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Tribute to Shri P. N. Shah, Past President of the Society

PRADYUMNA NATVARLAL SHAH

(1st January, 1929 – 15th November, 2023)

MAHAMANAV PRADYUMNABHAI

 

Shri Pradyumnabhai (also known as Pradyumanbhai), the Bhishma Pita of CA Profession, left us as the Almighty called him to join His kingdom.

I have very fond memories of working with and interacting with Shri Pradyumanbhai over many years, for which I feel blessed.

He would call me for a meeting regarding his client’s foreign investments and / or matters connected with FERA / FEMA of his clients, and I would invariably tell him that I would go to his office to discuss, which I did. During the discussions, he gave a lot of credence to my knowledge of the subject, and that’s why I could solve his clients’ problems to their satisfaction.

He and our Firms were joint Auditors of a Public Limited Company. After my father’s death in 1977, I used to go to his office to discuss matters relating to that company with him and his Partner, Shri Indubhai Shah. During such discussions, he treated me as an equal while giving me the benefit of his knowledge and seniority and helping to resolve any issues.

Amongst others, he was an Independent Director of a reputed listed company, where he was the Chairman of the Audit Committee. After a few years, I was invited to join the Board of that Company as an Independent Director. At my first Board meeting of that Company, he welcomed me warmly and introduced me to the other members of the Board in eloquent words. Though he was the Chairman of its Audit Committee, he instructed the CFO to show me and obtain my approval of the quarterly and final financial results, which were approved by him.

Eventually, he retired as a Director of that Company because of his advanced age while I still continue as its Director. While parting, he requested the Chairman of that Company to make me the Chairman of its Audit Committee in his place, which position I still continue to hold.

His gracious, humble and fatherly approach towards me has taught me humility, sharing of knowledge and helping others in need. I have relied very heavily on his excellent analysis of the yearly Union Budget for my understanding. I have always gained knowledge from his brilliant articles in the Gujarati bi-weekly Vyapar on various aspects of Tax laws.

With his departure for his heavenly abode, I feel a void in my professional life, having lost a very fine human being.

CA Dilip J. Thakkar

 

Pradyumna Natvarlal Shah, popularly known as Pradyumanbhai and officially known as Shri P. N. Shah, is no longer with us. However, he would be remembered fondly and very regularly by many of us who came in contact with him during his illustrious innings as a Chartered Accountant. He will be remembered not only for his achievements in the profession but also because of his ever-helpful nature. Individuals die, but institutions never, and Pradyumanbhai was an institution himself. The fact that he was the Past President of ICAI, Past President of our BCAS, and closely associated with the Chamber of Tax consultants is an official introduction, but he was a very lovable human being and a great soul, and this is his true introduction.

I first came into his contact, although somewhat from a distance, in the year 1975 when BCAS’s popular program — Residential Refresher Course (RRC) was held in Dreamland Hotel at Mahabaleshwar. He was then chairman of the RRC Committee. I noticed that he had a very minute way of overseeing every group discussion and technical session. In the concluding session as a Chairman, he elaborated the essence of each technical session in such a manner that you really get the gist of the entire RRC. I was very much fascinated then by his abilities and developed a daydream that one day I would be able to make some attempt like Pradyumanbhai.

Meetings after that were quite frequent but from a distance. I never realised that the so-called distance just vanished when I first talked to him. I used to call Pradyumanbhai, Arvindbhai and Narayanbhai the BCAS trio. They used to be on the dais simultaneously on several occasions as brain trustees or in other capacities. The trio was shattered earlier by the demise of Narayanbhai, then Arvindbhai, and now it has disappeared from this physical world to occupy the position of stars in the sky.

He used to be a regular paper writer in both Residential as well as non-Residential RRCs, and his paper always used to give strength to the technical content of RRCs. His regular article in BCAJ in June, after the Finance Act was passed, always used to be a very simple and helpful feature to understand the ever-changing provisions of the Act. Besides this, he was quick to educate his professional colleagues on any new changes concerning Audit or taxation.

He used to be a great help to the Editor of BCAJ. I have enjoyed this privilege during my five-year tenure as BCAJ Editor. The journal requires page contents in multiples of four, i.e., the journal can be either 120 or 124 or 128 pages, etc. When the journal is falling short of content in this multiple of four, additional content is necessary and that too of precise length. Pradyumanbhai was such a great soul that he would provide useful content in exact words to adjust pages, and that too when you telephone at night and request content for the journal at a very short notice. He would always be available and was helpful and easily approachable.

Let’s all cherish his fond memories and try to emulate at least some of his qualities and that will be an appropriate Shraddhanjali to him.

CA Ashok Dhere

 

Shri Pradyumna Natvarlal Shah, known in the profession as “Shri P. N. Shah”, was a very respectable professional. At the age of 21, he was a Chartered Accountant and started his practice in Mumbai. Till his last, i.e., up to 15th November, 2023, he was in practice, as a partner of M/s. Manubhai & Shah LLP (formerly known as Shah & Co.) and M/s. Shah & Associates, Chartered Accountants. Since the “Corona” period i.e., March 2020, he was not physically attending the office but was working from his residence. He was so dedicated to the profession that every day he used to call the papers from his office and reply to those papers. Many opinions and articles were written by him even when he was not attending office. In fact, he had allotted one room of his residence as his office and was sitting in the said room for more than four hours a day to work.

Born on 1st January, 1929, Shri P. N. Shah had many laurels. He was President of the Institute of Chartered Accountants of India (ICAI) in the year 1983–84. He was also a President of the Bombay Chartered Accountants’ Society (BCAS) in the year 1968–69, and it was in his tenure that the first Residential Refresher Course (RRC) — the most sought-after event of the BCAS — took place. In the year 2002, he had settled the Trust in the name of BCAS Foundation. He had written many books for ICAI / BCAS, notably, (i) History of Accounting Profession Vol II published by ICAI (ii) Method of Accounting u/s. 145 of the Income tax Act and (iii) KarVivadSamadhan Scheme 1998 (Published by BCAS). Besides this, he was actively associated with many other professional and social organisations. He was on the Board of many limited companies including Banks. He was also associated with Gujarati News Paper Janmbhumi and Vyapar for more than five decades and was a regular columnist of Vyapar. After every budget, he used to write an articleon Budget in a very lucid and simple language,explaining the nuances of complicated provisions of the budget.

My association with him is since I became a Chartered Accountant. As he was staying in Santacruz, I went to take his advice on whether I should go into practice or service. His sincere advice was if you have an inclination to work hard and to serve the profession honestly then go into practice or otherwise choose service. So, I joined the practice. Thereafter, I often went to his house for some advice. When he was contesting for the Central Council Election of ICAI, I was working for him and was sitting in the election booths. Subsequently, when I contested the Central Council election of ICAI, he used to sit in my office and monitor the election very closely. He was always encouraging me to write articles and associate with other professional organisations. In fact, on his insistence, I joined the BCAS and subsequently, I became the Central Council Member of the ICAI. I have received many invaluable advice in my professional life and otherwise. Occasionally, I travelled with him to address seminars / conferences of the ICAI and other organisations. On many occasions, he chaired my sessions. I have written many articles jointly with him and under his guidance. I also had the privilege to co-write articles on a regular basis on professional ethics under the title “ICAI & Its Members” in the BCAJ. Whatever I am today in this profession is because of his blessing and advice. In short, he was my Godfather! In fact, when Shah & Co, celebrated its 75 years, I was one of the recipients of a souvenir through his hands.

His humbleness, thoroughness, respect for everyone and his encouragement to youngsters was amazing. His commitments and selfless contribution to the profession and to society at large were unmatchable. My tribute to him.

By his departure, not only have I lost my Godfather, but the profession has lost one of the finest professionals — a doyen, a legend — who will always live in our hearts. His guidance and advice will always be remembered and encourage us to walk on his path. May his soul rest in eternal peace! Om Shanti!

CA Harish Motiwalla

 

With a heavy heart, I write this obituary for the respected Shri Pradyumnabhai, who has left for his heavenly abode. It is the loss of an unchallenged doyen of the profession; the loss of one of the most dedicated leaders the profession has had.

We were lucky to have known him and to have learnt from him for years — first as part of BCAS and then in his role for the Institute and the profession at large. All he did was always truly selfless.

One is bound to fall short of adjectives in describing him. He was a towering personality. His conduct was an illustrious reflection of an ethical professional. He showed us lessons of discipline, forthrightness and humility. He was always an affectionate father figure to all the juniors. No one would mind approaching him or confiding in him.

He was particular about minute details while not losing the big picture before him. It was also amazing to see his speed of disposal — whether he was dealing with tax or audit or Companies Act or Institute regulations.

Very few of us would know that he was instrumental in convincing the Government about the need to introduce tax audits to be conducted by Chartered Accountants. He did it with a vision which has unfolded over the years.

His regularity and punctuality were remarkable.He continued to participate actively in the Vile Parle Study Circle meetings with fair regularity, even at his advanced age. His enthusiasm for academic pursuit can be witnessed by the rollout of his monthly publication on behalf of his firm till almost last month.

His passing away is a huge loss. His values will continue to inspire us. Our true tribute to him will be to follow his ideals.

I end with a prayer to the Almighty to give courage to the family to bear this loss. May his soul rest in eternal peace. Om Shanti.

CA Pinakin D. Desai

 

Shri Pradyumna N. Shah [popularly known as Pradyumanbhai] took his last breath on15th November, 2023 and left for heavenly abode leaving a memorable legacy behind him in the profession. We all have lost the true guardian of interest in our profession. His unparalleled contribution to the development of our profession was reflected in his actions and self-evident and does not require any recognition.

My initial interaction with him was somewhere in the late 70s during Vile Parle Study Circle (VPSC) meetings at N. M. College. I still recall the way he used to promote youngsters and selflessly help them understand the intricacies of the topic being discussed. He was one of the main pillars of the activities of VPSC. Many of our age like Pinakinbhai, Rajen, myself, etc., started our academic journey at VPSC (with BCAS as well) where he was a mentor unmatched. I still remember he started calling Pinakinbhai ‘Chotta Palkhivala’ since then and continued to refer to him as such while chairing VPSC’s annual budget meetings addressed by Pinakinbhai.

I came a little closer to him when I became convenor of the Taxation Committee of the Bombay Chartered Accountants’ Society (BCAS) when he was its Chairman. I was amazed to see him so meticulous, extremely devoted and punctual in his work, maintaining high standards of ethics and his dealing with others was with great humility. It was a learning experience for me. I had a similar experience in the BCAS Residential Refresher Courses (RRCs), where he would silently attend all group meetings and encourage the young group leaders in discussion.

He had at his heart an interest in the profession, more so, the interest of the young members. This was evident from his actions during his presidency at ICAI, which are difficult to describe. I still recall his keen interest and efforts made for getting introduced Tax Audit provisions in the Income-tax Act, 1961, which then became one of the major sources of revenue for young professionals, especially in tier II & III cities. This also created a perception that it has given a little edge to Chartered Accountants in the profession.

He was a true ‘Karma Yogi’ in the profession in every sense, be it selflessly imparting and spreading knowledge, taking up issues concerning the profession, mentoring young professionals and so on. I still recall when once I had to sit with him till late at night to prepare for an urgent representation for BCAS against the sudden omission of Rule 6DD(j) w.e.f. 25th June, 1995 (which provided an exception from rigours of section 40A(3) for genuine transactions under compelling circumstances) as he was genuinely agitated against the unjust omission of the Rule and that too, without prior discussion with the stakeholders. I also remember another incident of his reaction in the mid-90s when the ICAI decided to make Accounting Standards (AS) mandatory for Non-Corporate Entities. He firmly opposed that decision despite the fact that he was a past president of ICAI as he strongly felt that the time had not come for such a measure. He also called me to join him in writing a book on this subject, which was published by BCAS under the title ‘Accounting Standards as applicable to Non-Corporate Entities’. He also made his view clear at a largely attended seminar organised specifically for this purpose at ISKCON, Juhu, Mumbai. What is more worth noting is the fact that in that book he specifically gave a draft of qualifications for Auditors if such entities decide not to follow AS. Such was his conviction.

He was emotionally attached to BCAS, and his contribution to the BCAS is unparalleled in every sense of the term — be it the conception and growth of RRC, be it identifying young academicians and leaders, be it informally monitoring activities of BCAS, be it contribution to, and development of, BCAS Journal and so on. Members always used to look for his annual write-ups on the Finance Act in BCAJ. In fact, it is impossible to describe in this short message his unbelievable and unmatched contribution to the BCAS. I still recall when he suggested my name to present the paper of the late Shri Narangsaab at the RRC as Narangsaab was seriously ill. I was just shocked as I had, at that stage, never made such an attempt at BCAS RRC, but he insisted and encouraged me to play that role. This also reminds me of his surprise visit to my Room at the RRC to encourage me when I wrote my first paper for BCAS RRC, in 1991 on “Capital Gains”, and this was another such experience. I also recall when the late Shri Narayana Verma asked me (towards the end of my term as president) whom I would suggest as the candidate for presidentship for the next year and I suggested the name of Shri Ashok Dhere he told me that he agreed but will let me know within two to three days and subsequently confirmed with me by saying that Shri Pradyumanbhai has also agreed and he has also confirmed with Shri ArvindbhaiDalal. Likewise, Pradyumnabhai also informed me the same, and this reflects his belief in collective wisdom. This is the collective manner in which these seniors used to function at BCAS in such matters. Now, we have lost the most senior and last one of them.

In fact, knowing him a little closely during my long association with him I can still go on to describe his unassuming humility and nature and unbelievable contribution by recalling a number of personal experiences but due to space constraints, I am stopping at this with a personal note that I was fortunate to have the privilege of associating myself with him in several activities of the Society as well as at times on a personal level and have learned a lot from him in my professional career, more so on the ethical front. He was also unassuming in maintaining personal relationships and since he knew that my wife also attends my office, whenever we met, often he would affectionately ask me, “Ilaben kem che?”

We all at BCAS will miss Late Shri Pradyumanbhai as now he will no longer be with us to share his wisdom but his legacy of humility, values, dedication, selfless contribution and so on for the profession in general, and BCAS in particular, will never be out of our mind and will remain forever.

I sincerely pray to the Almighty that his pious soul may rest in eternal peace.

CA Kishor Karia

 

On 15th November, 2023, we lost Dada-Muni / BhishmaPitamaha of Accounting and Tax Profession.

He was like a fatherly figure for all of us in the CA fraternity and, in particular, all BCAS members.

I came in contact with Pradyumnabhai in BCAS and the Vile Parle Study Circle and in various academic forums. He not only guided me but also encouraged me to do better and better.

The credit for my involvement in the BCAS, Vile Parle Study Circle, as well as institute activities, entirely goes to seniors like Pradyumanabhai. In my interactions with him for over 45 years, he was like a guiding light, and I learnt a lot about how to be dedicated, perfectionist and passionate about our professional commitments, keeping in mind high ethical values. Above all, what always inspired us was his simplicity, humility and accessibility to guide the youngsters.

Very few persons of his stretcher and calibre are to be found in today’s world.

We pray to the Almighty to keep his soul in peace and harmony and inspire us to follow whatever he has taught us.

CA Rajan Vora

 

All of us are at a loss for words to express our deep grief on the passing away of Pradyumanbhai, and I am no exception in this. A sign of a great man is one who leaves others at a loss after he is gone and, at the same time, illuminates the future for those left behind him with light; Pradyumanbhai was one such great man. I was fortunate to be associated with him for a long period, and over a period, he became one of my role models in my practice and personal life.

My association with him is full of wonderful memories of his silent, unacknowledged, unnamed and undefined mentorship. He was the first to guide me professionally in vetting and settling my article on the Special Bearer Bonds Scheme promulgated in 1981, and his valuable suggestions led to important changes in the enactment of the Special Bearer Bonds Act, 1981. In my professional journey, he emphasised the need to share knowledge and experience and importantly taught me not to miss an opportunity to share the same and affirmatively advised me to accept an invitation to share gratefully and not for personal glory.

He set an example of what he preached by being a prolific writer and a visiting speaker all over the country, over a period of more than 60 years. His commitment was so profound that even during the years of his serious illness, he did not miss writing his annual feature on the Finance Act for BCAJ. He taught us to be a student all throughout as a step towards improving and polishing our professional skills, and for this, we shall always be grateful to him. His active participation even in recent years in the proceedings of seminars and conferences singularly marks his eagerness to always learn and incidentally to share also.

His immense administrative and management insights were no less helpful in managing the affairs of the Society. He was instrumental in introducing the post of Vice-President in the Society, which has held us in good steam over the decades. He once suggested that the younger past presidents be bestowed with higher responsibilities for the betterment of the Society.

Some of us were privileged to be the founding trustees of the BCAS Foundation, which was settled by him with great fondness. His love for charities and the welfare of the professionals continued through his regular attendance and guidance in the activities of the Foundation. He had a unique way of impressing his suggestions without making you realise the force behind the same. He taught us to set small targets to begin with and build up on the same in our journey towards the summit. His gentle suggestions will always guide the Foundation in discharging its noble functions.

Pradyumanbhai’s loss is so acute, and memories are so many that it is futile to express them in words. Yet, the single most thing that has impressed me is his unflinching commitment to ethics and values and his service to the profession; he was the doyen of the profession, most prominent and respected. I treasure a book on ‘Values’ gifted by him, which has guided me in times of darkness.

Henry Wadsworth Longfellow once said that when a great man dies, for the years, the light he leaves behind him lies on the paths of men.

Thank you, sir, for being a part of our lives.

CA Pradip Kapasi

 

We are deeply saddened to learn of the passing of Shri P. N. Shah, a distinguished past President of ICAI and a revered member of our professional community. His contributions to the field of accounting and his service to ICAI have left an indelible mark on our profession.

Shri Shah was not only a leader but also a mentor and a visionary who inspired many with his wisdom, dedication and integrity. His absence will be profoundly felt by all who had the privilege of knowing him and learning from his vast experience.

We extend our heartfelt condolences to his family, friends and colleagues during this difficult time. May his soul rest in peace.

CA T. P. Ostwal

 

END OF AN ERA

On 15th November, 2023, we lost our beloved Shri P. N. Shah. He was a professional class apart, a compassionate human; a Guru, friend, philosopher, mentor and guide to many; an Institution by himself. He has touched many lives and inspired everyone with his simplicity, humility and honesty. With his departure, a void is created in the CA profession. He has been a great source of inspiration for me. I had the privilege of working with him as a trustee of the BCAS Foundation. I learnt how to care for details and work with focus and precision.

I distinctly remember the Golden Jubilee celebrations of the Chartered Accountants Association Ahmedabad (CAAA) in 2000, wherein Shri Pradyumnabhai chaired my “FERA to FEMA” session. I was pleasantly surprised by his scholarly analysis of the subject and introduction of my paper, though FERA / FEMA was not his day-to-day practice area. I learnt how to study a subject and master it. Later on, I had many occasions to connect with him professionally and learnt a lot from him on every occasion.

Shri Pradyumnabhai has brought laurels to the CA profession as a president of the ICAI and president of the BCAS with his academic brilliance. The readers of the BCAJ used to eagerly await his masterly analysis of the Finance Act every year, which he continued till 2022. Even at the age of 93, he regularly wrote in the BCAJ and shared his knowledge with readers. This shows his commitment to the profession and zest for learning and sharing. No words are sufficient to describe this giant personality. A person like Pradyumnabhai never dies. He will ever remain alive in our hearts and memory and continue to guide generations to come. My prayers for the Sadgati of this pious Soul and heartfelt condolences to the grieving family.

नैनं छिन्दन्ति शस्त्राणि नैनं दहति पावकः। न चैनं क्लेदयन्त्यापो न शोषयति मारुतः।।2.23।।

No weapon can cut the soul into pieces, nor can it be burned by fire, nor moistened by water, nor withered by the wind.

Om Shanti! Shanti! Shanti!

