CA NeWs Beta*: TAX Updates for the month of Nov 2015 on Income Tax FEMA, VAT, etc

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Sunday, December 13, 2015

TAX Updates for the month of Nov 2015 on Income Tax FEMA, VAT, etc



Notification, Circular and Press Release
·       The CBDT has issued a press release dated 26.11.2015 pointing out that after notification of ICDS, it has been brought to the notice of the CBDT by the
stakeholders that certain provisions of ICDS may need further clarification/ guidance for proper implementation. These implementation issues raised by the stakeholders have been referred to an expert committee comprising of departmental officers and professionals and the committee is currently examining these issues. The CBDT has stated that in order to issue a comprehensive guidance/clarification on this matter, the stake holders and general public are requested to bring out issues/points which in their opinion would require further clarification/guidance for proper implementation of the provisions of the ICDS. These issues/points may be submitted by 15th December, 2015 at the email address (dirtpl3@nic.in) or by post at the stated address.
·       The CBDT has issued a press release dated 20.11.2015 stating that the Finance Minister in his Budget Speech, 2015 has indicated that the rate of corporate tax will be reduced from 30% to 25% over the next four years along with corresponding phasing out of exemptions and deductions. This is a step towards simplification of tax laws, which is expected to bring about transparency and clarity. The CBDT has identified the precise provisions that will be affected as a result of the phasing out plan. The CBDT has invited comments on the aforesaid phasing out plan within 15 days
·       In National Petroleum Construction Company Vs. DIT in ITA Nos. 143, 144, 533/2013 and 795/2014, the Delhi High Court in its order dt. 13.08.2015, dt. 20.08.2015 and 28.09.2015 directed the Income Tax Department to formulate and implement a standard operating procedure relating to seamless transfer of case from one standing counsel to another,  filling re-filling of appeal in time and maintaining record of order of SC or High court which has attained finality relating to any aspect whether in favor of assessee or department.
·       Pursuant to the said directives of the High Court, the Chief Commissioner has issued a detailed document titled “PROCEDURE FOR FILING APPEALS, CURING DEFECTIVE APPEALS AND EFFECTIVE REPRESENTATION IN THE DELHI HIGH COURT”. The said document sets out the standard operating procedure to be followed by the department in all cases.
·       Pursuant to the solemn promise made by Prime Minister Narendra Modi that a mechanism would be set up to ensure that Assessing Officers are accountable for the unreasonable additions that they make in the assessment order, the CBDT has issued Instruction No. 17/2015 dated 09.11.2015 in which it has admitted that the tendency of the AOs to frame high-pitched and unreasonable assessment orders reflects harassment of taxpayers and leads to generation of unproductive work for the Department.
·       The CBDT has consequently set up a committee of high-ranking officials which will examine whether there is a prima-facie case of high-pitched assessment, non-observance of principles of natural justice, non-application of mind , gross negligence or lack of involvement of assessing officer. The Committee would ascertain whether the addition made in assessment order are not backed by any sound reason or logic, the provisions of law have grossly been misinterpreted or obvious and well established facts on records have out rightly been ignored. The Committee would also take into consideration whether the principles of natural justice have been followed by the assessing officer. If it is established that unreasonable and high-pitched additions have been made by the assessing officer, a report would be sent to the Pr. CCIT by the Local Committee who will then take suitable administrative action against the Assessing Officer. Further, the departmental position as determined by the Local Committee in such cases would be appropriately presented before the Appellate Authorities so that litigation is curtailed.

·       The CBDT has issued Instruction No. 16 of 2015 dated 06.11.2015 in which it has taken a stern view of the fact that the time limit of six months specified in s. 12AA(2) of the Income-tax Act 1961 for passing an order granting or refusing registration under s. 12AA are not being adhered to by the Commissioners of Income Tax (Exemptions). The CBDT has directed the Chief Commissioners to monitor that the Commissioners are adhering to the time limit and to take suitable administrative action in the case of laxity
·       The Ministry of Finance has issued a Notification dated 29.10.2015 in which it is stated that where the variation between the arm’s length price determined under section 92C and the price at which the international transaction or specified domestic transaction has actually been undertaken does not exceed one percent of the latter in respect of wholesale trading and three percent of the latter in all other cases, the price at which the international transaction or specified domestic transaction has actually been undertaken shall be deemed to be the arm’s length price for Assessment Year 2015-2016.
·       Case Laws

