopy of return 10-08-2013. Last date of filing of annexure 2C and 2D online 07-09-2013 and filing of hardcopy annexure 2C and 2D is 10-09-2013.

Prepayment charges for closure of loan account allowed

Prepayment charges for closure of loan account which was taken for acquisition of property are allowable under section 24(b) of the Income Tax Act. [Windermere properties (Pvt.) limited v/s DY. CIT [2013]34 taxmann.com 109(Mumbai-Tribunal)].

Time for realization and repatriation to India

Time for realization and repatriation to India of Value of goods or software exported would be 9 months from date of export w.e.f 01-04-2013. [Circular 14 of 22-07-2013].

Rent received from renting of flats held as stock-in-trade

Rent received from renting of flats held as stock-in-trade shall be taxable under the head "House Property".[The High Court of Delhi at New Delhi- New Delhi Hotels Limited versus ACIT].

Similar to the case Azimganj Estate (P.) Ltd. v. CIT (2012) 206 Taxman 308 (Cal.).....On this issue, the Calcutta High Court held that the rental income from the unsold flats of a builder shall be taxable as “income from house property” as provided under section 22 and since it specifically falls under this head, it cannot be taxed under the head “Profit and gains from business or profession”. Therefore, the assessee would be entitled to claim statutory deduction of 30% from such rental income as per section 24. The fact that the said flats have been claimed as not chargeable to wealth-tax, treating the same as stock-in-trade, will not affect the computation of income under the Income-tax Act, 1961

CBDT Instruction Regarding Grant Of Interest U/s 244A On Refunds

CBDT Instruction Regarding Grant Of Interest U/s 244A On Refunds

Pursuant to the judgement of the Delhi high Court in Court On Its Own Motion Vs, UOI 352 ITR 273 the CBDT has issued Instruction No. 7/2013 dated 15.07.2013 stating that when the delay in processing the refund is not attributable to the assessee but is due to the fault of the Revenue, interest should be paid under section 244A of the Income-tax Act. The High Court had held that false or wrong uploading of past arrears and failure to follow the mandate before adjustment is made under Section 245 of the Act, cannot be attributed and treated as fault of the assessee. The CBDT has directed that in view of the direction of the High Court, in no case should interest u/s 244A of the Act be denied to the assessee where the assessee is not at fault. It is also stated that the observation of the High Court should be strictly kept in mind while dealing with such matters

Amendment to Securities Laws

An Ordinance to Amend the Securities Laws Promulgated; SEBI would have now Powers to Regulate any Pooling of Funds Under An Investment Contract Involving A Corpus Of Rs.100 Crore Or More, Attach Assets In Case Of Non-Compliance And Chairman SEBI would have Powers to Authorize The Carrying out of Search and Seizure Operations, As Part of Efforts to Crack Down on Ponzi Schemes
The President was pleased to promulgate an Ordinance to amend the Securities Laws today. This was consequent to the approval of the Cabinet, which met on July 17, 2013, to amend Securities and Exchange Board of India (SEBI) Act and related Acts for providing more powers to the capital markets regulator for enforcement against illegal Collective Investment Schemes and to curb insider trading.

Owing to new and innovative methods of raising funds from investors, such as art funds, time-share funds, emu /goat farming schemes, there has been regulatory gap /overlap regarding types of instruments / fund raising. At the same time, SEBI receives complaints against unapproved fund raising activities of certain companies that claim that they do not come under the purview of SEBI Collective Investment Scheme regulations. With the amendments in force now, SEBI would have powers to regulate any pooling of funds under an investment contract involving a corpus of Rs.100 Crore or more, attach assets in case of non-compliance and Chairman SEBI would have powers to authorize the carrying out of search and seizure operations, as part of efforts to crack down on ponzi schemes.

Besides, SEBI would have powers to seek information, such as telephone call data records, from any persons or entities in respect to any securities transaction being investigated by it. Establishment of Special Courts enabled by this Ordinance would fast-track the resolution of pending SEBI related cases.