Dr CA Mayur Nayak – Editor

विनाशकाले विपरीतबुद्धि: ।

This line is often used as a proverb, especially when someone does not listen to advice and invites trouble for himself. Literally, it means that when a person is destined to suffer, he acts in a strange manner, does not use his intellect or wisdom, and does not listen to the advice of well-wishers or of knowledgeable persons. The full text is like this:

न भूतपूर्वो न च के न दृष्टो । हेम्न: कु रंगो न कदापि वार्ता ।

तथापि तृष्णा रघुनंदनस्य । विनाशकाले विपरीतबुद्धि: ॥

There is another slightly different version of this shloka —

असंभवं हेममृगस्य जन्म । तथापि रामो लुलुभे मृगाय ।

प्राय: समापन्न विपत्तिकाले । धियोsपि पुंसां मलिनीभवन्ति ॥

Readers may be aware of the story from Ramayana. When Shree Ram,Seeta and Laxman were in exile, Marich (the demon and Ravana’s maternal uncle) came in the guise of a golden deer near Ram’s hermitage. He (Marich) allured Seeta, who insisted that Ram bring the deer for her. This was Ravana’s plan to keep Ram and Laxman away from the hermitage so that Ravana could kidnap Seeta. In Valmiki Ramayana, it is mentioned that Laxman cautions Ram that a golden deer is an impossibility, and this must be demon Marich, who was capable of adopting any form. Ram did not challenge him but said either way there is no harm. If he were a demon, it was Ram’s mission to destroy wicked demons, and if he really were a golden deer, Seeta’s desire would be fulfilled. So he chased the deer who took him away in the jungle. Ram killed him, but while dying, the deer screamed for help in Ram’s voice. Very worried, Seeta insisted on Laxman to rush for Ram’s rescue. When she remained unescorted, Ravana kidnapped her.

In Mahabharata, despite elders’ advice, Yudhishthira, known for his knowledge and wisdom, sat for playing gambling with Duryodhana and lost everything in the process, including his wifeDraupadi!

The literal meaning of the first version — A golden deer is unprecedented. No one has seen it. It is unheard of. Still, Ram (Raghunandan) was tempted by him. When calamities come, man behaves in a strange manner, rather thoughtlessly.

It is believed that when God wants to destroy anyone; or punish a person; or test him, he does not come himself to do so. He corrupts the man’s intellect so that he commits mistakes.

We see and experience this quite often in our day-to-day lives. Without heeding elders’ advice, young people commit blunders. We trust a person who betrays us or lets us down. People get seduced by so-called ‘spiritual leaders’ and lose many things! The common man trusts and follows wrong leaders who turn out to be very selfish or criminal persons. A patient consults the wrong doctor despite a bad experience earlier. A taxpayer avoids consulting a good CA to save the fees and trusts  some less knowledgeable person or acts according to ‘hear-say’ advice. A businessman, a sportsman, a social leader adopts incorrect strategies. Governments make irrational laws or frames illogical policies. A professional adopts unscrupulous means to get quick gains. People in power resort to corruption without realising where to stop!

The principle applies to bad people as well. For example, Ravana did not heed to the advice of his brother Vibhishana and wife Mandodari and did not release Seeta. It was his ego; but in the process, he lost his life, and almost all the demons got killed. Pakistani leaders always adopted a single-point agenda of enmity with India and have virtually ruined their own country!

Sometimes, people travel despite unfavourable weather forecasts. Sometimes, knowledgeable astrologers give some advice; elders also tell us many wisdom points. It may be in our interest not to ignore them altogether. One should leave aside one’s ego and adamance so that balanced decisions are taken. Inspite of this, if there is a failure, it is bad luck; but there is no blame for hasty or reckless behaviour!

NRI – Interplay of Tax and FEMA Issues – Residence of Individuals under The Income-Tax Act

Editorial Note: This article starts a series of articles on Income-tax and FEMA issues related to NRIs with a focus on the interplay thereof. Apart from a residential status definition under both Income-tax and FEMA, the series of articles will cover issues under both laws related to change of residence; investments, gifts and loans by NRIs; as well as transfers by them from India.

1. PRELIMINARY

Countries exercise their sovereign right to tax based on whether the income arises in their country or whether a person has a close connection with that country. The taxation laws define that close connection – an extended period during which the person stays in a country, or has his domicile there, or any similar criteria. Given a sufficient territorial connection between the person sought to be charged and the country seeking to tax him, income tax may properly extend to that person in respect of his foreign income.1The Income-tax Act, 1961 (the “Ac”) imposes such comprehensive or full tax, on persons who are residents.


1.Wallace Bros. & Co Ltd vs. CIT (1948) 16 ITR 240 (PC).

Section 5 of the Income-tax Act, 1961 (the “Act”) provides for the scope of total income for persons. The scope differs according to the residential status of the person. A non-resident’s total income consists of income received or deemed to be received in India in a previous year or income accruing, or arising, or deemed to accrue or arise in India in a previous year.

In contrast, the scope of the total income of a resident in India includes, apart from the income covered within the scope for non-residents, income accruing or arising outside India during such year. In effect, a resident is taxable on his global income. At the same time, the total income of a resident but not ordinarily resident, as defined in section 6(6) of the Act, excludes income accruing or arising outside India unless it is derived from a business controlled in or a profession set up in India.

2. RESIDENTIAL STATUS

A person is said to be resident in India per the rules in section 6 of the Act. The residential status for (a) individual, (b) company, (c) Hindu Undivided Family, firm or association of persons and (d) other persons is to be determined by different rules. The nationality aspect does not enter the determination of residential status under the Indian income-tax law.

A non-resident is a person who is not a resident [section 2(30)]. When a person may be said to be “not ordinarily resident” is provided in section 6(6). The residential status is to be determined for a previous year and applies to all income for that year that comes within the scope of total income applicable to the assessee. In other words, a person cannot be a resident for one part of the year and non-resident for the other part, as India does not recognise split residency. The effect of this provision is that a person’s total income earned in a Financial Year is taxed basis his residential status in India, even if he may be resident of two countries due to his part stay in India. However, such a person can avail relief under a tax treaty by applying tie-breaking tests. It is not possible to have different residential status under the Act for different sources of income. Whether an assessee is a resident or non-resident is a question of fact.2


2.Rai Bahadur Seth Teomal vs. CIT (1963) 48 ITR 170 (Cal).

2.1 Tests for residence

There are two tests to determine if an individual is resident in India in any previous year. These tests are alternative and not cumulative.

According to the first test, an individual is said to be resident in India in any previous year if he is in India for a period or periods of 182 days or more [sec. 6(1)(a)]. The alternative test is an individual having within the four years preceding the previous year, been in India for a period or periods amounting in all to three hundred and sixty-five days or more, and is in India for a period or periods amounting in all to sixty days or more in that year [sec. 6(1)(c)].

Explanation 1 to section 6(1)(c) provides relaxation from the second test in some circumstances [discussed in paragraph 2.3 below].

2.2 Stay in India

The phrase “being in India” implies the individual’s physical presence in the country3 and nothing more. The intention and the purpose of his stay are irrelevant; the stay need not be in connection to earning income, which is sought to be taxed. Nor is it essential that he should stay at the same place. Stay may not be continuous: the individual’s presence in India must be aggregated to ascertain whether the threshold is crossed.


3.CIT vs. Avtar Singh Wadhwan (2001) 247 ITR 260 (Bom).

How the number of days shall be counted has been contested. In an Advance Ruling, it was held that even a part of the day would be construed as a full day, and even though for some hours on the day of arrival and departure, the applicant can be said to have been out of India, both the days will be reckoned for ascertaining 182 days. 4Contrarily, the Mumbai Tribunal, in this case,5 noted that the period or periods in section 6(1) requires counting of days from the date of arrival of the assessee in India to the date he leaves India. The Tribunal relied upon section 9 of the General Clauses Act, 1897, which provides that the first day in a series of days is to be excluded if the word ‘from’ is used and held that the words ‘from’ and ‘to’ are to be inevitably used for ascertaining the period though these words are not mentioned in the statute, and accordingly, the date of arrival is not to be counted.


4.Advance Ruling in P. No. 7 of 1995, In re (1997) 223 ITR 462 (AAR).
5.Manoj Kumar Reddy vs. Income-tax Officer (2009) 34 SOT 180 (Bang).

2.2.1 Involuntary stay

Section 6 does not limit an individual’s freedom to arrange his physical presence in India such that he is not a resident in the previous year and his foreign income falls outside the Indian tax net. On the other hand, section 6 does not distinguish between a stay in India that is by choice and that is involuntary. However, the Delhi High Court held that, given that the Act provides a choice to be in India and be treated as a resident for taxation purposes, his presence in India against his will or without his consent should not ordinarily be counted. In that case, the assessee could not leave India as his passport was impounded by a government agency. The Court held that the fact that the impounding was found to be illegal and, therefore, was in the nature of illegal restraint, the days the assessee spent in India involuntarily should not be counted. At the same time, the Court cautioned that the ruling cannot be treated as a thumb rule to exclude every case of involuntary stay for section 6(1), and the exclusion has to be fact-dependent.

A similar relaxation has been provided to individuals who had come to India on a visit before 22nd March, 2020, and their stay is extended involuntarily due to the circumstances arising out of the Covid-19 pandemic to determine their residential status under section 6 of the Act during the previous year 2019-20.6


6.Circular No. 11 of 2020 dated 8th May, 2020.

Representations for a similar general relaxation for the previous year 2020-21, in relation to an extended stay in India by individuals due to travel restrictions during the Covid pandemic resulting in their residence under section 6(1) was denied by the CBDT, which stipulated examining on a case-by-case basis for any relief.7  According to that Circular, an individual with a forced stay in India would still have the benefit of applying treaty residence rules, which are more likely to determine residence in the other State. The Circular points out that even if an individual becomes a resident in the previous year 2020-21 due to his forced stay in the country, he will most likely become an ordinary resident in India and accordingly, his foreign source income shall not be taxable in India unless it is derived from a business controlled in India or a profession set up in India, so there would be no double taxation. The Circular states that if a person becomes a resident due to his forced stay during the previous year 2020-21, he would be entitled to credit for foreign taxes under rule 128 of the IT Rules, 1962.


7. Circular No. 2 of 2021 dated 3rd March, 2021.

2.2.2 Seafarers

Explanation 2 to section 6(1) and rule 126 were brought into the statute with effect from A.Y. 2015-16 to mitigate difficulty in determining the period of stay in India of an individual, being a citizen of India, who is a crew member on board a ship that spends some time in Indian territorial waters.

The provisions apply to an Indian citizen who is a member of the crew of a foreign-bound ship leaving India. The period of stay in India of such a person will exclude the period from the date of joining the ship to the date of signing off as per the Continuous Discharge Certificate. The “Continuous Discharge Certificate” shall have the meaning as per the Merchant Shipping (Continuous Discharge Certificate-cum-Seafarer’s Identity Document) Rules, 2001, made under the Merchant Shipping Act, 1958. The days in Indian territorial waters by such a ship on an eligible voyage would fall within the period of joining and end dates in the Continuous Discharge Certificate and, thus, will not be treated as the period of stay in India of the concerned individual crew member.

An “eligible voyage” is defined in the rule to mean a voyage undertaken by a ship engaged in the carriage of passengers or freight in international traffic where the voyage originated from any port in India, has as its destination any port outside India, and for the voyage originating from any port outside India, has as its destination any port in India. The rule has no application where both the port of origin and destination of a voyage are outside India or where the Indian citizen leaves India to join the ship at a port outside India and the ship is on a voyage with a destination outside India. In such cases, his presence in India will usually be determined based on entries in his passport.

Notably, Explanation 2 and Rule 126 are for the purposes of the entire clause (1) (and not limited to clause (a) in Explanation 1). The rule prescribes the manner of computing the period of days in India of a crew member of a foreign-bound ship leaving India and is not restricted to only Indian-registered ships. Accordingly, the rule applies even while computing the period of stay of 182 days and 60 days contained in clauses (1)(a) and (1)(c).

2.3 Relaxations

There are some relaxations to the alternative test for residence in section 6(1)(c), which provides for substituting the period of stay in India for 60 days in section 6(1)(c) for 182 days. Consequently, in cases where the relaxation is applicable, the threshold of stay in India for residence will be 182 days under both tests, making the alternative test redundant. These relaxations are discussed below.

2.3.1 Citizens leaving India [Explanation 1(a)]

Explanation 1(a) provides for substituting the period of stay in India for 60 days in section 6(1)(c) by 182 days if the assessee, being a citizen of India, leaves India in any previous year as a member of the crew of an Indian ship or for the purposes of employment outside India. The relaxation in Explanation 1(a) applies to the previous year in which the assessee, being a citizen of India, leaves India.8


8.Manoj Kumar Reddy vs. Income-tax Officer (2009) 34 SOT 180 (Bang), Addl DIT vs. Sudhir Choudrie [2017] 88 taxmann.com 570 (Delhi - Trib.).

Under the Citizenship Act 1955, citizenship is possible by birth (section 3), by descent (section 4), by registration (section 5), by naturalisation (section 6) and by incorporation of territory (section 8). However, an Overseas Citizen of India under section 7A of that Act is not a citizen and is not covered under this clause.

(a) Citizens leaving India as a member of the crew of Indian ship

The relaxation under clause (a) of Explanation 1 is available only where the assessee leaves India as a crew member of an Indian ship as defined in section 3(18) of the Merchant Shipping Act, 1958. Relaxation is not available if the ship is other than an Indian ship. An individual who is not a citizen, too, is not eligible.

In this case,the assessee claimed the benefit of relaxation under Explanation 1(a) as he had left India in that previous year as a crew member of an Indian ship and had spent 201 days outside India. However, the benefit was denied because the assessee had stayed in foreign waters while employed on the ship(s) for only 158 days, i.e., less than 182 days. However, the ruling requires reconsideration since there is no condition in that provision that the assessee should spend his entire days outside India on a ship to be eligible for relaxation. Explanation 1(a) provides only that the individual leaves India in that previous year as a member of a crew on an Indian ship for the sixty days in clause (1)(c) to be substituted by 182 days.


9.Madhukar Vinayak Dhavale vs. Income-tax Officer (2011) 15 taxmann.com 36 (Pune).

Explanation 2 to section 6(1) and rule 126 that provide for the manner of determining the period of stay in India of a crew member of a foreign bound ship leaving India would be relevant for Explanation 1(a) as well in ascertaining whether the thresholds of 60 days and 182 days in section 6(1) is crossed. Thus, an Indian ship leaving for a foreign destination would be an ‘eligible voyage’ under rule 126, and his period of stay in India will exclude the period from the date of joining the ship to the date of signing off as per the Continuous Discharge Certificate. Where the Indian ship does not qualify to be on an eligible voyage, the individual’s period or periods in India will impliedly include the ship’s presence in Indian territorial waters.

(b) For the purposes of employment

The Kerala High Court held in this case10 that no technical meaning is intended for the word “employment” used in the Explanation, and going abroad for the purposes of employment only meant that the visit and stay abroad should not be for other purposes such as a tourist, or medical treatment or studies or the like. Therefore, going abroad for employment means going abroad to take up employment or any avocation, including taking up one’s own  business or profession. The expression “for the purposes of employment” requires the intention of the individual to be seen, which can be demonstrated by the type of visa used to travel abroad.


10.CIT vs. O Abdul Razak (2011) 337 ITR 350 (Kerala).

In this case, where the assessee travelled abroad on a transit visa, business visa and tourist visa, it was held that the entire period of travel abroad could not be considered as ‘going abroad for the purposes of employment’.11  It was also held that multiple departures from India by the individual in a previous year could also qualify under this clause. The provision does not require him to leave India and be stationed outside the country as the section nowhere specifies that the assessee should leave India permanently to reside outside the country.


11.K Sambasiva Rao vs. ITO (2014) 42 taxmann.com 115 (Hyderabad Trib.).

The requirement under clause (a) of Explanation 1 is not leaving India for employment, but it is leaving India for the purposes of employment outside India. For the Explanation, an individual need not be an unemployed person who leaves India for employment outside India. The relaxation under this clause is also available to an individual already employed and is leaving India on deputation.12


12.British Gas India P Ltd, In re (2006) 285 ITR 218 (AAR).

2.3.2 Citizen or person of Indian origin on a visit to India [Explanation 1(b)]

Explanation 1(b) to section 6(1)(c) provides for a concession for Indian citizens or persons of Indian origin who, being outside India, come on a visit to India in any previous year. In such cases, the prescribed period of 60 days in India to be considered a resident under clause (1)(c) is relaxed to 182 days. The objective behind this relaxation is to enable non-resident Indians who have made investments in India and who find it necessary to visit India frequently and stay here for the proper supervision and control of their investments to retain their status as non-resident.13


13.CBDT Circular No. 684 dated 10th June, 1994.

The expression “being outside India’ has been examined judicially. Where the assessee has been a non-resident for many years, and during the years, he had far greater business engagements abroad than in India, it cannot be assumed that he did not come from outside of India.14 It is not justified to look at the assessee’s economic and legal connection with India (i.e. his centre of vital interest being in India) to assume that he did not come from outside of India.15 When the assessee had migrated to a foreign country and pursued his higher education abroad, engaged in various business activities, set up his business interests and continued to live there with his family, his travels to India would be in the nature of visits, unless contrary brought on record.16


14.Suresh Nanda vs. Asstt. CIT [2012] 23 taxmann.com 386/53 SOT 322 (Delhi).
15.Addl Director of Income-tax vs. Sudhir Choudhrie (2017) 88 taxmann.com 570 (Delhi-Trib).
16.Pr. Commissioner of Income-tax vs. Binod Kumar Singh (2019) 107 taxmann.com 27 (Bombay).

The expression ‘visit’ is not limited to a singular visit as contended by the Revenue but includes multiple visits.17 The return to India by an individual on termination of his overseas employment is not a visit, and the relaxation in Explanation 1(b) is not available.18


17.Asstt. Commissioner of Income-tax vs. Sudhir Sareen (2015) 57 taxmann.com 121 (Delhi-Trib).
18.V. K. Ratti vs. Commissioner of Income-tax (2008) 299 ITR 295 (P&H); Manoj Kumar Reddy vs. Income-tax Officer (2009) 34 SOT 180 (Bang); Smita Anand, In Re. (2014) 362 ITR 38 (AAR).

In that case,19 the assessee working abroad visited for 18 days during the year. Later that year, on termination of his employment, he returned to India and spent 59 days in the country. The Tribunal held that a visit to India does not mean that if he comes for one visit, then Explanation (b) to section 6(1) will be applicable irrespective of the fact that he came permanently to India during that previous year. Looking at the legislative intention, the status of the assessee cannot be taken as resident on the ground that he came on a visit to India and, therefore, the period of 60 days, as mentioned in 6(1)(c) should be extended to 182 days by ignoring his subsequent visit to India after completing the deputation outside India. The alternative contention of the assessee that, for the purpose of computing 60 days as mentioned in section 6(1)(c), the period of visit to India would be excluded was accepted.


19.Manoj Kumar Reddy vs. Income-tax Officer (2009) 34 SOT 180 (Bang); affirmed in [2011] 12 taxmann.com 326 (Karnataka)

2.3.3 Limiting the relaxation [Explanation 1(b)]

An amendment was brought in by the Finance Act 2020 (effective from A.Y. 2021-22) to counter instances where individuals who actually carry out substantial economic activities from India manage their period of stay in India to remain a non-resident in perpetuity and not be required to declare their global income in India. The amendment restricts the relaxation in clause (b) in Explanation 1.

When a citizen or a person of Indian origin outside India who comes on a visit to India has a total income other than the income from foreign sources exceeding Rs.15 lakhs during the previous year, the time period in India in section 6(1)(c) of 60 days is substituted with 120 days as against 182 days available before this amendment. The expression income from foreign sources is defined in Explanation to Section 6.

An individual who becomes a resident under this provision shall be not ordinarily resident under clause (6). The provision expands the scope of residence under the Act. It could result in cases of dual residence needing the application of the tie-breaker rule under the relevant tax treaty.

2.4 Deemed Resident [section 6(1A)]

A new category of deemed resident for individuals was introduced with effect from 1st April, 2021 to catch within the Indian tax net, Indian citizens who are “stateless persons”, that is, those who arrange their affairs in such a fashion that they are not liable to tax in any country during a previous year. This arrangement is typically employed by high net-worth individuals to avoid paying taxes to any country / jurisdiction on income they earn. A citizen is as defined by the Citizenship Act 1955.

Under this clause, an individual who is a citizen of India, having a total income other than income from foreign sources exceeding Rs.15 lakhs during the previous year shall be deemed to be resident in India in that previous year if he is not liable to tax in any other country or territory by reason of his domicile or residence or any other criteria of similar nature.20 This clause, an additional rule of residence for individuals, shall not apply if the individual is resident under clause (1). Clause (1A) applies only where an Indian citizen is liable to tax by reason of the various connecting factors listed in the clause.