·       COMMISSIONER OF INCOME TAX vs.DERBY TEA & INDUSTRIES PVT. LTD. (2015) 45 CCH 0242 Kol Trib
o   Apex Court in the case tit led as Collector Land Acquisition, vs. Mst. Katiji & Ors (1987 AIR 1353, 1987 SCR (2) 387) analyzed the situation while dealing with the delay on behalf of the Government and observed as enumerated below: When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non deliberate delay. "It must be grasped that judiciary is respected not on account of its power to legalise injustice on technical grounds but because it is capable of removing injustice and is expected to do so. (para 3)

o   DEPUTY COMMISSIONER OF INCOME TAX vs.BENGAL AMBUJA HOUSING DEVELOPMENT LTD. (2015) 45 CCH 0232 KolTrib
While computing the profits for the purpose of deduction the loss incurred by the assessee in any other eligible industrial undertaking could not be set off against the profits a particular industry that would qualify for deduction.
o   HEMANT KUMAR GODARA vs.ASSISTANT COMMISSIONER OF INCOME TAX, (2015) 45 CCH 0233 MumTrib
Where Tax authorities had drawn adverse inference only on basis of denial of supply of machinery to assessee’s personal name by supplier despite overwhelming evidences furnished by the assessee to support the claim of manufacture and sale of goods, the tax authorities were not justified in holding that assessee was not manufacturing goods; and sssessee was entitled to deduction.
o   SWAMI DAYANAND EDUCATIONAL TRUST vs.COMMISSIONER OF INCOME TAX,        (2015) 45 CCH 0256 DelTrib
when no allegation had been brought on record that Assessee was conducting activities beyond its object as per trust deed or fees and donations were being used for activities which were not charitable and beyond ambit of objects of assessee applicant trust, Applicant trust eligible for registration u/s 12A.
o   COMMISSIONER OF INCOME TAX & ORS. vs.FIVE VISION PROMOTERS PVT. LTD. & ORS. (2015) 94 CCH 0101 DelHC
Provisions of s 68 can be invoked only where assessee offers no explanation at all or explanation offered is unsatisfactory; and addition thereunder can be made only on that condition.

o   Transfer Pricing

o   COMMISSIONER OF INCOME TAX vs.NESTLE INDIA LTD. (2011) 337 ITR 0103
Transfer pricing—Applicability of Chapter X—Deductibility of royalty payment of associated concern—Sec. 92 does not apply in respect of ‘payments of royalty etc.’ which are not the part of regular business carried on between a resident and a non-resident
o   International Taxation

o   DIRECTOR OF INCOME TAX vs.INFRASOFT LTD. (2013) 85 CCH 0319 DelHC
Consideration received by the Assessee on grant of licences for use of software is not taxable as royalty within the meaning of Article 12(3) to the DTAA between India and the USA.