These amendments to the SEBI Act, SCR Act and the Depositories Act were finalized after detailed consultations with SEBI and other Ministries and Departments including MHA, DoT, MCA, DFS etc. Government believes that these amendments would give SEBI the legal backing to clamp down on unscrupulous entities that are using newer methods to take gullible investors for a ride. The promulgation of the Ordinance demonstrates the firm commitment and resolve of the Government to act with speed and alacrity to curb irregularities and frauds in securities market.


*****

DSM/RS/ka
(Release ID :97305)

Gold Import Vs CAD

RBI tightens gold import norms to squeeze CAD

The Reserve Bank of India (RBI) on Monday streamlined its gold import policy to ensure at least 20 per cent of the yellow metal sourced from abroad was made available to the country's gems & jewellery exporters. Also, for domestic use, the nominated banks and importing agencies have been made responsible for making gold available only to the entities engaged in jewellery business and bullion dealers supplying gold to jewellers.

While the move is aimed at helping manage the country's precarious current account deficit (CAD) situation and improve gold availability for exporters, domestic prices of the yellow metal might rise. For instance, insisting on meeting certain export levels before allowing fresh import of gold would limit the availability for domestic use, pushing prices up.

The revision has been done in consultation with the government and will be applicable to gold imports in any form /purity, including gold coins.

Besides banks and other agencies that import gold, the new regime would cover the bullion refineries that imported gold in Dore form (raw form), RBI said in statement.

RBI had imposed certain restrictions on import of gold in various forms earlier, too. Those were applicable on nominated banks, agencies, premier, star trading houses, units in special economic zones (SEZs) and export-oriented units, which were permitted to import gold for use in the domestic sector.

The central bank said any import of gold under any type of scheme would follow the 20-80 principle. The present instructions on import of gold on a consignment basis and the letter-of-credit restrictions stand withdrawn.

Under the new norms, an entity importing 100 kg of gold (which will have to be kept in bonded warehouse), for example, will have to release 20 kg to exporters (of gold, gold jewellery) against an undertaking to Customs authorities.

This entity would be permitted by the Customs to make fresh imports only to the extent of actual exports out of the 20 kg of gold held in the bonded warehouse, RBI added. For instance, it will be permitted to undertake fresh imports only after at least 15 kg of this 20 kg has been exported.

The latest move is expected to lead to higher domestic prices, say experts. Naveen Mathur, head of commodities at Angel Broking, said too many restrictions on imports with complex procedures would lead to supply squeeze in the domestic market, pushing prices.

RBI also said the government would issue separate instructions, if any, to the Customs authorities/Directorate General of Foreign Trade to operationalise and monitor these import restrictions.

The latest scheme follows exporters' meeting last month with Commerce Minister Anand Sharma. They had complained that banks were not importing gold for exporters and that jewellery exports were suffering due to low gold availability.

Jewellery exports fell in the first two months of the current financial year, despite a favourable currency and improving economic conditions in the US, one of India's major export markets.

"This will help the domestic and export industry. That's because there was no gold available. The move will increase supply," said Gitanjali Gems Managing Director Mehul Choksi.

Given the low availability of gold (due to increased import duty, and banks being allowed gold imports only on a consignment basis), monthly gold jewellery exports fell a staggering 73 per cent to $556.81 million in June, from $2,062.32 million in the same month a year earlier. In rupee terms, these exports plunged 72 per cent to Rs 3,251.80 crore, from Rs 11,555.17 crore in the month the previous year, according to data compiled by the Gems & Jewellery Export Promotion Council.

RBI said banks and agencies should also ensure compliance with instructions while effecting the foreign exchange transactions put through by/for their clients.

RBI also said: "Entities/units in SEZs and EoUs, premier and star trading houses are permitted to import gold exclusively for the purpose of exports only." This means the units that were allowed to supply certain part of gold in domestic market would now not be able to do so.

Source: Business Standard