20.The expression “income from foreign sources” is defined in Explanation to section 6 and discussed under para 3.3.3 above.

2.4.1 Liable to tax

The meaning of the term “liable to tax” in the context of treaties has been the subject of several court rulings.21 Some rulings have found that a person is liable to tax even if there is no income-tax law in force for the time being if a potential liability to tax exists, irrespective of whether or not such a right is exercised.22 To nullify such interpretation, a definition in section 2(29A) has been inserted by the Finance Act 2021 with effect from 1st April, 2021. The provision defines ‘liable to tax’ in relation to a person and with reference to a country to mean that there is an income-tax liability on such a person under an existing income-tax law in force of that country. The definition includes a person liable to tax even if he is subsequently exempted from such liability. Primarily, there should be an existing tax law in the other country imposing a tax liability on a person to be ‘liable to tax’.


21.Union of India vs. Azadi BachaoAndolan (2003) 263 ITR 706 (SC);
22.ADIT vs. Greem Emirate Shipping & Travels (2006) 100 ITD 203 (Mum).

2.4.2 Connecting factors

For clause (1A) to apply, the individual should not be liable to tax in any other country by reason of the connecting factors listed. The clause is worded similarly to the treaty definition of residence: both refer to the person being ‘liable to tax’, which must be by reason of the specified connecting factors. Article 4(1) of the OECD and UN Models refers to domicile, residence, place of management or any other criterion of similar nature while in section 6(1A), connecting factors are residence, domicile or any other similar criteria.

There is a causal relationship between the listed factors and the extent of taxability that is required for the factors to become connecting factors. The OECD Commentary describes this condition of being liable to tax by reason of certain connecting factors as a comprehensive liability to tax – full tax liability – based on the taxpayers’ personal attachment to the State concerned (the “State of residence”). What is necessary to qualify as a resident of a Contracting State is that the taxation of income in that State is because of one of these factors and not merely because income arises therein. This interpretation can be validly extended to residence under clause (1A).

The challenge to establish that the income tax that a person is liable in a foreign jurisdiction is by reason of domicile, residence or similar connecting factors is demonstrated by the Chiron Behring ruling.23 In that case, the Tribunal held that a German KG (fiscally transparent partnership)24 was a resident of Germany and entitled to the India-Germany treaty since it was liable to trade tax in Germany (a tax covered under the India-Germany Treaty). Considering that the German trade tax is a non-personal tax levied on standing trade or business to the extent that it is run in Germany,25 an examination of whether the KG was liable to that tax by reason of domicile, residence or other connecting factors was required to determine treaty residence which was not undertaken.


23.ADIT vs. Chiron Behring GmbH & Co[2008] 24 SOT 278 (Mum), affirmed in DIT vs. Chiron Behring GmbH & Co. (2013) 29 taxmann.com 199 (Bom).
24.A fiscally transparent partnership is a pass-through with its partners being liable to pay tax on its income.
25.Gewerbesteuergesetz (Trade Tax Law, GewStG), Sec. 2(1).

In conclusion, it is not enough that the assessee is liable to income taxation in the concerned country or territory for clause (1A) not to apply: an examination of that tax law is necessary to ascertain whether he is liable by reason of the connecting factors listed in section 6(1A).

2.5 Income from foreign sources

The expression ‘income from foreign sources’ is found in the amendments to section 6 of the Act by the Finance Act 2020. The expression is relevant to apply the lower number of days in India in Explanation 1(b) to section 6(1)(c) in respect of citizens and persons of Indian origin being outside India coming on a visit to India and to the deemed residence provisions under section 6(1A). Explanation to section 6 defines income from foreign sources to mean income which accrues or arises outside India (except income derived from a business controlled in or a profession set up in India) and which is not deemed to accrue or arise in India.26


26.This expression is relevant for the amendment to clause (b) of Explanation 1 to section 6(1) as well as the deemed resident provisions inserted vide section 6(1A) [see para for discussion on this clause].

Since the words used in Explanation 1(b) as well as clause (1A) are “having total income, other than the income from foreign sources exceeding Rs.15 lakhs”, total income as defined in section 2(45) and its scope in section 5 is relevant. Notably, income accruing or arising outside India and received in India is not included in the definition of income from foreign sources. Consequently, such income within the scope of the total income of a non-resident is not to be excluded from the threshold of Rs.15 lakhs.

Total income is computed net of exemptions, set off typically. A question arises whether income exempted if the assessee is a non-resident is to be excluded while computing the threshold of Rs.15 lakhs. The provisions are ambiguously worded. A harmonious interpretation could be that since the objective for determining the threshold is to ascertain whether an individual who is otherwise a non-resident is to be treated as a resident, such exemptions should not be considered, and the items of income should be included. This interpretation avoids a circular reference which arises otherwise. A similar question arises regarding items of income excluded due to treaty provisions. Since the residence under the Act is the foundational basis for ascertaining residence under a treaty, items of income excluded due to treaty provisions are not to be excluded for the same reason.

3. RESIDENT AND NOT ORDINARILY RESIDENT

“Not ordinarily resident” is a subcategory  of residence available to individuals and HUFs. The scope of his total income is the same as that of resident assesses but excludes income accruing or arising outside India unless it is derived from a business controlled in or profession set up in India.

Under this provision, an individual should be a non-resident for nine years out of ten preceding years or during his seven ‘previous years’ preceding the previous year in question, and he was present in India in the aggregate for seven hundred and twenty-nine days or less [sec. 6(6)(a)]. An individual will be “not ordinarily resident” if he fulfils either of the two conditions. The Mumbai Tribunal, in this case,27 rejected the Revenue’s stand that the conditions in section 6(6)(a) are cumulative while interpreting section 6(6)(a) before its substitution by the Finance Act, 2003 based on the well-settled literal rule of interpretation as per which the language of the section should be construed as it exists. The Tribunal’s conclusion that when one of these two conditions, as laid down in section 6(6)(a) is fulfilled, the resident status is that of not ordinarily resident, should extend to the substituted provisions based on their text.


27.Satish Dattatray Dhawade vs. ITO (2009) 123 TTJ 797 (Mumbai).

A citizen of India or a PIO who becomes a resident for being in India for more than 120 days due to the provision inserted in clause (b) of Explanation 1 (vide Finance Act 2020) has the status of not ordinarily resident [sec. 6(6)(c)]. Likewise, a person who is deemed resident under section 6(1A) is not ordinarily resident [sec. 6(6)(d)]

4. RESIDENCE UNDER THE ACT – RELEVANCE FOR TREATIES28

Double tax avoidance agreements entered by India are bilateral agreements modelled on the OECD Model Convention and the United Nations Model Convention. To access these benefits, the person should be a resident of one or either of the Contracting States (i.e., parties to the double tax avoidance agreement) (Article 1 of the OECD / UN Model). Article 4 of the OECD Model states as follows: “For the purposes of this Convention, the term “resident of a Contracting State” means any person who, under the laws of that State, is liable to tax therein by reason of his domicile, residence, place of management or any other criterion of a similar nature, ………” Thus, residential status under the domestic tax law is relevant to accessing a double tax avoidance agreement and being eligible for the reliefs available.


28.The topic is covered only briefly here to give the reader a perspective of how residence under the Act can impact treaty application. A separate article dealing with treaty rules on residence is scheduled for publication.

5. RESIDENCE UNDER THE ACT VERSUS TAX TREATIES

In treaty cases where the person is a resident of both Contracting States concerning a treaty between them, the dual treaty residence is resolved through tie-breaker rules, and that person is deemed a resident of one of the States. A question arises whether a person deemed to be a resident of the other Contracting State under a treaty is also to be treated as a non-resident for the Act, and consequently, his income and taxes are to be computed as applicable to non-residents. This question and the discussion below are relevant for individuals and other persons.

The question gains significance since there are variations in computing income and its taxation for non-residents compared to residents. Such variations are found under several sections of the Act apart from the scope of total income under section 5. Some instances are the computing capital gains on transfer of shares in foreign currency and without indexation (section 48), tax rate on unlisted equity shares (sec.112(1)), computing basic exemption of Rs.1 lakh from short-term and long-term capital gains on listed shares (sections 111A and 112A), flat concessional tax rate on gross dividends, interest, royalty and fees for technical services without deductions, different slabs of maximum amount not chargeable to tax for senior citizens in the First Schedule to Finance Acts. Some of these provisions are more beneficial to residents, some to non-residents, and some depend on the facts of the case.

The argument for adopting treaty residence for residential status under the Act is that under section 90, more beneficial treaty provisions have to be adopted in preference to the provisions under the Act. However, such treatment is debatable for several reasons, as discussed below:

Firstly, the text of the provisions under the Act and in Article 4 dealing with residence in tax treaties militate against such substitution. Article 4 on residence states that such determination is “for the purposes of the Convention” and not generally. Section 6 of the Act is also “for the purposes of the Act” when a person is resident, non-resident or not ordinarily resident.

The literature on treaty residence is also overwhelmingly against substituting residential status under domestic law with treaty residence. Klaus Vogel states that since the person is “deemed” to be non-resident only in regard to the application of the treaty’s distributive rules, he continues to be generally subject to those taxations and procedures of the “losing State” which apply to taxpayers who are residents thereof.29According to Phillip Baker,30Article 4 determines the residence of a person for the purposes of the Convention and does not directly affect the domestic law status of that person. He refers to a situation of a person who is a resident of both States A and B, under their respective domestic laws. Even though under the tie-breaker rules of the A-B Treaty, he is a resident of State A for the purposes of the Convention, he does not cease to be a resident of State B under its domestic law.


29.Klaus Vogel on Double Tax Conventions, Third Edn, Article 4, m.no. 13-13a.
30.Phillip Baker on Double Tax Conventions, October, 2010 Sweet & Maxwell, Editor's Commentary on Article 4, para 4B.02.

Courts have held that section 4 (charging provisions) and 5 (scope provisions) of the Act are made subject to the provisions of the Act, which means that they are subject to the provisions of section 90 of the Act and, by necessary implication, they are subject to the terms of tax treaties notified under section 90.31 However, section 6, containing the provisions for determining residence under the Act, is for the purposes of the Act and is not subject to section 90 and, by implication, treaty provisions.


31.CIT vs. Visakhapatnam Port Trust (1983) 16 Taxman 72 (Andhra Pradesh) approved in Union of India vs. Azadi Bachao Andolan (2003) 132 Taxman 373 (SC).

The mandate in section 90(2) to adopt the provisions of the Act to the extent they are more beneficial to the assessee than the treaty provisions may, at first glance, enable the substitution of treaty residence as the residential status under the Act but deserves to be rejected. The sub-section envisages a comparison of the charge of income, its computation and the tax rate under the Act to be compared with the same criteria under the relevant treaty qua a source of income.32 The charge, computation and tax rate qua an income source under the Act, and the distributive rules in the relevant treaty follow from the residential status of the person under the Act and the treaty, respectively. Though section 90(2) refers to its application in relation to an assessee to whom a treaty applies, the application is not at an aggregate level of tax outcome qua the assessee.

The determination of treaty residence requires the person to be liable to tax in a Contracting State by reason of connecting factors (which includes residence under its tax law). Residence under the Act is a prerequisite for determining treaty residence. The objective of determining treaty residence is to enable the operation of distributive articles, which allocate taxing rights to one or the other Contracting State based on such residence, as well as to ascertain the State that will grant relief for eliminating double taxation.

Further, tie-breaker rules to determine treaty residence are to be applied to the facts during the period when the taxpayer’s residence affects tax liability, which may be less than an entire taxable period.33 The substitution with treaty residence of a person for computing his income and tax cannot be for a part of the previous year where there is split residency for treaty purposes.

Lastly, income-tax return forms and the guidelines issued by the CBDT also do not support substituting the residence under the Act with treaty residence. The forms and the guidelines require only residential status under the Act to be declared by the assessee. None of the return forms require assessees to fill in his treaty residence.

To conclude, a person’s residential status under the Act does not change due to the determination of treaty residence unless a provision in the Act deems such treatment like in some countries.34


32.IBM World Trade Corpn vs. DDIT (2012) 20 taxmann.com 728 (Bang.)
33.OECD Model (2017 Update) Commentary on Article 4, para 10.
34.For example, Canada and the United Kingdom have provided in their domestic law that where a person is resident of another state for the purposes of a tax treaty, the person will be regarded as non-resident for the purposes of domestic law also.

6. CONCLUSION

Residence is one of the essential concepts in determining the scope of taxation of a person. The term affects the scope of taxation under the Act as well as the ability of a taxpayer to access a double tax avoidance agreement. Rules for residence for an individual depend on his physical presence in India. The tests prescribed in section 6(1) and the relaxations available for citizens and persons of Indian origin form the canvas for determining residence under the Act. A long list of judicial precedents must be kept in sight while determining the residential status under the Act.

Newer amendments to the residence rules by limiting the concession available to citizens and persons of Indian origin on visits to India must also be considered. A deemed residential status for Indian citizens who are not liable to comprehensive or full tax liability in any other country brings to the fore the importance of understanding foreign tax laws. It also throws up interpretative challenges for the practitioner.

The meaning of residence under tax treaties necessarily refers to the meaning under domestic law, but they serve different purposes and operate independently in their own fields. It is debatable whether a person who is a treaty non-resident can be treated as a non-resident for the purposes of the Act and the tax consequences following such treatment.

Implications on NRs turning RNORs*
Adverse to the assessee Beneficial to the assessee
1.   Limited increase in the scope of income – income from business controlled or profession set-up in India.

2.   Concessional tax rates under Chapter XIIA and certain other exemptions are available only to  NR and not to RNOR.

3.   Can lead to the presumption that control and management of a firm, HUF, company, etc., in India.

4.   Overall reduction in years of NOR relief to Returning NRIs.

5.   Clearly within the tax compliance framework, including TDS obligations, tax return filing, etc.

1.   Slab rates available for senior citizens, etc., would be available to NORs.

2.   TDS Deduction is not as per Section 195 lowering rates in most cases.

3.   Eligible to claim Foreign Tax Credit in India for doubly taxed incomes.

4.   Can avail concessional tax rates under the DTAA where India is a source country and individual tie-breaks in favour of foreign jurisdiction.

5.   Relaxation on reporting requirements (may not be required to file detailed ITR 2 as per extant provisions).

 

Neutral Points
1.   No Obligation to report Foreign Assets.

2.   Assessee continues to be treated as NR for determining the AE relationship for transfer pricing regulations and for the purposes of Section 93.

3.   It would not impact FEMA’s non-residential status automatically.

(*contributed by CA Kartik Badiani and CA Rutvik Sanghvi; NR – Non-resident, RNOR – Resident and Not Ordinarily Resident).

Service Tax

I. SUPREME COURT

Commissioner of CGST, CST, Delhi East vs. Haldiram Marketing Pvt. Ltd.

2023 (11) Centax 23 (S.C.)

Date of Order: 25th September, 2023

Service tax cannot be levied on the sale of packaged food over the counter as there was no service element and merely the sale of goods.

Service tax is not leviable on rent received from associate enterprises for the joint sale of goods; it merely amounts to sharing of rental expenses and not sub-letting of property.

FACTS

Respondent was engaged in the operation of food outlets of packaged foods on a take-away basis. An audit was conducted wherein it was observed that the assessee failed to pay service tax on the sale of take-away food items and on the share of rent received from the associate enterprise. Further, a SCN was issued proposing a service tax demand of Rs.23,09,45,317 with interest and penalty. Respondent submitted a reply to SCN for dropping the entire demand and explained that service tax was not required to be paid on the activities. However, the department issued an order demanding Rs.20,12,46,762 with interest and penalty and a demand of Rs.2,96,98,555 was dropped on account of cum duty benefit. Being aggrieved, an appeal was filed before CESTAT on the grounds that the supply of packaged food on a take-away basis was solely a sale transaction and hence service tax should not be levied. Respondent further stated that service tax could not be levied on the amount received from associate enterprises as it was towards space sharing. Thereafter, the entire service tax demand with interest and penalty was dropped by CESTAT. Being aggrieved by such dropping of demand by the Tribunal, the department filed an appeal before Hon’ble Supreme Court.

HELD

The order passed by CESTAT was affirmed by Hon’ble Supreme Court relying inter alia on the judgements of the Hon’ble Madras High Court in the case of Anjappar Chettinad A/C Restaurant, M/s RSM Foods (P) Ltd wherein it was held that there was no element of service in preparation of food, packaging and then selling the same over the counter as take-away item without any dining facility. Such activity in essence is the sale of goods and hence service tax is not leviable thereon. Further, rent received from associate enterprises for selling goods along with their own goods was only a sharing of rental expenses and did not amount to sub-letting. Hence, service tax was not leviable under renting of immovable property service. Consequently, the department’s appeal was dismissed.

Goods and Services Tax

I. HIGH COURT

62 Goparaj Gopalakrishnan Pillai vs. State Tax Officer-I

2023 (11) Centax 203 (Ker.)

Date of Order: 5th October, 2023

ITC cannot be denied to the recipient merely on the basis that the supplier has not remitted GST to the Government and supplies are not reflected in Form GSTR-2A without examining the documentary evidence.

FACTS

Petitioner, a registered dealer, was issued a SCN alleging that the petitioner had availed and utilized excess ITC of Rs. 33,05,038 in F.Y. 2017–18 based on the difference between GSTR-3B and GSTR-2A. Petitioner in its response stated that it had mistakenly entered an excess amount due to clerical error in GSTR-3B of December, 2017 but the said amount has not been utilized. The said excess ITC was adjusted in GSTR-3B of August, 2018. Respondent passed an order denying ITC of Rs.19,830 as excess claim because the supplier had neither remitted the GST collected to the department nor had uploaded details in GSTR-1 and hence said tax amount wasnot reflected in GSTR-2A. Being aggrieved by such denial, the petitioner filed a writ before the Hon’ble High Court.

HELD

High Court relying on its own judgment in the case of Diya Agencies vs. State Tax Officer WPC No. 29769 of 2023 dated 12th September, 2023, held that ITC not reflected in GSTR-2A cannot be the sole ground for rejecting ITC claims without giving opportunity to petitioner for providing evidence. The impugned order was set aside andthe matter was remanded back to the Respondent forpassing a reasoned order after considering the said documents.

63 Oaknorth (India) Pvt. Ltd. vs. Union of India

2023(76) GSTL 64 (P&H.)

Date of Order: 29th March, 2023

Appeal cannot be rejected merely on the ground that a certified copy of the impugned order was not submitted especially when the said order was available on the portal.

FACTS

An appeal was filed by the petitioner against an order dated 21st September, 2021. The same was rejected on the grounds that appeal was not accompanied by a certified copy of the impugned order as prescribed under section 107 of the HGST Act, 2017 and Rule 108 of the HGST Rules, 2017. Being aggrieved by such rejection of the appeal, the petitioner filed this writ before the Hon’ble High Court.

HELD

It was held that the appeal filed could not be dismissed solely on the ground that the petitioner had not submitted certified copies of the impugned order where such an order was already uploaded on the Government portal. The order was set aside and the matter was remanded back to the authority to pass a fresh order after considering its merits.

64 Nahar Industrial Enterprises Ltd vs. UOI

[2023] 156 taxmann.com 95 (Rajasthan)

Date of Order: 31st October, 2023

The statutory scheme of inverted rated duty structure is also applicable to cases where there are multiple outputs against multiple inputs and even if the overall rate of all inputs is marginally higher than the rate of output supplies, the accumulation of unutilized input tax credit on suchaccount will bring it within the net of inverted duty structure.

FACTS

The petitioner company is engaged in manufacturing of textiles which include spinning, weaving and processing. In the process of manufacturing, the petitioner uses various raw materials on which GST rates vary from 5 per cent to 28 per cent. The rate of GST on outputs ranges from 0.1 per cent to 12 per cent. The petitioner filed a refund claim under section 54(3) of the CGST Act for the period January, 2020 to March, 2020 on the ground that since the rates of GST on inputs were higher than the rates of GST on outputs, it is eligible for refund of accumulated tax on inverted rated duty structure basis. The department rejected the refund claim contending that the petitioner’s claim does not fall under the inverted rated duty structure as the rate of tax of inputs was found to be more or less 5 per cent, 12 per cent and 18 per cent whereas the tax rate on output supply was also 5 per cent, 12 per cent and 18 per cent. ITC availed on the inputs procured at the rate of 28 per cent GST was very negligible. It was also observed that the output sales was to the extent of 80 per cent of goods having 5 per cent duty only and the majority of inputs too had the rateof 5 per cent. It was held that the refund is mainlydue to high input purchases and they are in stockduring the claim period. The contention of the department therefore was that section 54(3) of the CGST Act,2017 is not attracted as there is no accumulation on account of input tax rates being higher than the output supply tax rates but due to other factors. The First Appellate Authority also decided the matter against the petitioner.