Service Tax Updates            By CA Abhishek Batra          9811611880

Summary of Developments in Service Tax during the month of
November, 2015
1. Notification No. 23/2015-ST & 25/2015-ST Dated 12.11.2015
SBC   made   applicable   w.e.f.   15.11.2015.   The   issues   regarding   the
amount on which SBC is payable has been clarified by Notification No.
23 & 25.
2. Circular no. 187/6/2015-ST Dated 10.11.2015
The   board   has   issued   a   circular   for   speedy   disposal   of   refund applications of exporters of services. As per the circular, the exporters are required to furnish a certificate of CA. (Statutory Auditor in case of company) along with an undertaking. On receipt of these documents, jurisdictional   Asstt.   Commissioner/Dy.   Commissioner   will   make provisional   payment   of   80%   of   amount   of   refund   claimed   within   5 working days of receipt of the documents.
3. Circular no. 188/7/2015-ST Dated 16.11.2015
Codes for SBC allotted by Controller General of Accounts & made public  vide this circular. The codes allotted are:
Tax collection       Other Receipts                        (Interest) Penalties
    00441493        00441494                              00441496
4. Circular no. 189/8/2015-ST Dated 26.11.2015
Clarification issued by the Board vide this Circular confirming that all activities incidental with testing related to agriculture and agricultural produce shall be exempt. The Board has specified that-testing cannot stand in isolation of certification and other ancillary activities. Testing cannot be random, somebody has to register for testing. If certificate is not received and seeds are not tagged, testing is irrelevant. Therefore, all processes are a part of the composite process and cannot be separated from testing.
Important judgments:-
M/s Meru Cab Company Pvt. Ltd. Vs. Comm. Of Central Excise, Mumbai-II
1. The tangible goods in the form of radio taxi are given to the driver and there is no transfer of the possession of the vehicle but physical transfer has taken place, but the effective control of such taxi still is in the hands of the appellant.
2. The driver of the radio taxi is not permit holder and he does not have independent authorization for plying the vehicles and is allowed to take passengers on instructions and directions from the appellant only.
3. The driver is collecting the fare amount from the customer on behalf of the appellant, as fare invoice for the journey is created and issued in the name of the appellant.
4. The entire findings of the adjudicating authority has been misdirected to hold   that   the   driver   keeps   bulk   of   the   amount   of   the   journey   and deposits   only   small   portion   of   the   amount   as   agreed   between   the appellant and the driver, which indicates the radio taxi is given for use and covered under Supply of Tangible Goods for Use. The said agreement does not any where indicate that the driver are having the possession of the vehicles for their use, which is the most important aspect to be covered under category of services under supply of tangible goods.
Vat Updates                   by Ad Suresh Aggarwal                    9810032846

Notifications, Circulars and Orders issued by DVAT Department

1)    The Department has issued an Advisory Notice dated 03/11/2015 stating that in the IITF-2015 from 14/11/2015 to 27/11/2015, The Registered Dealer shall use their regular TIN no. for making sales at IITF and other dealers shall take registration as casual dealer and will follow the law as per DVAT Act and DVT rules.

2)    The Government has issued a Notification No. 901 dated 06/11/2015by which LG has appointed SDM as VAT authorities to assist the Commissioner of VAT.

3)    The Government has issued a Notification No. 906 dated 12/11/2013 by which Amended DVAT-16, Annexure 2A & 2B, and also DVAT-30 & 31 and introduced Annexure1E. These forms and Annexure are basically amended for changes in policy and rate of tax in respect of Purchase / Sales of Diesel & Petrol and also introduction for providing information by e-commerce entities.

4)    The Government has issued a Notification No. 907 dated 12/11/2015 stating that in case of Local Purchased Goods with ITC claim is used for Inter State Sales then ITC credit is required to be reduced by 100 percent in case of sales of Cigarettes and accordingly made provision of entry in DVAT-16 also.

5)    The department has issued Notification No. 1003-1014 dated 12/11/2015 and extended the last date of filing online return in EC-II & EC-III up to 30/11/2015 for the quarter ending June-2015 and September-2015.

6)    The department has issued a Circular No. 29 dated 16/11/2015 and extended the date of filing online / hardcopy of the return in DVAT-16 / DVAT-17 / DVAT-48 up to 20/11/2015 for the quarter ending September-2015.

7)    The Government has issued a Notification No. 913 dated 16/11/2015 and amended the third schedule in which entry no. 86 (xxviii) amended and now “Spare parts, Accessories and components other than electric motors, switchgears and starters” are liable to be taxed @5%. Meaning thereby that the spare parts, Accessories and components of Electric Motors, Switchgears and starters are taxable @12.5%. Also amended Fourth Schedules and Petroleum products such as Naphtha, Lubricants, Furnace Oil, Mixtures and combination of these products are taxable @ 20%.

8)    The Government has issued a Notification No. 914 dated 16/11/2015 and stated that an application for refund or an addition or revised application for refund from the embassies, High Commission and International Organization listed in the entry at serial No. 1 of the sixth schedules can be considered up to a period of one year from the end of relevant quarter.


9)    The department has issued a Circular No. 30 dated 18/11/2015 and stated that online statutory forms against central purchases can be uploaded if the ratio of purchase and sales is 60% or above in a quarter in which forms required or otherwise up to next quarter otherwise, Ward officer will scrutinized the facts and approved the file and only then forms would be downloaded. Also stated that if RC applied for cancellation or notice issue for cancellation or if otherwise already cancelled, then also forms would be downloaded only after approval by the concerned ward officer.