HELD

The Hon’ble Court analysed the input and output GST rates and observed that all the inputs are taken together and utilised through the process of manufacturing, the output supplies would carry a higher rate of GST as compared to the rate of GST on such inputs, either taken individually or collectively. The rate of tax on output ranges from 0.1 per cent to 5 per cent or 12 per cent whereas the rate of tax applicable to some inputs may be 5 per cent or 12 per cent, but on remaining inputs, the rate of GST is certainly higher than 5 per cent or 12 per cent. The Court observed that 100 per cent cotton goods are only 50 per cent of the total goods and the rest are cotton-dominated blends for which other inputs have rates of 18 per cent whereas the output rate is 5 per cent. Balance outputs are synthetic-dominated blends and 100 per cent polyester / viscose for which inputs bear rates of 12 per cent, 18 per cent and 28 per cent. This factual position was not denied by the department.

Hon’ble Court held that the language contained in proviso (ii) to section 54(3) of the CGST Act, 2017, uses the expression, “where the credit has accumulated on account of rate of tax on inputs being higher than the rate of tax on output supplies” signifying the plurality of both inputs and output supplies. The Court thus held that the scheme of refund in case of inverted duty structure will continue to apply irrespective of the number of inputs and number of output supplies. It further held that in a case where there is an accumulation of unutilized ITC as a direct result of the rate of tax on inputs exceeding the rate of tax on output supplies, the scheme of refund as embodied in section 54(3) of the CGST Act, 2017 gets attracted. In other words, even if the overall rate of all inputs is marginally higher than the rate of output supplies, the accumulation of unutilized input tax credit on such an account will bring it within the net of the inverted duty structure.

The Hon’ble Court also referred to the decision of the Hon’ble Supreme Court in the case of Union of India & Others vs. VKC Footsteps India Private Limited[2021] 130 taxmann.comin which the Hon’ble Apex Court had noted that it was only those cases of ITC accumulation which are on account of inverted duty structure i.e., GST on output supplies being less than the GST on inputs that the scheme of refund would be applicable. Accumulation of unutilized input tax credit for other reasons like stock accumulation, capital goods and partial reverse charge mechanism for certain services may not attract the refund mechanism. As regards the department’s contention that the accumulation of ITC was on account of the higher stock, the Court held that refund formulae as contained in Rule 89(5) of the CGST Rules, 2017 do not contain any adjustment in respect of the stock as it envisages that total ITC claimed on inputs during the claim period gets consumed in respect of the turnover of the claim period. Thus, the determining factor for applicability of section 54(3) of the CGST Act, 2017 read with Rule 89(5) of the CGST Rules, 2017 is the rate of tax and quantum of ITC content and not the value / quantum of individual inputs (going into an output) and the outputs. The stock-based approach, therefore, violates the statutory scheme of refund.

65 Association of Technical Textiles Manufacturers and Processors vs. UOI

[2023] 156 taxmann.com 421 (Delhi)

Date of Order: 16th November, 2023

Power to issue orders, instructions or directions to Central Tax Officers stands vested exclusively in the Central Board of Indirect Taxes and Customs and not in the Tax Research Unit.

FACTS

The petitioners challenged the TRU Circular dated 31st December, 2018 to the extent that it purports to clarify that polypropylene woven and non-woven bags including those laminated with Biaxially Oriented Polypropylene2 are liable to be classified as falling under Chapter 39 and more particularly Tariff Heading 3923 forming part of the First Schedule to the Customs Tariff Act, 1975. The dispute essentially related to a question of the classification of polypropylene woven and non-woven bags under the Harmonized System of Nomenclature. The petitioners contended that the power to issue orders, instructions or directions to Central Tax Officers stands vested exclusively in the Central Board of Indirect Taxes and Customs and not on the TRU.

HELD

In the absence of any provision brought to the Court’s attention in terms of which the TRU could be said to have been clothed with the authority or jurisdiction to render a clarification with respect to the classification of goods and articles, the Hon’ble Court held that power to issue instructions and directions to Central Tax Officers vests exclusively with the Board (i.e., CBIC). TRU had no authority to issue clarification through the said Circular. The Court also observed that divergent views taken on the subject matter of dispute by various Advance Ruling Authorities and Appellant Advance Ruling Authorities of different States, cannot be rendered a quietus by the issuance of a directive or clarification of the nature issued by the said Circular. The Court also observed that the said impugned Circular fails to consider various aspects and hence it cannot be upheld.

66 Delhi Metro Rail Corporation Ltd vs. Additional Commissioner, Central Goods and Services Tax Appeals II

[2023] 154 taxmann.com 567 (Delhi)

Date of Order: 18th September, 2023

The limitation period of a two-year limit for applying a GST refund does not apply when GST is not chargeable to that transaction and tax has been paid under a mistake of law.

FACTS

The appellant (DMRC) provided services to Surat Municipal Corporation for preparing a project report for Metro Rail of an invoice value of Rs.19,04,520. Such services were not taxable under a notification 12/2017. Surat Municipal Corporation paid Rs.16,14,000 only to DMRC i.e., excluding GST tax amount. However, to comply with GST provisions, DMRC deposited the said GST amount in August 2017. Subsequently, DMRC found that tax was deposited by DMRC under a mistake of law. The refund application filed by DMRC was rejected as it was filed after the expiry of two years from the relevant date. The dispute regarding the rejection of the refund was challenged before the Hon’ble Court.

HELD

The Hon’ble Court held that Article 265 of the Constitution of India prescribes any levy or collection of tax only by authority of law. The Court observed that the GST was not payable by the DMRC. Thus, the amount of tax deposited by the DMRC on an erroneous belief that payment for services rendered by it was chargeable to tax, cannot be retained by the respondents. The Court also noted that the service recipient did not pay tax to DMRC. The Court thus held that the period of limitation for applying for the refund as prescribed under section 54 of the CGST Act, would not apply where GST is not chargeable and it is established that an amount has been deposited under a mistake of law. The Hon’ble Court also referred to the decisions of the State of Madhya Pradesh &Anr. vs. Bhailal Bhai: AIR 1964 SC 1006 and M/s. Cosmol Energy Private Limited vs. State of Gujarat: R / Special Civil Application No. 11905/2020, decided on 22nd December, 2020 and took note of the fact that the department has not filed any appeal against the said decision of the Gujarat High Court.

67 BST Steels (P.) Ltd. vs. Superintendent of Central Tax

[2023] 155 taxmann.com 143 (TELANGANA)

Date of Order: 27th September, 2023

The guarantee / security to the bank provided by the Managing Director by providing the personal properties as security and personal guarantee would attract GST under the Reverse Charge Mechanism.

FACTS AND HELD

The issue before the Court was whether there is no requirement to pay GST on the guarantee / security to the bank provided by the Managing Director by providing the personal properties as security and personal guarantee. The department referred to entry no. 6 of Notification No. 13/2017-Central Tax wherein the services supplied by a director of a company or a body corporate to the said company or the body corporate would attract GST under the Reverse Charge Mechanism. The appellant contended that the personal properties provided by the Managing Director as security and personal guarantee provided for the company are not liable to GST.Relying upon the said Notification the Court held that the petitioner has not made a strong case and hence the interference with the orders is not warranted.

Note: The Readers may note that in the 52nd GST Council Meeting, the GST Council was directed to issue a circular clarifying that when no consideration is paid by the company to the director in any form, directly or indirectly, for providing a personal guarantee to the bank / financial institutes on their behalf, the open market value of the said transaction / supply may be treated as zero and hence, no tax is payable in respect of such supply of services. Further, the factual position as to whether the director was an employee of the company or not does not appear to have been discussed in this matter. In this regard, readers may go through Circular No. 140/10/2020-GST, dated 10th June, 2020.

68 Deepa Traders vs. Principal Chief Commissioner of GST and Central Excise, Chennai

2023 (73) GSTL 176 (Mad.)

Date of Order: 9th March, 2023

Amendment of GSTR-1 and GSTR 3B is permissible, when inadvertent and bonafide human errors were committed and a mechanism to rectify the same was absent.

FACTS

Petitioner, a registered scrap dealer under the GST law committed inadvertent errors in mentioning recipient’s GSTIN / name, invoice number / date and also failed to report invoices-wise details in Form GSTR 1. However, the same was correctly reflected in GSTR-3 and GST liability was discharged. Moreover, IGST was inadvertently remitted under the heads of CGST and SGST. Since Form GSTR-2 or GSTR-1A were not notified, the errors remained unnoticed. On being intimidated by such mistakes from customers, the petitioner was unable to rectify its returns in the absence of any mechanism for it. As a result, the petitioner preferred a writ petition seeking permission for rectification of GSTR-1 before the Hon’ble High Court.

HELD

High Court held that since Forms GSTR-1A and GSTR-2 did not come into existence, the petitioner should not be mulcted with any liability on account of bonafide human error. Accordingly, the petitioner was permitted to re-submit the annexures to Form GSTR-3B with the correct distribution of credit between IGST, CGST and SGST as well as amended GSTR 1 to rectify the bonafide errors. Therefore, the writ petition was allowed in favour of the petitioner.

69 Ktex Non-woven Pvt. Ltd. vs. Union of India

2023 (11) Centax 12 (Guj.)

Date of Order: 14th September, 2023

Benefit of Notification No. 79/2017 — Custom dated 13th October, 2017 granting exemption to import of capital goods from payment of IGST was clarificatory in nature and extended to Capital Goods imported under EPCG scheme between 1st July, 2017 and 13th October, 2017.

FACTS

Petitioner was engaged in the business of fabrics and had imported capital goods under the EPCG scheme. Petitioner applied for exemption on import of capital goods from customs duty and additional duty leviable thereon. After the introduction of GST law on 1st July, 2017, any goods imported would be subject to integrated tax and compensation cess. However, Ministry of Finance vide Notification No. 79/2017 — Customs dated 13th October, 2017, exempted the payment of IGST for the goods imported under the EPCG scheme. Respondent contended that the said notification was issued on  13th October, 2017 and goods were imported between 1st July, 2017 and 13th October, 2017, and hence the petitioner was not eligible to claim exemption and was liable to pay IGST. Thus, the petitioner was compelled to pay the amount of IGST and subsequently sought a refund for the amount of IGST paid. However, the same was rejected by the respondent. Being aggrieved by denial of exemption, the petitioner filed this writ petition before the Hon’ble High Court.

HELD

Relying upon the decision of the jurisdictional High Court in M/s. Prince Spintex Pvt. Ltd. vs. UOI [2020 (35) G.S.T.L. 261 (Guj.)], Hon. High Court held that the objective of the EPCG scheme is to facilitate the import of capital goods to export qualitative goods. The said scheme was not an unconditional exemption. It was an incentive scheme which allowed imports at zero customs duty subject to the fulfilment of export obligations. The intention of the Government was always to exempt the payment of additional duties to the goods imported under the EPCG scheme. Hence, Notification No. 79/2017 — Customs dated 13th October, 2017 must be read as clarificatory in nature as applicable to goods imported between 1st July, 2017 and 13th October, 2017 as per the intention of the legislature. Consequently, the Court directed the respondent to refund the amount of IGST to the petitioner.

70 Jem Exporter vs. Union of India

2023(76) GSTL (Bom.)

Date of Order: 2nd August, 2023

An appeal filed against the cancellation of a registration order cannot be rejected merely due to procedural defects without providing an opportunity for rectifying the same.

FACTS

Petitioner filed an application for a refund of ITC on the export of goods. A common Show Cause Notice was issued to the petitioner and IJM Exporters alleging that ITC was availed by IJM Exporters on goods purchased from non-existing entities which was passed on to the petitioner. Thus, it was alleged that ITC was wrongly availed by the petitioner. Petitioner’s response justifying the refund claim was rejected and an order confirming the demand with interest and penalty was passed. Further, the appeal filed by the petitioner was rejected by the Appellate Authority on the grounds that no proof of pre-deposit payment was provided, a certified copy of the Order-in-Original was not filed and the appeal compilation was not signed. Being aggrieved by such rejection, a writ petition was filed before the Hon’ble High Court.

HELD

It was held that the appeal cannot be rejected merely on the grounds of procedural non-compliance without issuing a defect memo and providing an opportunity to rectify the same. Accordingly, the Hon. Court set aside the impugned Order and restored the appeal directing the Commissioner (Appeals) to issue a Defect Memo and provide an opportunity for rectification of procedural defects.

Recent Developments in GST

  1. NOTIFICATIONS RELATING TO RATE OF TAX

1. The Government has issued various notifications, all dated 19th October, 2023, for amending certain entries in Schedules prescribing rate of tax. The short gist is as under:

Sr. Notification No. Indicative Change
(i) Notification No. 12/2023-Central Tax (Rate) To effect changes in notification no. 11/2017. The change is regarding conditions about eligibility of ITC in given circumstances.
(ii) Notification No. 13/2023-Central Tax (Rate) To effect changes in notification no. 12/2017 Central Tax (Rate) dated 28th June, 2017. The changes are mainly related to the tax rate for supply to the Government.
(iii) Notification No. 14/2023-Central Tax (Rate) To amend notification no. 13/2017 — Central tax (Rate) dated 28th June, 2017. The changes are relating to services supplied by Central Government / departments.
(iv) Notification No. 15/2023-Central Tax (Rate) To effect changes in notification no. 15/2017 Central Tax (Rate) dated 28th June, 2017. The changes are relating to builders and construction of complexes etc..
(v) Notification No. 16/2023-Central Tax (Rate) The changes are related to transport activity.
(vi) Notification No. 17/2023-Central Tax (Rate) The changes are effected in Notification no. 1/2017-Central Tax (Rate) dated 28th June, 2017. The changes are in relation to Molasses and Millet flour and Spirits for industrial uses etc.
(vii) Notification No. 18/2023-Central Tax (Rate) The consequential changes in rate of tax for millets are affected in Notification no. 2/2017-Central Tax (Rate) dated 28th June, 2017.
(viii) Notification No. 19/2023-Central Tax (Rate) The consequential changes are made in notification no. 4/2017-Central Tax (Rate) dated 28th June, 2017 due to changes in rate of tax for Central Government / Central Government departments.
(ix) Notification No. 20/2023-Central Tax (Rate) The changes are effected in Notification no. 5/2017-Central Tax (Rate) dated 28th June, 2017. The changes are about refund restriction.
All above notifications are to apply from 20th October, 2023.
  1. Notifications bearing no. 12/2023- Integrated Tax (Rate) dated 19th October, 2023 to No. 22/2023- Integrated Tax (Rate) dated 19th October, 2023 with similar effect as above, are issued under IGST Act. These will also be effective from 20th October, 2023.

B.    OTHER NOTIFICATIONS

(i) Notification No. 52/2023-Central Tax dated 26th October, 2023

By the above notification, GST Rules are amended. The changes are mainly to provide a valuation method for corporate guarantee and mandatory vacating of provisional attachment orders.

(ii) Notification No. 53/2023-Central Tax dated 2nd November, 2023

The Central Government has issued the above notification to provide a specific procedure for condonation of delay in filing appeals against demand orders (commonly called as Amnesty for filing appeals). The amnesty is under Specified situation and with Specified conditions.

(iii)Notification No. GST-793(E) dated 25th October, 2023

The Central Government has issued the above notification by which the Goods & Services Tax Appellate Tribunal (Appointment and Conditions of Services of President and Members) Rules, 2023 are published.

The Rules contain the procedure for appointment, the salary and other services conditions.

3. GSTN – News

The GSTN has informed through communication dated 12th October, 2023, the availability of the facility for the E-commerce operators through whom unregistered suppliers of goods can supply goods and also enrolment for supply of goods through E-commerce.

4. Circulars

The following circulars are issued by CBIC.

(i) Clarification above Export of services — Circular no. 202/04/2023-GST dated 27th October, 2023

By the above circular, clarifications are givenabout the export of services, particularly about
conditions in sub-clause (iv) of section 2(6) vis-à-vis RBI’s, AP (DIR Services) Circular no. 10 dated 11th July, 2022.

(ii) Place of supply — Circular no. 203/15/2023 dated 27th October, 2023

By the above circular, clarifications are given aboutthe place of supply under various situations like, transportation of goods, advertising sector, Co-location services etc.

(iii) Taxability of Corporate Guarantee — Circular no. 204/16/2023 dated 27th October, 2023

Vide above circular, the clarification about various aspects of the taxability of personal guarantee and corporate guarantee are given.

(iv) Rate of tax — Imitation Zari Thread — Circular no. 205/17/2023 dated 31st October, 2023

By the above circular, clarifications are given about GST Rate on Imitation Zari Thread or Yarn based thread as per recommendation of GST Council.

(v) Clarification above applicability of GST onCertain Services — Circular no. 206/18/2023 dated 31st October, 2023

By this circular, the applicability of tax on various services like passenger transport, reimbursement of electricity, job-work of Barley, Millets and services like horticulture/horticulture works is clarified.

C. ADVANCE RULINGS

42 Job work – Nature

Indian Oil Corporation Ltd.

(Order No. 01/ODISHA-AAAR/Appeal/2022-23 dated 21st June, 2022 (Odisha))

This is an appeal against AR order No. 03/ODISHA-AAR/2021-22 dated 15th December, 2021. The facts in brief are that M/s. Indian Oil Corporation Limited, Paradeep Refinery, is a public sector undertaking. The Appellant owns and operates 15 MMTPA oil refinery in the state of Odisha located at Paradeep and refines crude oil and produces several petroleum products at this location. The Appellant requires Hydrogen gas, Nitrogen gas and HP steam for its refining activity, collectively referred to as ‘Industrial Gases’. Industrial gases can be obtained from inputs such as Naphtha and other utilities such as Demineralised water (‘DM water’), power, cooling water, service water, instrument air etc.

Appellant has awarded a contract to M/s. Praxair India Private Limited (“Praxair”), for the Construction, Commissioning, and Leasing and thereafter for Operating and Maintaining a new Hydrogen & Nitrogen Plant within the IOCL refinery complex at Paradeep for supplying of industrial gas on Build-Own-Operate (BOO) basis to appellant. Under this agreement, all the inputs required for the Hydrogen plant and Nitrogen plant like naphtha, DM water, cooling water, service water, fire water, steam and power were to be supplied by the Appellant to M/s. Praxair India Private Limited, located in its Refinery Complex as above for manufacturing of industrial gases as final product. The final products are sent back to the Appellant by M/s. Praxair India Private Limited for the exclusive utilization in the refinery processes. All the output products produced after processing are transferred to the Appellant by Praxair through a pipeline. The ownership of the input and output products remains with the Appellant only.

In the above background, the Appellant had approached the AAR for getting an advance ruling on the following issues:

“(i)    Whether sending of inputs (Naphtha, DM water, Power, Cooling water, service water and instrument air) by the Appellant to M/s. Praxair India Private Limited and receiving back of industrial gases (Hydrogen gas, Nitrogen gas and HP steam) under the lease agreement will fall under ‘job work’ in terms of section 2(68) of Central Goods and Service Tax Act, 2017 (CGST Act) and Odisha Goods and Service Tax Act, 2017 (OGST Act)?

(ii)    Whether all the payments under the lease agreement will attract GST as applicable to Job Work.”

In view of the above background facts, the AAR gave a ruling that:

“i)    The activities being undertaken in the Appellant’s premises/production plant do not qualify for ‘Job work’ under section 2(68) of Central Goods and Service Tax Act, 2017 (CGST Act) and Odisha Goods and Service Tax Act, 2017 (OGST Act) and Section 143 of said Acts.

ii)    The Appellant’s next question “Whether all the payments under the contract will attract GST as applicable to Job work?” is not maintainable on the ground already stated supra.”

Appellant has filed an appeal against the above AR.

Before the AAAR appellant repeated that the agreement is to be read in whole and as per agreement, the substance is to render job work services.

The ld. AAAR noted the term in the agreement as under:

“the Lessor (M/s. Praxair India Private Limited) does hereby demise unto the Lesee (Appellant) by way of lease the production plant to hold the same unto the Lessee for a period of 15(fifteen) years from the effective date, paying therefore a monthly rent as hereinafter mentioned the Lessor acknowledges that vacant physical and peaceful possession of the production plant has been handed over to the Lessee on the effective date.”

The ld. AAAR therefore observed that the plant is not under the control and possession of M/s. Praxair India Private Limited but it is with Appellant on a monthly rent basis for 15 years.

Therefore, the AAAR held that the agreement between M/s. Praxair India Private Limited and the Appellant is a simple ‘lease agreement’ and not a ‘job work agreement’ and M/s. Praxair India Private Limited has no control and possession over the place where the inputs supplied by the Appellant are processed. The ld. AAAR also referred to other incidental terms.

The ld. AAAR held that the whole operation of Praxair is under the control of the appellant and hence the claim of the appellant that there is job work, service is rejected by ld. AAAR. Accordingly, the ld. AAAR confirmed AR and dismissed the appeal.

43 Construction Contract for Government entity – Pre and Post amendment
Shree Constructions (Order No. AR. Com/10/2022 dated 8th December, 2022 (Telangana)

The facts are that the applicant, M/s. Shree Constructions, are in the business of execution of works contracts wherein they execute the construction of the building on the land provided by the Telangana State Industrial Infrastructure Corporation Limited (TSIICL). The applicant is to construct warehouses and cold storage at the primary processing centre in Jillela Village of Rajanna Siricilla District. The applicant also informed that TSIICL will be letting out godowns for rent and it will be a business activity. The applicant further submitted that the TSIICL is wholly owned by the Government of Telangana and therefore the supply of works contract service by them is to a Government entity. The applicant therefore sought an advance ruling on the rate of tax applicable to supplies made to such Government entity.

The following question was raised:

“Q1. The rate applicable for the works contract service provided to the Telangana State Industrial Infrastructure Corporation Limited (TSIICL) which is wholly owned by the Government of Telangana State by way of construction of building on their land. Whether it is 12 per cent as the for Telangana State Industrial Infrastructure Corporation Limited (TSIICL) is wholly owned by the Government of Telangana or 18 per cent as the for Telangana State Industrial Infrastructure Corporation Limited is a business entity and collecting rent for letting our Godown/Building from its customers.”

The applicant reiterated its contention of a lower rate of 12 per cent.

The ld. AAR observed that TSIICL is a Government entity and apparently falls under S. No. 3(vi) of Notification No. 11/2017 which reads as follows:

“(vi) [Composite supply of works contract as defined in clause (119) of section 2 of the Central Goods and Services Tax Act, 2017, {other than that covered by items (i), (ia), (ib), (ic), (id), (ie) and (if) above provided to the Central Government, State Government, Union Territory, a local authority, a Governmental Authority or a Government Entity by way of construction, erection, commissioning, installation, completion, fitting out, repair, maintenance, renovation, or alteration of —

(a) a civil structure or any other original works meant predominantly for use other than for commerce, industry, or any other business or profession;

(b) a structure meant predominantly for use as (i) an educational, (ii) a clinical, or (iii) an art or cultural establishment; or

(d) a residential complex predominantly meant for self-use or the use of their employees or other persons specified in paragraph 3 of the Schedule III of the Central Goods and Services Tax Act, 2017.

Provided that where the services are supplied to a Government Entity, they should have been procured by the said entity in relation to a work entrusted to it by the Central Government, State Government, Union territory or local authority, as the case may be.

Explanation. — For the purposes of this item, the term business‘ shall not include any activity or transaction undertaken by the Central Government, a State Government or any local authority in which they are engaged as public authorities.”

The ld. AAR also referred to terms ‘Government Authority’ & ‘Government entity’ inserted as the definition in notification no. 31/2017-Central Tax (Rate) dated 13th October, 2017, in Notification no. 11/2017 as clauses (ix) & (x) to the explanation at Para 4 which is as follows:

“(ix) Governmental Authority means an authority or a board or any other body, – (i) Set up by an Act of Parliament or a State Legislature; or (ii) Established by any Government, with 90 percent. or more participation by way of equity or control, to carry out any function entrusted to a Municipality under article 243 W of the Constitution or to a Panchayat under article 243 G of the Constitution.

(x) Government Entity means an authority or a board or any other body including a society, trust, corporation, — (i) Set up by an Act of Parliament or State Legislature; or (ii) Established by any Government, with 90 per cent. or more participation by way of equity or control, to carry out a function entrusted by the Central Government, State Government, Union Territory or a local authority.”

The ld. AAR appreciated that the recipient is a Government entity. It further observed that the original notification No. 11/2017 applied a concessional rate of tax to ‘Government Entities’ & ‘Governmental Authorities’ @ 6 per cent of CGST & SGST each, only if such construction is predominantly for use other than for commerce, industry or any other business or profession. Since in the present case, the ware houses are for business purposes, the ld. AAR held that the above notification cannot apply to the applicant and hence further held that the applicable rate is 18 per cent. The ld. AAR also noted an amendment in the above entry in November 2021 vide Notification No. 15/2021 dated 18th November, 2021 whereby the phrases ‘Government Entity’ & ‘Governmental Authority’ are deleted from the Entry at S. No. 3(vi) of Notification No. 11/2017 with effect from 1st January, 2022. Thus, the works executed even for the ‘Governmental Entity’ or ‘Government Authority’ will be taxable @ 18 per cent from 1st January, 2022.

Accordingly, the ld. AAR confirmed rate @ 18 per cent for pre-amendment as well as post-amendment period.

A similar issue was also raised in one more AR bearing No. AR. Com/15/2022 dated 8th December, 2022 (Telangana). In this case also, the applicant was the same and has executed contracts for the same authority i.e., Telangana State Industrial Infrastructure Corporation Ltd. The applicant is to execute a contract for Bund beautification and construction of suspension wood bridge. The ld. AAR relying upon the above position of notification entry 3(vi) of Notification no. 11/2017 held the above contracts liable to tax @ 12 per cent.

There were further two contracts for establishing Shilparamam and Neera Café and food court. Since the above works are for business purposes, the ld. AAR held that tax applicable to said contracts will be 18 per cent. It was further held that from 1st January, 2022, the first category of contracts will also fall in the category of 18 per cent rate due to amendment in entry 3(vi) as discussed in earlier AR.

44 Exemption to Sub-contractor
Magnetic Infotech P. Ltd. (Order No. AAR. Com/11/2022 dated 22nd November, 2022 (Telangana)

The brief facts are that Magnetic Infotech Pvt Ltd, Plot No. 08, Krishna Nagar Colony, Kakaguda Village, Wellington Road, Picket, Secunderabad, Hyderabad, Telangana — 500009, had filed an application in FORM GST ARA-01 under Section 97(1) of TGST Act, 2017 read with Rule 104 of CGST/TGST Rules under following facts.

The Applicant has entered into agreements with various educational institutions located in different States such as the Board of Secondary Education and others.

The scope of work in respect of the services being provided to the educational institutions by the applicant was noted as falling in the following three categories:

i.    Data processing for conduct of examination

ii.    Results Preparation

iii.    Generation and printing of statistical data and reports in the prescribed proformas as required by the educational institutions.

The aforesaid three categories of services involved processing of examination results which involves collection of examination forms from students and processing, and generation of checklists which are sent to the corresponding education institutions for verification and error correction. Then the checklist corrections are updated to make it error-free data. The further work involved the generation of hall tickets / admit cards, and photo attendance sheets which are sent to the examination centres. There are further activities like Processing the nominal roll data, generation of OMR sheets for obtaining marks, and conducting the examinations with nominal roll data and student information.

Post-examination services include getting the marks awarded from the evaluation centers capturing the data and summarizing it, purifying it and incidental activities till the declaration of results and issuing the marks memos to the students.

The applicant has submitted the following questions for Advance ruling:

a. Whether GST exemption is available to the applicant in respect of the pre and post Examination services being provided to the Educational Boards and Universities (including Open Universities)?

b. If answer to Q. No.1 is affirmative, whether the exemption is available to the applicant in case the services are provided on sub-contract basis i.e. the applicant provides pre and post examination services to the main contractor who in turn provide the said services to the Educational Boards & Universities (including Open Universities)?

Thus, the main issue involved was service rendered by the applicant on sub-contractor basis to main contractor in relation to pre & post-examination services.

The AAR gave AR wherein the Members of the Authority expressed different opinions on the second question raised by the applicant. One of the members Sri S.V. Kasi Visweswara Rao, Additional Commissioner (State Tax) held as under:

“It was opined by the above Member that in view of provisions contained under Sl. No. 66(b) of the Notification No. 12/2017—Central Tax (Rate), dt.28- 06-2017, as amended, the service relating to admission to or conduct of examination is exempt when provided to such educational institution, therefore, where a service itself is exempt, this exemption can be claimed by any taxable person including a sub-contractor.”

The other member Shri B. Raghu Kiran, Additional Commissioner, Central Tax held as under:

“8.4. The service relating to admission to or conduct of examination is exempt when provided to such educational institution. The said entry specifies that the services are required to be supplied to educational institution. Nevertheless, where the privity of contract is between the applicant (as a sub-contractor) and a main contractor, in such cases, the main-contractor does not fall under the definition of ‘educational institution’ and therefore, such supply is not covered under entry 66(b) of Not. No. 12/2017-CT (R) dated 28-06-2017 as amended. As such, the benefit of exemption is not available to the sub-contractor who supplies service to main contractor even though service to ultimately rendered to education institution.”

Under the above facts of divergent views on Question 2 about the applicability of GST, the said question was referred to the Appellate Authority for Advance Ruling for the state of Telangana in terms of Section 98(5) of the CGST/TGST Act, 2017 for hearing and decision on the said question No. 2.

The ld. AAAR reproduced the relevant extract of Notification no. 12/2017-CT(R), dated 28th June, 2022 and reproduced the same as under:

“Sl. No. Chapter, Section or Heading Description of Services
(1) (2) (3)
66 Heading 9992 or Heading 9963 Services provided —

(a) by an education institution to its students, faculty and staff;

(aa) by an educational institution by way of conduct of entrance examination against consideration in the form of entrance fee;

(b) to an educational institution, by way of,-

(i) transportation of students, faculty and staff;

(ii) catering, including any mid-day meals scheme sponsored by the Central Government, State Government or Union territory;

(iii) security or cleaning or house-keeping services performed in such educational institution.

(iv) services relating to admission to, or conduct of examination by, such institution;

Provided that nothing contained in sub-items (i), (ii) and (iii) of item (b) shall apply to an educational institution other than an institution providing services by way of pre-school education and education up to higher secondary school or equivalent.”

The ld. AAAR observed that the exemption is available when services are provided to an educational institution, by way of Services relating to admission to, or conduct of examination by, such institution.

In other words, the ld. AAAR observed that theexemption would be available when the services are provided “to” an educational institution for services relating to admission to, or conduct of examination by, such institution.

The ld. AAAR held that since in the present case, the main contractor to whom the applicant is to provide services as sub-contractor is not an educational institution, though the services are allegedly being provided to the Educational Boards and Universities by the main contractor, the exemption contained in the impugned notification is not available to the applicant. The ld. AAAR held that the wordings of any notification have to be strictly read to allow or deny any exemption.

In view of the above, the ld. AAAR held that the applicant, M/s. Magnetic Infotech Private Ltd., as a sub-contractor, is not eligible to claim exemption as available under Notification no. 12/2017(R), dated 28th June, 2017.

Tax Implications on Assignment of Lease-Hold Rights

INTRODUCTION

Section 105 of the Transfer of Property Act, 1882 defines a lease of immoveable property as a transfer of a right to enjoy such property, made for a certain time, express or implied, or in perpetuity, in consideration of a price paid or promised, or of money, a share of crops, service or any other thing of value, to be rendered periodically or on specific occasions to the transferor by the transferee, who accepts the transfer on such terms.

It has been a common practice for Governments and instrumentalities acting on behalf of Governments to allot parcels of lands on long-term leases. Such typically entail a one-time upfront premium (which fairly approximates the value of the land) and a periodic nominal rent (which also in many cases is compounded and collected upfront). The lease agreements executed between the lessor and the lessee may contain restrictive covenants in terms of use of the property, however, only subject to such restrictive covenants, the lessee is entitled to free use and enjoyment of the property in his own right. Further, such lease agreements permit a free transfer of the property by the lessee to third parties subject to approvals and payment of fees.

When service tax was introduced on ‘Renting of Immoveable Property Services’, the Department attempted to impose service tax on such Governments or instrumentalities and the same was widely challenged on various grounds. The matters are currently sub-judice and pending before the Courts.

The introduction of GST compounded the confusion due to a perceived wide interpretation of the term ‘service’ and limited applicability of exclusion under Schedule III of the CGST Act, 2017. A challenge against the collection of GST by an association of allottees was negated by the Bombay High Court in the case of Builders Association of Navi Mumbai vs. Union of India 2018 (12) GSTL 232 (Bom) and the appeal before the Supreme Court was also dismissed.

LEGISLATIVE DEVELOPMENTS

Considering the challenges of imposition of GST on the lease premium (which fairly approximates the value of land), Entry 41 of Notification 12/2017-CT(Rate) provided for an exemption from GST for one-time upfront amount (called as premium, salami, cost, price, development charges or by any other name) leviable in respect of the service, by way of granting long term (thirty years, or more) lease of industrial plots, provided by the State Government Industrial Development Corporations or Undertakings to industrial units. The said entry was amended from time to time.

Further, in cases where the land was further used for the development of real estate for further sale, Entry 41A inserted with effect from 1st April, 2019 provided for a partial exemption to the extent of sale of residential apartments prior to completion certificate and also prescribed a reverse charge mechanism making the promoter liable for payment of GST.

In view of the above entries, the transaction related to the allotment of plot of land by the Governments and instrumentalities to the allottees is by and large immune from GST except to the extent of proportionate reverse charge mechanism in the hands of the promoter. However, a new controversy is brewing in respect of secondary transactions i.e. the further assignment of lease by the original allottee to third parties.

SCENARIOS

Typically, an allotment of plot of land by the Government instrumentality to a promoter for real estate development would also entail a secondary transaction whereby the promoter would convey the rights in the leasehold land in favour of the proposed society of the apartment buyers. Such an allotment arises out of the covenants agreed upon in the agreement for sale entered into with individual buyers and does not bear a distinct discernible consideration. Entry 16(ii) of Notification 11/2017-CT(Rate) provides for a NIL Rate of tax for the supply of land or undivided share of land by way of lease or sub-lease where such supply is a part of composite supply of construction of units thereby resolving the issue for secondary transactions in case of real-estate development.

However, no explicit exemption entries prevail in case of secondary or subsequent transactions involving an assignment of lease in the underlying land.

In this article, we have discussed the GST implications which revolve around such subsequent transactions of assignment of such long-term leases. While the Supreme Court decision in the case of Builders Association (supra) has already held that GST is attracted on the lease premium, it may still be appropriate to examine the issue de novo due to various legislative developments, which may be useful to distinguish the said decision.

IS LAND, THE SUBJECT MATTER OF LEVY, “GOODS” OR “SERVICE” FOR THE PURPOSE OF GST?

Section 7 includes within the scope of supply all forms of supply of goods or services or both such as sale, transfer, barter, exchange, licence, rental, lease or disposal made or agreed to be made for a consideration by a person in the course or furtherance of business.

A simple grammatical interpretation of the above would suggest that the coverage of a particular transaction under the scope of supply depends on two important parameters — (a) the form of supply — which is widely defined to include all forms of supplies such as sale, transfer, barter, exchange, license, rental, lease or disposal and (b) the subject matter of supply — which is specifically defined to include only ‘goods’ or ‘services’ or ‘both’.

It appears that the scope of coverage can be appreciated only if both the elements i.e. the form of supply and the subject matter of levy are independently analysed. An easy analogy to understand the de-coupled nature of the form and the subject matter of the supply is to examine the scenario of a motor car, which as a subject matter of supply would always constitute ‘goods’. However, depending on the form of supply, i.e. whether it is supplied by way of sale or by way of lease, the transaction would be treated either as supply of goods or supply of services.

Therefore, it first needs to be analysed whether land (as a subject matter of supply) can be considered as goods or services or both? This analysis needs to be de hors of the form of supplying the said land.

The term “goods” is defined under section 2(52) to mean every kind of movable property other than money and securities but includes actionable claim, growing crops, grass and things attached to or forming part of the land which are agreed to be severed before supply or under a contract of supply. Since in the instant case, the subject matter of the transaction is an immoveable property, it is evident that there is no supply of goods.

This takes us to the definition of the term “service” which is defined under section 2(102) to mean anything other than goods, money and securities but includes activities relating to the use of money or its conversion by cash or by any other mode, from one form, currency or denomination, to another form, currency or denomination for which a separate consideration is charged. It is evident that service has been very loosely defined under GST. A literal reading of the definition indicates that anything which is not classifiable as goods would be a service. However, the context requires that a purposive interpretation rather than a literal interpretation of the definition should be adopted. The purposive interpretation would suggest that the subject matter of the transaction should bear an essential character of service.

In Hotel and Catering Industry Training Board vs. Automobile Proprietary Limited – (1968 (3) All. E.R. 399 (at page 402 (E)), Lord Denning speaking for the Court of Appeal explained as under:

“It is true that “the industry” is defined; but a definition is not to be read in isolation. It must be read in the context of the phrase which is defines, realizing that the function of a definition is to give precision and certainly to a word or phrase which would otherwise be vague and uncertain – but not to contradict it or supplant it altogether”.

In HariprasadShivshankar Shukla vs. A.D. Divelkar — AIR 1957 SC 121, a railway company was taken over by the Govt. of India. The railway company served a notice to its workmen to terminate the services of all workmen. The Supreme Court held that in ordinary acceptance, retrenchment connotes that the business itself is being continued but the portion of the staff or labour is discharged as surplusage. In view of the above ordinary acceptance, the Supreme Court held that the termination of service of all workmen as a result of the closure of business cannot be properly described as retrenchment as defined in Section 2(oo) of the Industrial Disputes Act, 1947.

From the above settled position for interpretation of a definition clause, it is clear that one has to find what is the ordinarily accepted version of the expression defined and, thereafter find whether the said ordinarily accepted version fits in with the requirement of the definition clause. However, the definition cannot be interpreted in a manner so as to destroy the essential meaning of the term defined.

Therefore, it needs to be seen as to what is the essence of the word ‘service’. Prior to the introduction of GST, the term service was defined under section 65B(44) of the Finance Act, 1994 to mean any activity carried out by a person for another for consideration. It thereafter included declared services and excluded certain transactions. The basic meaning attributed to the concept of service was any activity carried out by a person for another for a consideration which provides the essence of the general understanding of the word service and a similar context should be applicable in the GST law as well especially considering the fact that the GST Legislation in effect is consolidating many erstwhile indirect taxes rather than imposing a tax on some activities / sectors which were not taxable earlier.

We can also read the definition of service as being anything other than goods in the context of the Supreme Court decision in the case of Tata Consultancy Services Limited vs. State of Andhra Pradesh [2004 (178) ELT (022) SC] where the fundamental attributes of goods were listed. In the said case, the Hon’ble Court held that any property becomes goods if it satisfies the three conditions, namely utility, capability of being bought and sold and capability of being transmitted, transferred, delivered, stored and possessed. The relevant extracts are reproduced below for a ready reference:

It is not in dispute that when a programme is created it is necessary to encode it, upload the same and thereafter unloaded. Indian law, as noticed by my learned Brother, Variava, J., does not make any distinction between tangible property and intangible property. A ‘goods’ may be a tangible property or an intangible one. It would become goods provided it has the attributes thereof having regard to (a) its utility; (b) capable of being bought and sold; and (c) capable of transmitted, transferred, delivered, stored and possessed. If a software whether customized or non-customized satisfies these attributes, the same would be goods. Unlike the American Courts, Supreme Court of India have also not gone into the question of severability.

As rightly held in the above decision, any property, whether tangible or intangible is classifiable as goods if it has the following attributes, namely:

a.    The item should have a utility.

b.    The item should be capable of being bought and sold.

c.    The item should be capable of being transmitted, transferred, delivered, stored and possessed.

In fact, the concept of transferability provides the attribute of ‘anything’ becoming property. Such properties can be further classified into moveable properties, immovable properties, tangible properties or intangible properties. Some of these may constitute goods while some may not. When the concept of service is examined, it has to be examined vis-à-vis this aspect of transferability. If there is a possibility of transferability, it would not amount to a service.