10)                  The department has issued Notification No. 1062-73 dated 23/11/2015 and extended the last date of online filing of DP-1 up to 31/12/2015 for the dealers registered up to 31/10/2015.

11)                  The department has issued a Circular No. 31 dated 26/11/2015 and directed the Zonal Authorities to restored the RC of the dealer within 3 working days once the proposal for restoration of registration is approved by the Competent Authority.

MCA Updates             By Kiran Amarpuri                     9911127572

02-11-2015
MCA has notified New Form AOC - 4 CFS (Form for filing consolidated financial statements and other documents with the Registrar), which is available for filing w.e.f 1st Nov 2015.
Further, the Versions of forms AOC-4 (XBRL) and AOC - 4​ Attachment are modified w.e.f 1st Nov 2015. MCA has also made necessary changes w.r.t SRN of form ADT-1 filed for intimation of appointment of the auditor in case of Government Companies and First Auditors under section 139(5)/ (6)/ (7) of the Companies Act, 2013. Now all such companies can enter the SRN ‘Z99999999’ for any such appointment while filing Form AOC - 4. Only new version of the eForm will be acceptable. Stakeholders are requested to plan accordingly and ensure that you have downloaded the latest version for filing and uploading the latest version only. Form-wise date of last version change is available at on the website of MCA.

09/11/2015

MCA has made amendments to the Companies (Share Capital and Debentures) Rules, 2014 and notified the Companies (Share Capital and Debentures) Third Amendment Rules, 2015 which shall come into force from the date of their publication in the Official Gazette. MCA allowed Infrastructure Debt Fund Non-Banking Financial Companies, as defined in clause (b) of direction 3 of Infrastructure Debt Fund Non-Banking Financial Companies (Reserve Bank) Directions, 2011 and Companies permitted by a Ministry or Department of the Central Government or by Reserve Bank of India or by the National Housing Bank or by any other statutory authority to issue debentures for a period exceeding ten years.

Last date of filing forms AOC-4 (XBRL, non-XBRL & CFS) and MGT-7 have been extended till 30th Dec 2015 without additional fee.
Version of Form 4 and 11 LLP is modified w.e.f 29th Nov 2015. Stakeholders are requested to plan accordingly


Foreign Exchange Management Act 1999 ‘FEMA’ –Nov 2015 Updates – CA Sulabh Lohia 98103 53219,

(November 05, 2015 – A.P. (DIR Series) Circular No.27 of Reserve Bank of India ‘RBI’ – Software Export – Filing of Bulk SOFTEX – Further Liberalisation)

Attention of Authorised Dealers is invited to A.P. (DIR Series) Circular No. 80 dated February 15, 2012, A.P. (DIR Series) Circular No. 66 dated January 01, 2013 and A.P. (DIR Series) Circular No. 43 dated September 13, 2013, in terms of which a software exporter, whose annual turnover is at least Rs.1000 crore or who files at least 600 SOFTEX forms annually on an all India basis, is eligible to declare all the off-site software exports in bulk in the form of a statement in excel format, to the competent authority for certification on monthly basis.

In order to provide benefits to small exporters also, it has been decided to extend this facility to all software exporters. Accordingly, all software exporters can now file single as well as bulk SOFTEX form in excel format to the competent authority for certification. The SOFTEX form is given at Annex I. Since the SOFTEX data from STPI/SEZ is being transmitted in electronic format to RBI, the exporters are required to submit the SOFTEX form in duplicate as per the revised procedure. STPI/SEZ will retain one copy and handover the duplicate copy to the exporters after due certification.

As hitherto, the software exporters can generate SOFTEX form number (single as well as bulk) for use in off-site software exports from the website www.rbi.org.in. In order to generate the SOFTEX number/s, the applicant exporter has to fill-in the online form (Path www.rbi.org.inà Formsà FEMA Formsà Printing EDF/SOFTEX Form No.). The specimen of the online form and the advice are given at Annex II.

As per FEMA, exporters are required to complete the SOFTEX form using the number so allotted and submit it first to the competent authority for certification and then to the AD for further necessary action, as hitherto.