Therefore, a view can be taken that land cannot be considered either as ‘goods’ or as ‘services’. At this point in time, it must be noted that there is a distinction between the subject matter of supply and the form / manner of the supply. For example, irrespective of whether a motor car is sold or leased, the subject matter of the supply being a motor car continues to remain ‘goods’ and would be treated as such under Section 7(1)(a) of the Act. However, in view of the principles of classification provided under Section 7(1A) read with Schedule II, the sale of a motor car would be treated as the ‘supply of goods’ whereas the lease of a motor car would be considered as the ‘supply of services’. Applying a similar analogy, ‘land’ being the subject matter of the current transaction, cannot be treated as goods or services or both and one need not get carried away by the form / manner of the supply to determine whether the land is goods or services. In other words, Schedule II which treats certain activities or transactions as the supply of goods or services or both shall not have any bearing on the decision of whether the transaction constitutes a supply of service or not.

IF YES, WHAT IS THE FORM / MANNER OF SUPPLY?

Once it is accepted that ‘land’ as a subject matter of the supply does not constitute either goods or services or both, this question becomes redundant. However, to address the said question, it is evident that the term ‘supply’ includes all forms of supplies such as sale, transfer, barter, exchange, licence, rental, lease or disposal. Therefore, merely restricting the analysis from the point of view of the form / manner of the supply and ignoring the subject matter of supply being goods or services or both, one may conclude that both sale as well as lease are within the scope of supply.

Ignoring the subject matter of supply being goods or services or both, one may be then tempted to refer to Entry 5 of Schedule III of the Act. The said entry, inter alia, specifies that the “sale of land” shall be treated neither as supply of goods nor supply of services. The verbiage under the said Entry could then be compared with the exclusion under the erstwhile service tax law wherein “a transfer of title in goods or immovable property, by way of sale, gift or in any other manner” was excluded from the definition of service. Therefore, one may be tempted to imply that the GST Law proposes to provide for a limited exclusion for ‘sale of land’ and other transfers pertaining to land are not explicitly excluded and therefore a subject matter of GST.

However, in this context, it may be important to appreciate that the levy of GST is not governed by Schedule III. It is rather governed by Section 9 read with Section 7(1). As discussed earlier, it is possible to argue that in the instant case, land cannot be considered either as goods or as services. It is an accepted principle in law that an exclusion clause, being a benevolent one, can only exclude something which was originally covered and would have no effect in cases where the original coverage itself is in doubt. More importantly, an exclusion clause cannot be reverse-read to presume the existence of taxability and cannot thereby cast an onerous burden on the taxpayer which never existed. Useful reference can be made to the decision of the Supreme Court in the case of Gypsy Pegasus Limited vs. State of Gujarat 2018 (15) GSTL 305 (SC).

Further, a long-term lease of 99 years in essence represents a transaction of sale of immovable property and cannot be considered as renting / service simpliciter. In fact, the purpose of the Corporations entering into a long-term lease arrangement is merely to retain control over the development of the region. It does not mean that the person who has been allotted the plots is not the owner of the plot. Various clauses in the lease agreement, the intention and conduct of the parties clearly vindicate this position.

The provisions of various enactments, particularly the Transfer of Property Act, 1882 and various decisions in the context of a diverse set of legislations including the Consumer Protection Act, 1986, and the Income-tax Act, 1961, etc. also support this proposition that a long-term lease arrangement, in substance, represents a transfer of a right in immovable property and not a service. The following table summarises some of these provisions:

Legislation / Agency / Judiciary Gist of the Relevant Provision / Decision
Tulsi vs. Paro — 1997 (2) SCC 706 (SC) A lease of an immovable property creates an interest or a right in favour of the lessee as against a license wherein no such right in the property is created.

 

In the proposed transaction, it is evident that transfer of leasehold rights in land against the receipt of a consideration constitutes a “demise” of property in favour of the transferee / lessee. Such an activity is clearly an activity of transfer of right in the immoveable property and therefore cannot be considered as a service.

Section 105 of the Transfer of Property Act, 1882 Lease is defined as a transfer of right to enjoy such property.
The Bombay Stamp Act, 1958 A person acquiring a land on lease for a period more than 15 years has to pay stamp duty on 90 per cent of the market value of the land which implies that such an acquirer is treated as an owner of the land himself and Stamp Duty is collected on an appropriate basis from him.
Foreign Exchange Management Act, 1999 A transaction of lease exceeding five years is treated as a capital account transaction by the Reserve Bank of India implies that the transaction is not that of procurement of service.
U.T. Chandigarh Administration & … vs. Amarjeet Singh And Ors (2009) 4 SCC 660 (SC) The auction of plot of land does not involve rendering of any service as there is no hiring or availing of services by the person bidding at the auction and consequently the act of leasing plots by auction by the appellants did not result in the successful bidder becoming a `consumer’ or the appellants becoming `service providers’.
Lucknow Development Authority and Ghaziabad Development Authority (SC) Clear distinction drawn between delay in granting possession of undeveloped existing sites on lease and developed sites, which categorizes the former as not
 entailing denial or deficiency in service.
Abhay Pratap Singh vs. Capital Promoters Pvt. Ltd 1992 73 CompCas 149 (SC) Clear exclusion of outright sale of immovable property by one person to another person from the definition of service under the MRTP Act, 1969.
Magus Construction Pvt. Ltd. vs. Union of India [2008 (11) S.T.R. 225 (Gau.)] The term service is defined as an activity which denotes transformation of use of goods as a result of voluntary intervention of the Service Provider and is an intangible commodity in the form of human effort. This clearly indicates that passive transactions involving
transfer of rights in immovable property cannot be classified as services.
European Union Court in Belgium vs. Temco Europe SA [Case C-284/03 of 18-11-2004] Leasing / letting of immovable property is a passive transaction and hence it would not be liable to VAT.
1) Assam Bengal Cement Company Limited vs. CIT [1955] 27 ITR 34 (SC)

 

2) DurgaMadiraSangh vs. Commissioner of Income Tax [1969] 72 ITR 769 (SC)

 

3) CIT vs. Panbari Tea Co. AIR 1965 SC 1871 (SC)

Lease premium paid up front, when the lessee acquires the interest in the property, is a single payment made towards the acquisition of a right and is a capital income and cannot be termed as a rental income, which is received periodically against a stipulation for continuous enjoyment of benefits.
Mukund Limited [2007] 291 ITR (AT) 249 (Mumbai Tribunal) Lease premium cannot be termed as advance payment of rent or any payment towards rent, since it is a capital expenditure.
CIT vs. PrabhuDayal 1971 82 ITR 802 (SC) A distinction has to be drawn between a payment made for services or discharge of liabilities or compensation for termination of an income producing asset. The latter is not recurring in nature and hence cannot be a revenue receipt. The amount realized on account of grant of right to enter and construct on the premises followed by subsequent agreement to lease constitutes parting away of the plot of land and hence is a capital receipt.
Various Financial Institutions / Banks The lease premium paid by the allottee can be financed by the bank since the bank recognizes the lease premium as an amount paid towards acquisition of asset and not towards consumption of service.
Accounting Treatment in the books of the allottees The lease premium paid towards the rights purchased by various allottees is capitalized in their books of accounts and not treated as a service which is immediately consumed.

At this juncture, it may be relevant to examine the decision of the Bombay High Court in the case of Builders Association of Navi Mumbai vs. Union of India 2018 (12) GSTL 232 (Bom) wherein the Court held that one-time lease rent paid as consideration to Government agency, CIDCO, for the lease of land for residential / commercial purposes, was liable to Goods and Services Tax as any lease, tenancy, easement, licence to occupy land was covered under ‘supply of services’ under GST Act and only those transactions or activities of Government or Statutory authorities could be exempted which are specifically notified to be so which wasn’t the case in this particular scenario.

While the Bombay High Court decision may suggest that GST is payable on the grant of leasehold rights in a plot of land, it may be important to note that the said decision was heavily influenced by the law then prevailing. The scope of supply is provided under section 7(1). Sub-clause (d) thereof, at the relevant point of time, included the activities to be treated as supply of goods or supply of services as referred to in Schedule II within the scope of supply. The Hon’ble Court was guided by Entry 2(a) of Schedule II inter alia mentioning lease of land and the placement of sub-clause (d) to conclude that in view of the inclusive nature of Schedule II, the Court is prohibited from probing further in the said matter.

Further, the Bombay High Court also observed that Section 7(2) permitted the Government to notify certain activities as neither supply of goods or services and that no such notification was issued. The said observation of the Bombay High Court in para 12 of the said decision, with due respect is factually incorrect, since Notification 14/2017-CT(Rate) as amended by Notification 16/2018-CT(Rate) indeed provided for an exemption for services by way of any activity in relation to a function entrusted to a Panchayat or to a Municipality under article 243G or 243W of the Constitution.

However, subsequent to the pronouncement of the said decision, the CGST Act was amended with retrospective effect whereby sub-clause (d) was deleted from Section 7(1) and was introduced in a slightly different manner as Section 7(1A). Through the said retrospective amendment, it is specifically provided that only where certain transactions constitute a supply in accordance with Section 7(1), will they be treated as a supply of goods or services as mentioned in Schedule II. Effectively, the retrospective amendment relegates the entries mentioned in Schedule II as classification entries rather than deeming entries.

When the Bombay High Court decision was agitated in an SLP before the Supreme Court, the Hon’ble Supreme Court dismissed the SLP. However, it may be important to note that the Supreme Court clarified that it has not examined the question of exemption or the scope or ambit of expression in Clause 2(a) of Schedule II and left those issues open. As such, despite the dismissal of the SLP, it can be said that the final findings of the Bombay High Court decision are still open for judicial review.

The above discussion indicates that there is a possible view to suggest that entering into an agreement for the lease of land may not constitute a supply of goods or services or both and therefore, shall not attract the levy of GST. In that scenario, the exemption provided by entry 41 becomes redundant. It must be noted that merely because an exemption is granted does not make the transaction taxable in the first place, as held by the Hon’ble Supreme Court in the case of Larsen & Toubro Ltd. [2015 (39) S.T.R. 913 (S.C.)] wherein it has been held as under:

44. We have been informed by counsel for the revenue that several exemption notifications have been granted qua service tax “levied” by the 1994 Finance Act. We may only state that whichever judgments which are in appeal before us and have referred to and dealt with such notifications will have to be disregarded. Since the levy itself of service tax has been found to be non-existent, no question of any exemption would arise. With these observations, these appeals are disposed of.

In case it is ultimately held that the grant of long-term lease of land is not covered under the GST Law, it would logically follow that even a subsequent assignment of the leasehold rights should also be granted the same tax treatment. However, irrespective of the tax treatment of the original transaction, there are certain additional points which can be used to argue non-taxability for assignment transactions as discussed in the subsequent paragraphs.

Whether the transaction of assignment of lease is governed by the ‘scope of supply’?

Section 7(1)(a) defines the scope of supply for the purposes of the levy of GST. The said provision is triggered only when the supply is in the course or furtherance of business. When a person engaged in a business activity had acquired the lease rights in the said property with an intention to use the said premises for the business, carried on the business from the said premises for some years and then assigned the lease rights to a third party, the moot question that needs analysis is whether the assignment of the lease rights is in the course or furtherance of such person?

The term ‘business’ is widely defined under section 2(17) of the CGST Act, 2017 to include the following:

(a)    any trade, commerce, manufacture, profession, vocation, adventure, wager or any other similar activity, whether or not it is for a pecuniary benefit;

(b)    any activity or transaction in connection with or incidental or ancillary to sub-clause (a);

(c)    any activity or transaction in the nature of sub-clause (a), whether or not there is volume, frequency, continuity or regularity of such transaction;

(d)    supply or acquisition of goods including capital goods and services in connection with commencement or closure of business;

(e)    provision by a club, association, society, or any such body (for a subscription or any other consideration) of the facilities or benefits to its members;

(f)    admission, for a consideration, of persons to any premises;

(g)    services supplied by a person as the holder of an office which has been accepted by him in the course or furtherance of his trade, profession or vocation;

(h)    activities of a race club including by way of totalisator or a license to book maker or activities of a licensed book maker in such club; and

(i)    any activity or transaction undertaken by the Central Government, a State Government or any local authority in which they are engaged as public authorities;

It may be noted that the assignor may not be in the business of buying and selling immovable properties or obtaining and assigning leases in immovable properties. Therefore, by itself, the act of assigning the lease rights in the plot of land cannot constitute ‘business’ under sub-clause (a). Further, the action of assigning the lease right in the immoveable property cannot be considered to be incidental to the business and therefore sub-clause (b) is not attracted.

Clause (d) may become applicable only in limited cases when the assignment takes place on account of the closure of business. However, if the assignment takes place for other reasons, such as relocation of business, it cannot be said that the assignment of the lease rights is in connection with the closure of business (as the business continues) and therefore even sub-clause (d) is not applicable. No other subclauses of the definition of business are relevant to the current discussion. Therefore, it can be said the assignment of lease rights is not in the course or furtherance of its business and therefore, the same is not liable for GST.

One more aspect to examine is that Schedule II treats the lease of land as a service. Even if a conservative view is taken that Schedule II is inclusive and not clarificatory in nature, there is no relationship between a lessor and lessee, between the assignor and the intending Buyer. The Corporation continues to remain lessor in all situations. Through the assignment agreement, the assignor agrees to cease to be a Lessee and facilitate the Buyer becoming the Lessee. In the absence of a direct Lessor-Lessee relationship between the assignor and the Buyer, Entry 2(a) of Schedule II treating the lease of land as a service does not get triggered.

Therefore, a view can be taken that GST is not payable on the consideration for assignment / transfer of leasehold rights in the Land by the assignor to the Buyer.

If the assignor takes a conservative view, is the benefit of entry 41 available?

As discussed above, entry 41 conditionally exempts following services:

[Upfront amount (called as premium, salami, cost, price, development charges or by any other name) payable in respect of service by way of granting of long term lease of thirty years, or more) of industrial plots or plots for development of infrastructure for financial business, provided by the State Government Industrial Development Corporations or Undertakings or by any other entity having [20] per cent, or more ownership of Central Government, State Government, Union territory to the industrial units or the developers in any industrial or financial business area.]

The question that arises is whether the assignor can claim exemption on the assignment of the lease to a third party. The above-mentioned entry grants an exemption for an upfront amount (called as premium, salami, cost, price, development charges or by any other name) payable in respect of service by way of granting of long-term lease of thirty years, or more. While one may be tempted to treat such an exemption as restrictive only to the lessor, the usage of the words ‘any other amount’ expands the scope of coverage under the said entry.

In addition, a view can be taken that what is sought to be exempted is the amount payable for “service by way of granting of long-term lease of thirty years, or more) of industrial plots or plots for development of infrastructure for financial business, provided by the State Government Industrial Development Corporations… …”. It may be noted that after the assignment, the lessee changes but not the lessor. It must also be noted that the fourth proviso to conditions listed in Entry 41 has reference to subsequent lessee clearly indicating that the entire chain of transactions is sought to be exempted by the said entries. However, such exemption would be subject to the other conditions prescribed in the notification, one of which is the end use, i.e., the land should continue to be used for the purposes for which the lease was granted.

CONCLUSION

A plain reading of the provisions might tempt one to take a view that an assignment of long-term leasehold rights is a taxable supply of service and therefore liable for payment of GST. However, the stakes involved are substantial and with input tax credit eligibility at the recipient end also a potential issue, it is important that all probable options are evaluated before a final position is taken.

From The President

Dear BCAS Family,

 

“Financial literacy is an essential part of knowing how to avoid financial mistakes and devising plans for a secure and strong financial future.” – Tim Pawlenty

 

Financial Literacy is a topic that is extremely important to just about everyone these days. It’s important not only because it impacts everyone, but also because those who lack a sound financial education risk a future of unnecessary instability and hardship.Chartered Accountants can bring a big change in the nation’s future by contributing towards increasing financial literacy.In a tweet, PM Modi said, “On #CharteredAccountantsDay, we honour a professional community that is among our nation’s key financial architects. Their analytical acumen and steadfast commitment are crucial to strengthening our economy. Their expertise helps build a prosperous and self-reliant India.”

 

Measuring Financial Literacy essentially involves measuring a combination of awareness, knowledge, skill, attitude and behaviour necessary to make sound financial decisions and ultimately achieve individual financial well-being. According to the Standard & Poor’s Global Financial Literacy Survey, the world’s largest and most comprehensive global measurement of financial literacy, India ranks 73rd out of 144 countries. In India, only 27 per cent of the population is financially literate, meaning only one out of every five Indians is equipped to deal with one of the most crucial aspects of human well-being.

 

A survey of “Financial Literacy among Students, Young Employees and the Retired in India” conducted by IIM-A, supported by CITI Foundation, reveals that “high financial literacy is not widespread among Indians where less than a quarter of the population have adequate knowledge on financial matters. There is a lack of understanding among Indians about the basic principles of money and household finance, such as compound interest, the impact of inflation on rates of return and prices, and the role of diversification in investments.”

 

In India, many rural communities lack access to financial services and education. As per “Deciphering Financial Literacy in India”, an article published in the Economic & Political Weekly, India also deals with tremendous inter-state differences within the country itself. Metropolitan areas like Maharashtra, Delhi, and West Bengal have financial literacy rates of 17 per cent, 32 per cent, and 21 per cent, respectively. At the same time, states like Bihar, Rajasthan, Jharkhand and Uttar Pradesh, where poverty is rampant, suffer from low financial literacy rates. On the one hand, Goa as a state has the highest financial literacy rate of 50 per cent, whereas Chhattisgarh lacks financial education and has the lowest literacy rate of 4 per cent.

Chartered Accountants can play a vital role in bridging this gap by providing financial education to these communities. By teaching individuals about savings, investments and budgeting, Chartered Accountants can empower them to make better financial decisions and improve their standard of living.

Small and Medium Enterprises (SMEs) are the backbone of the Indian economy, but they often face financial challenges that can hinder their growth. We can help SMEs overcome these challenges by providing financial and accounting advice, including tax planning and compliance, financial forecasting and budgeting.

Many non-profits in India struggle to manage their finances, which can hamper their ability to deliver services to those in need. Chartered Accountants can provide pro bono services to these organisations to help them manage their finances and improve their operations. In fact, it is heartening to note that many CAs are indeed rendering such noble services.

Digital financial literacy is also crucial to empower individuals to navigate digital financial landscapes securely and make informed decisions. The masses should understand online banking, digital payments, online trading, financial apps for expense management and budgeting, e-commerce, digital documentation and more to achieve more financial inclusion.

There is also a growing recognition of the need to incorporate financial education into the school and college curriculum. Integrating basic financial concepts into the education system can help build a foundation for financial literacy from an early age. Our Society has also been working on a financial literacy drive at schools and colleges in Mumbai.

The Indian government has launched several financial inclusion initiatives aimed at bringing financial services to all citizens, especially those in rural areas. Our Society intends to take various initiatives to promote Financial and Tax Literacy amongst the different sections of society, namely Employee Workforce, Police, Doctors, Technocrats, Housewives, Senior citizens, Teachers and Professors, Students, Farmers and Rural Households, MSMEs, Entrepreneurs, Start-ups and Businessmen.

Promoting financial literacy is essential to empower individuals, reduce financial vulnerabilities and foster economic growth.

To take further steps in this direction, members are requested to take Resolution and volunteer to achieve the mission of making citizens around them financially literate.

CHARTERED ACCOUNTANT FOR CHANGE PAST PRESIDENT – SHRI PRADYUMNA NATVARLAL SHAH

Shri PradyumnaNatvarlal Shah, a revered figure in the annals of the Bombay Chartered Accountants’ Society, left for his heavenly abode on 15th November, 2023. Fondly known as Pradyumna Bhai, he served as the BCAS President during the year 1968–69 and was the visionary behind the BCAS esteemed flagship event, “General RRC”. BCAS lost one of its founding leaders, a mentor to many, and one of the pioneers in the 75 years of BCAS history. During his professional journey, he has also been the President of the Institute of Chartered Accountants of India and the Chamber of Tax Consultants. BCAS bows to the yeoman services rendered by the noble soul.

REIMAGINE

On 4th, 5th, and 6th January, 2024, BCAS will organise a mega-conference ReImagine. The conference deals with Reimagining the Profession in this Changing Technological Environment. A total of 15+ thought-provoking sessions impacting the current state of professionals in practice or industry are planned. Thought leaders from all over India and abroad are going to be there, sharing their thoughts on topics like Start-ups; New Age Professional Firms; One World One Tax; Capital Markets; the impact of Technology on Tax, Audit, and other service areas; Changing Corporate Landscape; New Age Economic Wars; the changing roles of CA and many more. I am glad to inform you that Padma Bhushan Shri Kumar Mangalam Birla, Chairman of Aditya Birla Group, has consented to deliver the Keynote address. There will also be a Leadership talk by Padma Vibhushan Shri ViswanathanAnand (Indian Chess Grandmaster).

Participants from more than 100+ cities / towns, youth and seniors from Practice and Industry have registered for this event, providing every participant with a 365-day networking opportunity in just three days. Interaction with various CFOs from the industry over the CFO roundtable dinner and much more will be an additional takeaway.

I would urge the readers not to miss this one-of-a-kind event, which will be extremely beneficial for their professional journeys. It is an event where History meets the Future, Vision meets Thoughts, Network meets Net Worth, and I meet We!

To learn more about the conference and our thought leaders, visit reimagine.bcasonline.org.

I eagerly await ReImagine to welcome you on 4th January, 2024.

Pains of Harsh Penalties for Bonafide Mistakes

“It is the power of punishment alone, when exercised impartially in proportion to the guilt, and irrespective of whether the person punished is the King’s son or an enemy, that protects this world and the next.” – Kautilya

 

In a recent decision, the division bench of the Mumbai ITAT, in the case of Shobha Harish Thawani,1 confirmed the levy of penalty under Section 43 of The Black Money (Undisclosed Foreign Income And Assets) And Imposition Of Tax Act, 2015 (BMA) for non-disclosure of foreign assets in ‘Schedule FA’ of the Income-tax Return (ITR). In this particular case, the assessee had made a joint investment (with her husband) in an overseas Fund, having a 40 per cent share, but failed to disclose the said foreign asset in Schedule FA of ITR filed for A.Ys. 2016–17 and 2018–19. The assessee explained the source of the investments and offered the income thereon to tax in the ITRs. The Assessing Officer (AO) did not accept the assessee’s plea of bonafide error in disclosing such investment and levied a penalty of R10 lakh for each of the A.Ys. under Section 43 of the BMA for furnishing inaccurate particulars of investments outside India.

1   [TS-554-ITAT-2023(Mum)] dated 9th August, 2023

 

The ITAT noted that Section 43 does not provide any room not to levy a penalty, even if the foreign asset is disclosed in the books, since the penalty is levied only towards non-disclosure of foreign assets in ITR. Strangely, her husband, who was the joint owner of the said investments, also failed to disclose the said investments in his ITR, but AO levied no penalty in his case. The language of Section 43 of the BMA is “…the Assessing Officer may direct that such person shall pay, by way of penalty, a sum of ten lakh rupees”(emphasis supplied). Regarding the discretion to levy the penalty, ITAT held, “The Assessing Officer exercised his discretion judiciously.” Thus, it did not give any relief to the assessee.

However, Mumbai ITAT, in the case of Leena Gandhi Tiwari,2 held that “a mere non-disclosure of a foreign asset in the income tax return, by itself, is not a valid reason for a penalty under the BMA.”


2   Addl. CIT vs. Leena Gandhi Tiwari (2022) 216 TTJ 905 / 96 ITR (T) 384(Mum) (Trib)

As far as the discretion of the AO is concerned, the ITAT held that “It is also to be noted that Section 43 provides that the Assessing Officer “may” impose the penalty, and the use of the expression “may” signifies that the penalty is not to be imposed in all cases of lapses and that there is no cause and effect relationship simpliciter between the lapse and the penalty.”

As to what should be the considerations for the exercise of this inherent discretion by the Assessing Officer, we find some guidance from Hon’ble Supreme Court’s judgment in the case of Hindustan Steel Ltd vs. The State of Orissa3, which, inter alia, observes that “…penalty will not ordinarily be imposed unless the party obliged, either acted deliberately in defiance of law or was guilty of conduct contumacious or dishonest, or acted in conscious disregard of its obligation. The penalty will not also be imposed merely because it is lawful to do so. Whether a penalty should be imposed for failure to perform a statutory obligation is a matter of discretion of the authority to be exercised judicially and on a consideration of all the relevant circumstances. Even if a minimum penalty is prescribed, the authority competent to impose the penalty will be justified in refusing to impose a penalty, when there is a technical or venial breach of the provisions of the Act or where the breach flows from a bona fide belief that the offender is not liable to act in the manner prescribed by the statute.”


3   [(1972) 83 ITR 26 (SC)]

In both these cases, the respective assessee claimed it was a genuine or a bonafide mistake. There was no mens rea. In the former case, this plea was rejected, and in the latter case, it was accepted.

The main objective of the BMA, as mentioned in the Statement of Objects and Reasons, appears to be “tracking down and bringing back undisclosed foreign assets and income which legitimately belongs to the nation.” Therefore, stringent regulations and harsh penalties are prescribed. These provisions are to deal with serious monetary crimes and not for bonafide mistakes or careless omissions, more so when there is no culpable state of mind. The intention behind the omissions must be considered, especially when the income from such investments is offered for taxation. Provisions of Section 43 of the BMA should be invoked judiciously, as one should not be penalised with a harsh penalty when one has made investments through a normal banking channel complying with FEMA formalities (e.g., remittance under Liberalised Remittance Scheme / ODI, etc.) or the income from such investments / assets are offered for tax in India. Levying of penalty in such circumstances, merely for non-disclosure of foreign investments / assets, and that too in a particular part of the return only, may be legally correct but morally wrong.

The severity of this penal provision can be understood by the fact that even if the assessee has made a one-time investment in foreign asset amounting to Rs 1,00,000 but failed to disclose the same in his ITR, a penalty of Rs 10 lakhs can be levied for each year of non-disclosure. For example, if a person fails to disclose such investment for three years, then Rs. 30 lakhs can be levied as a penalty for a technical default repeated three times. The only exception from such a penalty is in respect of an asset, being one or more bank accounts having an aggregate balance which does not exceed a value equivalent to Rs. 5,00,000 at any time during the previous year.”

The AOs should, therefore, use their discretion more judiciously and desist from routinely levying penalties. Unfortunately, some AOs seem to take a different view. In Leena Gandhi Tiwari’s case (supra), the AO relied on the decision of the Supreme Court (SC) in the case of UOI vs. Dharmendra Textiles Processors4relating to section 11AC of the Central Excise Act, 1944, dealing with a mandatory penalty in case of any wilful misstatement or suppression of facts or contravention of any of the provisions thereunder.

4   (2008) 306 ITR 277 (SC)

The situation is no better under the Income-tax Act, 1961. Post SC decision in the case of Dharmendra Textiles, the AOs were invoking penalty provisions under the Income tax in a routine manner. This erroneous interpretation was set right by the SC in UOI vs. Rajasthan Spinning & Weaving Mills5, wherein it was held that: “At this stage, we need to examine the recent decision of this Court in Dharmendra Textile Processor’s case (supra). In almost every case relating to penalty, the decision is referred to on behalf of the Revenue as if it laid down that in every case of non-payment or short payment of duty, the penalty clause would automatically get attracted, and the authority had no discretion in the matter. One of us (AftabAlam, J.) was a party to the decision in Dharmendra Textile Processor’s case (supra), and we see no reason to understand or read that decision in that manner.”


5   (2009) 180 Taxmann 609 (SC)

To conclude, any penalty should be proportionate to the seriousness or magnitude of the violations / lapses. The purpose of a penalty should be to discourage intentional wrongdoing while addressing unintentional errors through a more lenient approach, such as a reprimand or nominal fine. Provisions concerning harsh penalties under BMA, the Income-tax Act, 1961, and various other Statutes need to be suitably amended to give relief in respect of bonafide mistakes or venial / technical lapses or additions arising due to ambiguous provisions. Often, there are delays in compliance (e.g., KYC verification) because of a server failure on the government website, network issues, mistakes in forms, etc. Whereas taxpayers are at the receiving end for mistakes on their part, the revenue officials get away without any penal actions if their decisions are overruled or found to be blatantly incorrect or are in contrast to the jurisdictional Court / ITAT rulings. Professional bodies like BCAS can assist in identifying harsh penalty provisions under various laws and suggest checks and balances to stop their misuse and encourage compliance.

Let us hope and trust that till the time the laws are amended, the Courts and AOs will take a lenient view of such pardonable lapses, which will help to bridge the trust deficit between the taxpayers and the Income-tax department.

Article 13(4) of old India-Mauritius DTAA – Having failed to establish that assessee is a conduit, basis TRC issued by tax authorities, the assessee is a tax resident of Mauritius and is entitled to DTAA benefits

9 Veg N Table vs. DCIT
TS-657-ITAT-2023 (Del)
ITA No.: 2251/Del/2022
A.Y.: 2018-19

Date of Order: 31st October, 2023

Article 13(4) of old India-Mauritius DTAA –— Having failed to establish that assessee is a conduit, basis TRC issued by tax authorities, the assessee is a tax resident of Mauritius and is entitled to DTAA benefits.

FACTS

Assessee, a Mauritius-based investment holdingcompany, sold shares of Indian Company (ICO) and claimed exemption under Article 13(4) of India-Mauritius DTAA. Shares were acquired prior to 1st April, 2017. Assessing Officer (AO) denied exemption noting that:a) ICO was 75 per cent held by UKCO and 25 per centby Canadian individuals b) there were no operatingincome or expense in the books of the assesse since the date of investment c) no remuneration was paid to directors d) two out of three directors held a number of directorships e) Third director was a Canadian individual who was ultimate beneficial owner f) there is no commercial rationale for establishing a company in Mauritius.

The assessee appealed to DRP. DRP upheld the order of AO.

Being aggrieved, the assessee appealed before the Tribunal.

HELD

Assessee holds valid TRC and should be treated as a resident of Mauritius. Reliance was placed on CBDT circulars and under noted decision1.

AO alleged that the assessee is a conduit company. These allegations are not supported by substantive and cogent material.

GAAR provisions empowered AO to deny DTAA benefits. AO did not invoke GAAR provisions.


1    ABB AG in IT(IT)A No.1444/Bang/2019 dated 24th November, 2020

Section 271(1)(c): Penalty — Concealment of income — Full disclosure of facts — No facts concealed or hidden — Penalty cannot be levied for difference in the opinion

24 Pr. Commissioner of Income Tax – 2 vs. Tata Industries Ltd.

[Income Tax Appeal No. 1039 of 2018, (Bom.) (HC)]

Date of Order: 9th November, 2023

Section 271(1)(c): Penalty — Concealment of income — Full disclosure of facts — No facts concealed or hidden — Penalty cannot be levied for difference in the opinion.

Assessee had filed a return of income on 30th October, 2004, declaring total income at the loss of Rs.15,97,83,660. The Assessing Officer (AO) completed the assessment under section 143(3) of the Act, determining the total income at Rs.32,38,84,147 under the normal provisions of the Act. Various additions / disallowances were made related to capitalisation of fees paid to S. B. Billimoria& Co. of Rs.19,44,000, disallowance of legal fees claimed in case of Deejay System Consultants Pvt Ltd. of Rs.4,85,000 and disallowance of claim of provision of diminution in value of investments written back of Rs.38,84,00,000.

The penalty proceedings under Section 271(1)(c) of the Act were also commenced. The AO came to the conclusion that assessee had committed default by filing inaccurate particulars of total income in respect of certain disallowances and levied penalty of Rs.1,60,96,088 being 100 per cent of the tax on the income of Rs.44,86,69,234 sought to be evaded under the normal provisions of the Act and Rs.18,43,03,149 being 100 per cent of the tax on the income of Rs.51,37,37,000 sought to be evaded under Section 115JB of the Act. The CIT(A) allowed the appeal, and the penalty levied by AO was deleted. The Tribunal dismissed the appeal filed by the Department vide order dated 28th September, 2016.

The Hon Court observed that the Tribunal has upheld the findings of the CIT(A) on the basis that the entire claim was made by the assessee making full disclosure, and no facts were concealed or hidden. The disallowance was made by the AO due to a difference in the opinion of the assessee and the AO. The explanation given by the assessee is a plausible explanation. Further, the AO has not found the expenses to be not genuine or not bona fide. The nature of the disallowance does not appear as the case of concealment or furnishing inaccurate particulars of the claim.

The Hon Court observed that the ITAT on the facts has agreed with the CIT(A) that the assessee had made the claim in a transparent and befitting manner. In view of the conclusions arrived on facts, the ITAT agreed with the view of the CIT(A) that the assessee has not committed any default or filed any inaccurate particulars of income warranting imposition of penalty.

The Apex Court in Commissioner of Income Tax vs. Reliance Petroproducts Pvt Ltd (2010) 322 ITR 158(SC) has held that where assessee has furnished all the details of its expenditure as well as income in its return, which details, in themselves, were not found to be inaccurate nor could be viewed as concealment of income on its part, and where the AO has taken a particular view contrary to the view that assessee had, it would not attract any penalty under Section 271(1)(c) of the Act. The Apex Court held that if this contention of the Revenue is accepted, then in case of every return where the claim made is not accepted by the AO for any reason, the assessee will invite penalty under Section 271(1)(c).

Thus, the Department’s appeal was dismissed.

Section 148A and 151: Reassessment — Change of opinion — Tangible material — Reasons/ information cannot be substituted or modified

23 Hasmukh Estates Pvt. Ltd. vs.

Dy. ACIT – 1 (1)1, Mumbai

[W.P. No. 4574 of 2022, (Bom.) (HC)]

A.Y.: 2015–16

Date of Order: 8th November, 2023

Section 148A and 151: Reassessment — Change of opinion — Tangible material — Reasons/ information cannot be substituted or modified.

The Petitioner is a private company engaged in the business of undertaking real estate projects, selling a plot of land situated at Raigad District to one Regency Nirman Limited by a registered agreement to sell, dated 7th October, 2011, for consideration of Rs.18 Crores. The property was valued at Rs.16.50 Crores for the purpose of stamp duty. It was agreed between the Petitioner and the purchaser that in case the Petitioner was unable to discharge any obligation under the agreement, damages shall be settled. Thus, on non-fulfilment of some obligations on the part of Petitioner, the consideration was reduced by R6 Crores, making the consideration payable for the land at Rs.12 Crores. Petitioner e-filed its return of income on 31st March, 2017, declaring income of Rs.8,43,58,620 and booked profits under Section 115JB of the Act at Rs.9,72,27,472. An assessment order came to be passed on 26th December, 2017, accepting Petitioner’s figure of Rs.12 Crores. In the assessment order, the sale of this property and resultant capital gains were discussed. Namely, non-applicability of Section 50C of the Act.

Original notice under Section 148 of the Act was issued on 31st March, 2021, by the Assessing Officer (AO), and Petitioner filed a return of income raising objections against the reasons recorded. Thereafter, Petitioner received a communication dated 28th May, 2022, from the AO conveying that pursuant to the order of the Apex Court in the matter of Union of India vs. Ashish Agarwal, a copy of the approval under Section 151 of the Act and the reasons recorded prior to the issuance of notice under Section 148 of the Act were being forwarded to it. The Petitioner filed its objections to the letter dated 28th May, 2022 and explained its stand on the sale of the plot of land to Regency Nirman Limited. However, Respondent No.1-AO passed an order dated 29th July, 2022, under Section 148A(d) of the Act holding that the sale consideration offered was Rs.12 Crores, which was lesser than the stamp duty valuation of Rs.16.50 Crores, inviting applicability of Section 50C of the Act. The order was passed with prior approval of the PCCIT, Mumbai, followed by notice dated 30th July, 2022, under Section 148 of the Act.

The Hon Court observed that:

(a) The AO has dealt with the entire issue of long-term capital gains during the course of original assessment proceedings, including the fact of deduction of compensation / damages of an amount of Rs.6 Crores from the agreed consideration of Rs.18 Crores and the stamp valuation shown to be Rs.16.50 Crores.

(b) The AO clearly accepted the non-applicability of Section 50C of the Act to the transaction of sale while issuing the original assessment order.

(c) An audit memo dated 29th March, 2019, raised an objection regarding the applicability of Section 50C of the Act.

(d) The audit memo was raised by an internal audit of the Department and not by CAG as required by the provision which was in effect prior to the amendment which came into force w.e.f. 1st April, 2022, and applicable to the present case.

(e) The AO conveyed his objections to the audit memo, maintaining that the original assessment order was correct.

(f) The ACIT once again maintained its objections. This time, the said ACIT accepted that the AO did not properly examine the allowability of Rs.6 Crores expense under the long-term capital gains head. Hence, the audit objection was accepted, leading to reopening of the assessment of the income of the Petitioner.

(g) Relying upon the decision of the Apex Court in the matter of Union of India vs. Ashish Agarwal, the notice under Section 148 of the Act dated 21st April, 2021, issued under the old law was treated as notice under Section 148A(b) of the Act.

Thus, the admitted facts indicate that the basis on which the AO issued notice alleging that there was ‘information’ that suggests escapement of income was an internal audit objection. What information is explained in Section 148 of the Act to mean “any objection raised by the Comptroller and Auditor General of India…” and no one else. This itself makes the reopening of assessment in the present case impermissible.

Consequently, a view deviating from that which was already taken during the course of issuing the original assessment order is nothing but a ‘change of opinion’, which is impermissible under the provisions of the Act.

The fact that the notice was issued based on audit objections received by the AO also does not find a mention in the impugned notice. It is settled law that the reopening notice can be sustained only on the basis of the ground mentioned in the reasons recorded. It is not open to the revenue to add and / or supplement later the reasons recorded at the time of reopening notice.

The Hon. Court held that the information which formed the basis of reopening itself does not fall within the meaning of the term ‘information’ under the 1st Explanation to Section 148 of the Act, and hence, the reopening is not permissible as it clearly falls within the purview of a ‘change of opinion’, which is impermissible in law.

Revision u/s. 264 — Powers of Commissioner are not limited to correct an error committed by subordinate authorities but could even be exercised where errors are committed by the assessee — Assessee filed an applicationunder Section 154 and first time claimed indexcost of improvement being renovation expenses which was not claimed in original return of income

22 Pramod R. Agrawal vs. The Pr. CIT Circle – 5
[W.P. No. 2435 of 2017, (Bom.) (HC)]
A.Y.: 2007–08

Date of Order: 13th October, 2023

Revision u/s. 264 — Powers of Commissioner are not limited to correct an error committed by subordinate authorities but could even be exercised where errors are committed by the assessee — Assessee filed an application under Section 154 and first time claimed index cost of improvement being renovation expenses which was not claimed in original return of income.

The assessee, a resident individual, had sold a flat and offered the same as capital gain in the return of income without considering the allowance of indexed cost of improvement in respect of renovation expenses.

The Assessing Officer (AO) had made an addition under Section 50C by taking the stamp duty value as the full value of consideration while computing thecapital gains arising from the sale of said flat. No adjustment was made to the allowances claimed fromthe full value of consideration to determine the capital gains.

On appeal, the Commissioner confirmed the addition made by the AO by an order dated 13th July, 2013.

Thereafter, the assessee filed an application under Section 154 on 4th November, 2015, to rectify the previous orders passed by allowing the deduction of indexed cost of improvement of Rs.2.95 lakhs being renovation expenses incurred in the year 1990. It had claimed in the application that the allowance of the said cost was not claimed in the original return of income and the same should be allowed as it was a rectifiable defect under Section 154.

The ITO, however, rejected the application filed by the assessee on the ground that the claim was made the first time in the application under Section 154, and it was never brought to the notice earlier.

Aggrieved by the order of the ITO, the assessee had filed an application under Section 264, which was also rejected by an order dated 22nd March, 2017.

The Hon’ble Court observed that there was no delay in filing the application under Section 264 because the application under Section 264 was against the order passed under Section 154 and not Section 143(3). The order under Section 154 was passed on 8th December, 2015, and the application under Section 264 was filed on 18th January, 2016, within one year.

The Court further held that the proceedings under Section 264 are intended to meet a situation faced by an aggrieved assessee, who is unable to approach the Appellate Authorities for relief and has no other alternate remedy available under the Act. The Commissioner is bound to apply his mind to the question of whether the assessee was taxable on that income, and his powers are notlimited to correcting the error committed by thesubordinate authorities but could even be exercised where errors are committed by the assessee. It would even cover a situation where the assessee because of an error has not put forth a legitimate claim at the time of filing the return and the error is subsequently discovered and raised for the first time in an application under Section 264.