(November 26, 2015 – A.P. (DIR Series) Circular No.29 of RBI – Import of Goods In India – Evidence of Import)

Attention of the Authorised Dealers is invited to para A.10.1 of A.P. (DIR Series) Circular No. 106 dated June 19, 2003 in terms of which an importer has to submit as evidence of import, (a) the exchange control copy of the Bill of Entry for home consumption; (b) the exchange control copy of the Bill of Entry for warehousing, in the case of 100% Export Oriented Units (EOUs); or (c) Customs Assessment Certificate or Postal Appraisal Form as declared by the importer to the Customs Authorities.

With the establishment of Free Trade Warehousing Zones / SEZ Unit warehouses, imported goods can be stored therein, for re-export / re-selling purposes for which Customs Authorities issue Ex-Bond Bill of Entry. AD banks are advised to consider the Bill of Entry issued by Customs Authorities named as Ex-Bond Bill of Entry or by any other similar nomenclature, as evidence for physical import of goods. Further, in cases where goods have been imported through couriers, the Courier Bill of Entry, as declared by the courier companies to the Customs Authorities, may also be considered as evidence of import of goods.

(November 26, 2015 – A.P. (DIR Series) Circular No.30 of RBI – No fresh permission/ renewal of permission to LOs of foreign law firms- Supreme Court’s directions)

Attention of Authorised Dealers Category - I (AD Category - I) banks is invited to clause 3(f) of A. P. (DIR Series) Circular No.77 dated June 29, 2007, in terms of which AD Category I banks could allow advance remittance, without bank guarantee or an unconditional, irrevocable standby letter of credit up to USD 50 million, in the case of import of aircrafts/ helicopters/ other aviation related purchases by scheduled air transport operators permitted by the Director General of Civil Aviation (DGCA), after ensuring that the requisite approval of the Ministry of Civil Aviation (MoCA)/ DGCA / other agencies in terms of the extant Foreign Trade Policy, had been obtained by the company for import.

Director General of Foreign Trade vide Notification No. 24/2015-2020 dated October 9, 2015 has announced amendment in Policy condition 1 of Chapter 88 of ITC (HS), 2012-Schedule – 1 (Import Policy). Accordingly, AD Category – I banks may, while allowing advance remittance without bank guarantee or an unconditional, irrevocable standby letter of credit up to USD 50 million, ensure that only the requisite approval of DGCA for import of aircrafts/helicopters in terms of the extant Foreign Trade Policy has been obtained by the company for operating Scheduled or Non-Scheduled Air Transport Services (including Air Taxi Services). In other words, the approval from MoCA will not be required.

(November 26, 2015 – A.P. (DIR Series) Circular No.31 of RBI – Investment by Foreign Portfolio Investors (FPI) in Corporate Bonds)

As per extant regulations, all future investments by FPI in NCDs/bonds shall be required to be made in securities with a minimum residual maturity of three years.

On a review, it has been decided to permit FPI to acquire NCDs/bonds, which are under default, either fully or partly, in the repayment of principal on maturity or principal installment in the case of amortising bond. The revised maturity period of such NCDs/bonds, restructured based on negotiations with the issuing Indian company, should be three years or more.

The FPI which propose to acquire such NCDs/bonds under default should disclose to the Debenture Trustees the terms of their offer to the existing debenture holders / beneficial owners from whom they are acquiring. Such investment should be within the overall limit prescribed for corporate debt from time to time (currently Rs. 2443.23 billion). All other existing conditions for investment by FPIs in the debt market remain unchanged.

(November 30, 2015 – A.P. (DIR Series) Circular No. 32 of RBI – Revised Framework of External Commercial Borrowings ‘ECB’)

Considering that sufficient time has passed since the extant ECB framework was operationalized, a need was felt to undertake a review based on the experience gained in administering the ECB regime and the current financing ecosystem which, inter alia, allows issuance of Indian Rupee (INR) denominated bonds overseas by a wide set of borrowers. Accordingly, a draft of the proposed ECB framework was placed in the public domain on September 23, 2015 for wider consultation. Based on the responses received and, in consultation with the Government of India, a revised ECB framework based on the following overarching principles has been finalised:

(i). A more liberal approach, with fewer restrictions on end uses, higher allin-cost ceiling, etc. for long term foreign currency borrowings as the extended term makes repayments more sustainable and also minimizes roll-over risks for the borrower;

(ii). A more liberal regime for INR denominated ECBs where the currency risk is borne by the lender;

(iii). Expansion of the list of overseas lenders to include long-term lenders, such as, Insurance Companies, Pension Funds, Sovereign Wealth Funds;

(iv). Only a small negative list of end-use restrictions applicable in case of long-term ECB and INR denominated ECB;

(v). Alignment of the list of infrastructure entities eligible for ECB with the Harmonised List of the Government of India.

The framework for ECB, as a means to attract flow of funds from abroad will continue to be a major tool to calibrate our policy towards capital account management in response to evolving macroeconomic situation. These guidelines will be reviewed after one year based on the experience and evolving macro-economic situation.

The revised ECB framework will comprise the following three tracks:
Track I : Medium term foreign currency denominated ECB with Minimum Average Maturity (MAM) of 3/5 years.
Track II : Long term foreign currency denominated ECB with MAM of 10 years.
Track III : Indian Rupee denominated ECB with MAM of 3/5 years.

The guidelines for the revised ECB framework specifying the parameters and other terms and conditions are separately set out by RBI in this Circular. It may be noted that these parameters will apply in totality and not on a standalone basis. Criteria for raising ECB under both the routes, viz., the automatic route where entities do not require the prior approval of the Reserve Bank for raising ECB and the approval route where entities can raise ECB only with the prior approval of the Reserve Bank are separately provided by the RBI.

The primary responsibility for ensuring that the ECB is in compliance with the applicable guidelines is that of the borrower concerned. Any contravention of the applicable provisions of ECB guidelines will invite penal action under the FEMA. The designated AD Cat I bank is also expected to ensure compliance with applicable ECB guidelines by their constituents.

For dissemination of information related to ECBs details, such as, the name of the borrower, amount, purpose and maturity of ECB contracted under the automatic and the approval routes shall be put on the Reserve Bank’s website, on a monthly basis, with a lag of one month to which it relates.

Entities raising ECB under extant framework can raise the said loans by March 31, 2016 provided the agreement in respect of the loan is already signed by the date the new framework comes into effect. For raising of ECB under the following carve outs, the borrowers will, however, have time up to March 31, 2016 to sign the loan agreement and obtain the Loan Registration Number (LRN) from the Reserve Bank by this date:

(i). ECB facility for working capital by airlines companies;
(ii). ECB facility for consistent foreign exchange earners under the USD 10 billion Scheme; and
(iii). ECB facility for low cost affordable housing projects (low cost affordable housing projects as defined in the extant Foreign Direct Investment policy)

Involvement of Indian banks and their overseas branches/subsidiaries in relation to ECBs to be raised by Indian entities will be subject to prudential guidelines issued by the Department of Banking Regulation (DBR) of the Reserve Bank. Further, overseas branches/subsidiaries of Indian banks will not be permitted as lenders under Track II and III.

The new ECB framework will come into force from the date of publication, in the Official Gazette, of the relative Regulations issued under FEMA. These Regulations are being issued separately.


FEMA FAQ SERIES

What are the obligations of the Indian party, which has made direct investment outside India?

An Indian Party will have to comply with the following: -

-     Receive share certificates or any other documentary evidence of investment in the foreign JV / WOS as an evidence of investment and submit the same to the designated AD within 6 months;

-     Repatriate to India, all dues receivable from the foreign JV / WOS, like dividend, royalty, technical fees etc.;

-     submit to the Reserve Bank through the designated Authorized Dealer, every year, an Annual Performance Report in Part III of Form ODI in respect of each JV or WOS outside India set up or acquired by the Indian party;

-     report the details of the decisions taken by a JV/WOS regarding diversification of its activities /setting up of step down subsidiaries/alteration in its share holding pattern within 30 days of the approval of those decisions by the competent authority concerned of such JV/WOS in terms of the local laws of the host country. These are also to be included in the relevant Annual Performance Report; and

-     in case of disinvestment, sale proceeds of shares/securities shall be repatriated to India immediately on receipt thereof and in any case not later than 90 days from the date of sale of the shares /securities and documentary evidence to this effect shall be submitted to the Reserve Bank through the designated Authorised Dealer.

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