The Court referred and relied on the case of Asmita A. Damale vs. CIT Writ Petition No. 676 of 2014, dated 9th May, 2014, wherein the Court had held thatthe Commissioner while exercising revisionary powers under Section 264 has to ensure that there isrelief provided to the assessee where the law permits the same.

In the assessment order dated 30th December, 2010, passed under Section 143(3) in the case of Ravi R Agarwal, the other co-owner of the flat, theAO has accepted the amount of Rs. 2.95 lakhs as the cost of renovation of indexation. Therefore, this figure has to be accepted as correct and suitable allowance should be made while arriving at the long-term capital gain.

The impugned order dated 22nd March, 2017, was quashed, and the matter was remanded to the AO for denovo consideration.

S. 69B, 132 – Additions to total income not sustainable when no incriminating material was found during the search. S. 153A, 153C – Additions based on documents found during a search on a third party to be made under section 153C and not 153A of the Act

45 ACIT vs. Atul Kumar Gupta (Delhi – Trib.)

[2023] 103 ITR(T) 13 (Delhi – Trib.)

ITA No.: 1164 and 1931 (Delhi) of 2020 and 205, 206 & 1395 (Delhi) of 2021

A.Ys.: 2011-12, 2014-15 to 2016-17

Date of Order: 13th March, 2023

S. 69B, 132 – Additions to total income not sustainable when no incriminating material was found during the search.

S. 153A, 153C – Additions based on documents found during a search on a third party to be made under section 153C and not 153A of the Act.

FACTS

A search was conducted by income tax authorities in a group case inter alia including the assessee. It was contended that the assessee had purchased shares of some companies at a price which was less than book value and, therefore, the difference between book value and purchase price represented unaccounted investment was added to the total income under section 69B of the Act.

Further, certain additions were made to the total income of the assessee based on ledger accounts found in the course of a third-party search.

Aggrieved, the assessee filed an appeal before CIT(A). The CIT(A) ruled in favour of the assessee and deleted both the additions on the basis that no incriminating material was found during the search to make the impugned addition. CIT(A) further observed that there was no reference to any document that was suggestive of any undisclosed income as a result of the purchase of shares.

Aggrieved, the Revenue, filed an appeal before the ITAT.

HELD

The ITAT observed that the CIT(A) has passed a well-reasoned order appreciating the material on record. The basis for addition as stated by the Assessing Officer was incriminating material found during the search and post search enquiry. However, no material or documents or any other details were specifically indicated or provided by the Assessing officer.

The ITAT further observed that merely stating that seized materials are there and post-search enquiry has shown that the purchase prices have been suppressed, cannot be the basis of addition.

The ITAT thus concurred with the findings of the CIT(A) on the first aspect.

On the next aspect of additions based on ledger accounts found in the course of a third-party search, the ITAT observed that no addition can be made de hors the material found during the search. When a separate independent search was not conducted on the assessee and additions are sought to be made based on ledger accounts found in the course of third-party search, the same have to be made under section 153C of the Act and not under section 153A of the Act.

Accordingly, the ITAT deleted the addition on the second aspect.

The ITAT relied on multiple judicial decisions inter alia includingK.P. Varghese vs. ITO [1981] 131 ITR 597 (SC), CIT vs. Kabul Chawla [2015] 380 ITR 573 (Delhi), CIT vs. Gulshan Kumar [2002] 257 ITR 703 (Delhi), CIT vs. Naresh Khattar HUF [2023] 261 ITR 664 (Delhi) and Pr. CIT vs. SMC Power Generation Ltd.[IT Appeal No. 406 of 2019, dated 23rd July, 2019]

S. 271(1)(c) — Penalty levied without any independent and specific finding being recorded as to how disallowance made by the Assessing Officer (AO) which was upheld by the Tribunal, would lead to a charge of furnishing of inaccurate particulars of income by the assessee, was unjustified and to be deleted

44 ISGEC Heavy Engineering Ltd. vs. ITO

[2023] 103 ITR(T) 152 (Chandigarh – Trib.)

ITA No.: 577 (CHH) OF 2022

A.Y.: 2014-15

Date of Order: 13th March, 2023

S. 271(1)(c) — Penalty levied without any independent and specific finding being recorded as to how disallowance made by the Assessing Officer (AO) which was upheld by the Tribunal, would lead to a charge of furnishing of inaccurate particulars of income by the assessee, was unjustified and to be deleted.

FACTS

The assessee-company’s case was selected for scrutiny proceedings and an assessment order under section 143(3) was passed on 30th December, 2016 making various additions. Thereafter, the AO had passed a rectification order u/s 154 wherein the AO had reduced the addition made u/s 14A r.w. Rule 8D from Rs1,42,26,765 to Rs.63,21,654. On appeal before CIT(A), all the additions were deleted except for the addition made u/s 14A r.w. Rule 8D. On further appeal before the Tribunal, the addition u/s 14A r.w. Rule 8D was restricted to an amount of Rs.5,00,000 on an estimated and lump sum basis.

The AO had initiated penalty proceedings u/s 271(1)(c) vide show cause notice dated 30th December, 2016 and 10th June, 2021. Without taking into account, the reply of the assessee company, the AO passed the order u/s 271(1)(c) and levied a penalty of Rs.1,54,500 on restricted addition of Rs.5,00,000 holding that the assessee had furnished inaccurate particulars of income.

Aggrieved, the assessee company filed an appeal before CIT(A). The CIT(A) confirmed the penalty levied without assigning any reasons.

Aggrieved, the assessee company filed an appeal before the ITAT.

HELD

The ITAT observed that the AO had levied the penalty merely on the basis of the addition of Rs.5,00,000 in the quantum proceedings. The ITAT observed that there was no independent and specific finding which had been recorded by the AO, as to why he was of the belief that the charge of furnished inaccurate particulars of income can be fastened on the assessee company and the reasons for arriving at such a finding given that penalty provisions have to be strictly construed.

The ITAT held that it is a settled legal proposition that the quantum and penalty proceedings are independent proceedings. Though the initiation of penalty proceedings happens during the course of assessment proceedings and has to be evident and emerge from the assessment order, before the penalty is fastened on the assessee, the AO has to record independent finding justifying the charge of furnishing of inaccurate particulars of income or for concealment of particulars of income.

The ITAT further held that before the AO proceeded to calculate the disallowance under Rule 8D(2)(iii), he was supposed to consider the assessee company’s submission and examine the accounts of the assessee company. The AO had to record his reasoning that he was not satisfied with the submissions of the assessee company, but no such exercise was done by the AO.

The ITAT following the decision of the Hon’ble Supreme Court in the case of CIT vs. Reliance Petro Products (P.) Ltd. [2010] 189 Taxman 322/322 ITR 158directed to delete the penalty levied u/s 271(1)(c) and allowed the appeal.

When income is offered for taxation under the head ‘Income from House Property’ but the income is assessed under the head ‘profits and gains of business or profession’ it cannot be said that the assessee has suppressed or under-reported any income. Where the assessee offered an explanation as to why it reported rental income under the head ‘income from house property’ and the explanation of the assessee was not found to be false, the case would be covered by s. 270A(6)(a)

43 D.C. POLYESTER LIMITED vs. DCIT

2023 (10) TMI 971 – ITAT MUMBAI

A.Y.: 2017-18        

Date of Order: 17th October, 2023

Section: 270A

When income is offered for taxation under the head ‘Income from House Property’ but the income is assessed under the head ‘profits and gains of business or profession’ it cannot be said that the assessee has suppressed or under-reported any income.

Where the assessee offered an explanation as to why it reported rental income under the head ‘income from house property’ and the explanation of the assessee was not found to be false, the case would be covered by s. 270A(6)(a).

FACTS

The assessee filed its return of income declaring total income to be a loss of Rs.72,200. In the course of assessment proceedings, the Assessing Officer (AO) noticed that the assessee has offered rental income of Rs.29,60,000 under the head ‘income from house property’. The AO noticed that the assessee had declared the rental income from the very same property under the head ‘income from business’ in an earlier year, i.e., in A.Y. 2013-14. However, in the instant year, the assessee has declared rental income under the head ‘income from house property’ and also claimed various other expenses against its business income. He further noticed that there was no business income during the year under consideration.

The assessee submitted that it has reduced its business substantially and all the expenses claimed in the profit and loss accounts are related to the business only. It was submitted that the rental income was rightly offered under the head ‘income from house property’ during the year under consideration. In the alternative, the assessee submitted that it will not object to assessing rental income under the head ‘income from business’. Accordingly, the AO assessed the rental income under the head ‘income from business’.

The AO assessed rental income under the head `business’ and consequently the assessee was not entitled to deduction under section 24(a) of the Act. This resulted in assessed income being greater than returned income.

The AO initiated proceedings for the levy of penalty under s. 270A. In the course of penalty proceedings, it was submitted that the assessee has not under-reported the income since the addition pertains only to statutory deduction under section 24(a). The AO held that the furnishing of inaccurate particulars of income would have gone undetected, if the return of income of the assessee was not taken up for scrutiny. He also took the view that the claim of statutory deduction as well as expenses in the Profit and Loss account under two different heads of income would tantamount to under-reporting of income under section 270A of the Act. The AO levied a penalty of Rs.1,83,550 under section 270A of the Act.

Aggrieved, the assessee preferred an appeal to the CIT(A) who confirmed the action of the AO.

Aggrieved, the assessee preferred an appeal to the Tribunal.

HELD

The Tribunal observed that since section 270A of the Act uses the expression “the Assessing Officer ‘may direct” — there is merit in the contention of the assessee that levying of penalty is not automatic and discretion is given to the AO not to initiate penalty proceedings under section 270A of the Act.

It held that it is not a case that the assessee has suppressed or under-reported any income. The addition came to be made to the total income returned by the assessee, due to a change in the head of income, i.e., the addition has arisen on account of computational methodology prescribed in the Act. It held that, in its view, this kind of addition will not give rise to under-reporting of income. The Tribunal was of the view that the AO should have exercised its discretion not to initiate penalty proceedings u/s 270A of the Act in the facts and circumstances of the case.

The Tribunal observed that the assessee has offered an explanation as to why it reported the rental income under the head Income from House property and the said explanation is not found to be false. Accordingly, it held that the case of the assessee is covered by clause (a) of sub. sec. (6) of sec. 270A of the Act. The Chennai bench of the Tribunal has held in the case of S Saroja (supra) that if a bona fide mistake is committed while computing total income, the penalty u/s 270A of the Act should not be levied.

The Tribunal deleted the penalty levied under section 270A of the Act.

The rate of tax mentioned in s. 115BBE does not apply to income surrendered in the course of the search, in a statement made under section 132(4), and the Department has no dispute with regard to the explanation of the assessee regarding the source of the surrendered income

42 DCIT vs. Tapesh Tyagi

TS-642-ITAT-2023 (DEL)

A.Y.: 2017-18

Date of Order: 27th October, 2023

Sections: 69A, 132, 115BBE

The rate of tax mentioned in s. 115BBE does not apply to income surrendered in the course of the search, in a statement made under section 132(4), and the Department has no dispute with regard to the explanation of the assessee regarding the source of the surrendered income.

FACTS

In the course of search action on the assessee, an individual, a loose paper was found in the possession of the assessee with an amount Rs.30.20 mentioned with the description “Com Trade”. In the statement recorded under section 132(4) of the Act, when the assessee was confronted with the said paper, the assessee submitted that it indicates profit earned by him from “Commodity Trade”. This amount was surrendered as an income in the statement recorded. This amount was also offered for taxation in the return of income filed by the assessee subsequent to the search. However, tax on this amount was paid at a normal rate and not at the rate mentioned in section 115BBE.

According to the Assessing Officer (AO), income surrendered by the assessee is in the nature of unexplained money in terms of section 69A of the Act. Though he did not make any separate addition of the said amount in the assessment order, he treated it as income under Section 69A of the Act. However, he did not make any change to the tax rate applied by the assessee. Subsequently, the AO passed an order under Section 154 of the Act, wherein, he applied the rate of tax as prescribed under Section 115BBE of the Act.

Aggrieved with the higher rate of tax being levied, the assessee preferred an appeal to the CIT(A) who held that the income subjected to tax at the rate prescribed under Section 115BBE of the Act cannot be treated as income of the nature provided under Section 69A of the Act. Hence, a normal tax rate would be applicable to such income. The CIT(A) allowed the appeal filed by the assessee.

Aggrieved, revenue preferred an appeal to the Tribunal.

HELD

The Tribunal observed that the short issue arising for consideration is whether a special rate of tax provided under Section 115BBE of the Act would be applicable to the income surrendered by the assessee in the course of search and seizure operation and offered in the return of income.

The Tribunal held that the facts clearly establish that at the time of the search and seizure operation itself, the assessee has explained the source of the amount offered as income to be the profit derived from “commodity trade”, which is in the nature of business income. It observed that It also appears that the departmental authorities have no dispute with regard to the explanation of the assessee regarding the source of the surrendered income.

As rightly observed by the learned First Appellate Authority, section 69A uses the word “may”, which implies that if the explanation offered by the assessee regarding the source of money, bullion, jewellery or other valuable articles is satisfactory, it cannot be treated as unexplained money under Section 69A of the Act. In the facts of the present appeal, there is nothing on record to suggest that the assessee’s explanation regarding the source of the income offered has either been doubted or disputed at the time of the search and seizure operation or even during the assessment proceedings. Therefore, in our view, the income offered by the assessee cannot be treated as unexplained money under Section 69A of the Act. Therefore, as a natural corollary, section 115BBE of the Act would not be applicable.

The Tribunal observed that in the facts of the present appeal, admittedly, the assessee has not offered the income under Section 69A of the Act. It observedthat even, the AO has not made any separate additionunder Section 69A of the Act but has merely re-characterized the nature of income offered by the assessee. The Tribunal held that the provisions of sections 115BBE would not be applicable to the facts of the present appeal.

The Tribunal dismissed the appeal filed by the Revenue.

Where the assessee sold flats at varied rates and the variation in rate was significant, Revenue directed to apply the weighted average rate of all the units for estimating the value of sales (except for one unit which is incomparable) and thus, to be valued at actual instead of the maximum rate applied by the Revenue to estimate sale value of the flats sold at varied rates by the assessee

41 DCIT vs. Mighty Construction Pvt. Ltd.

TS-522-ITAT-2023 (Mum)

A.Ys.: 2011-12 to 2013-14    

Date of Order: 25th August, 2023

Section: 28

Where the assessee sold flats at varied rates and the variation in rate was significant, Revenue directed to apply the weighted average rate of all the units for estimating the value of sales (except for one unit which is incomparable) and thus, to be valued at actual instead of the maximum rate applied by the Revenue to estimate sale value of the flats sold at varied rates by the assessee.

FACTS

The assessee, a builder and developer, constructed a building known as `Universal Majestic’. During the assessment year 2011-12, the AO noticed that the flats in this building have been sold at varied rates ranging from Rs.13,513 per sq. feet to Rs.27,951 per sq. feet. He noted the comparable sale instances in the assessment order.

In the reply to the show cause notice, the assessee gave various factors and reasons for the variation in the prices for example, firstly, some units had additional flower bed area; secondly, due to various Vaastu angles and passage for the flat which commanded different prices; thirdly, certain units had additional areas like store room, flower bed and passage area, and lastly, some of the units had no natural ventilation and due to certain market conditions also, the price bookings and rates are varied. Apart from that, it was also submitted that the project was off-location and no good development and construction in the surrounding area was there during that period and it was covered with slums all around the building premises.

The Assessing Officer (AO) rejected all the contentions after giving his detailed reasoning stating that, firstly, the project was centrally located and directly accessible to Eastern Express Highway and easily accessible from Mumbai International Airport and Domestic Airport, and newly built freeway flyovers have come connecting to various important places. Apart from that, he also rebutted the assessee’s contention of the additional flower bed area and passage area on the grounds that as per the Municipal rules, a builder can only sell areas as per the approved plans, and any encroachment done on the flower bed or any alteration without the permission of the Municipal authorities is not permissible and the passage area is only common area property for the society wherein nobody can encroach. Regarding the Vaastu factor also, he has given his detailed analysis by bringing in certain comparable instances of the flats sold by the assessee itself. Thus, he held that the justifications and the submissions given by the assessee to prove the variation in the rates are only an afterthought.

The AO held that the rate per sq. ft should be Rs.27,951, this being the highest rate per sq. ft, as of 31st August, 2010, since most of the other bookings were somewhere close to this date and accordingly, he worked out the sale cost of each unit. The AO added a sum of Rs.46,75,48,737 to the returned total income on this account.

Aggrieved, the assessee preferred an appeal to the CIT(A) who allowed the appeal filed by the assessee.

Aggrieved, revenue preferred an appeal to the Tribunal.

HELD

The Tribunal observed that a huge variation in the sale price of different units of the same project was not found to be justifiable by the AO. The AO has rebutted the explanation given by the assessee but the CIT(A) without much factual analysis has deleted the addition made by the AO.

The Tribunal held that though there could be some variation in the rates per unit depending upon various factors which cannot be brushed aside, but to accept that there would be such huge variation is beyond any prudence and reality. Thus, such a huge difference is certainly not justified and even the action of the AO to take the maximum rate of units sold is also not justified. Because factors like total area, extra accessible and useable area of particular unit and location and ventilation of the unit etc., do have variation in the price and the premium paid. Therefore, it would be very difficult to apply any kind of logic to accept the version of both assessee as well as AO.

The Tribunal asked the AR to submit a weighted average rate at which the flats were sold and noted that the weighted average rate comes to Rs.17,712 per sq. feet. It found that there is one unit which is a shop cum garage and definitely it cannot be compared with other units where the agreement rate was very low and therefore, the same rate of Rs.17,172 cannot be applied. The Tribunal held that in the weighted average, this particular unit sold would be excluded  while calculating the weighted average, and the actual price should be taken, and for all other 12 units, the rate for estimating the sales to be taken at Rs.17,172. The Tribunal directed the AO to work out the consequential relief.

Glimpses of Supreme Court Rulings

51 Principal Commissioner of Income Tax vs. Krishak Bharti Cooperative Ltd. (2023) 458 ITR 190 (SC)
Double Taxation Avoidance — Assessee was entitled to credit for the tax, which would have been payable in Oman even though a dividend, being an incentive in Oman to promote development in that country, was exempt in Oman — DTAA between India and Oman, Article 25.

The Assessee, a multi-State Co-operative Society, is registered in India under the administrative control of the Department of Fertilizers, Ministry of Agriculture and Co-operation, Government of India. In the course of its business of manufacturing fertilisers, it entered into a joint venture with Oman Oil Company to form the Oman Fertilizer Company SAOC (for short ‘OMIFCO’ or ‘the JV’), a registered company in Oman under the Omani laws. The Assessee has a 25 per cent share in the JV. The JV manufactures fertilizers, which are purchased by the Central Government. The Assessee has a branch office in Oman which is independently registered as a company under the Omani laws having permanent establishment status in Oman in terms of Article 25 of the DTAA. The branch office maintains its own books of account and submits returns of income under the Omani income tax laws.The assessment for the relevant year was completed under Section 143(3) of the Income Tax Act, 1961 (‘the Act’). The Assessing Officer allowed a tax credit in respect of the dividend income received by the Assessee from the JV. The dividend income was simultaneously brought to the charge of tax in the assessment as per the Indian tax laws. However, under the Omani tax laws, exemption was granted to the dividend income by virtue of the amendments made in the Omani tax laws w.e.f. the year 2000.

The Assessing Officer allowed credit for the said tax, which would have been payable in Oman, but for which exemption was granted.

Thereafter, the Principal Commissioner of Income Tax (‘PCIT’) issued a show cause notice under Section 263 of the Act on the ground that the reliance placed on Article 25(4) of DTAA was erroneous in this case, and no tax credit was due to the Assessee under Section 90 of the Act. This notice was duly replied to by the Assessee. However, the PCIT rejected all the contentions raised by the Assessee inter alia holding that Article 25 of Omani tax laws was not applicable in the instant case because there was no tax payable on dividend in Oman and, accordingly, no tax has been paid and that Assessee was not covered under the exemption.

Questioning the order of PCIT, the Assessee preferred an appeal before the Income Tax Appellate Tribunal (‘ITAT’), which allowed the appeal holding that the order passed by the PCIT under Section 263 of the Act was without jurisdiction and was not sustainable in law.

The order passed by the ITAT was challenged before the Delhi High Court by preferring an Income Tax Appeal, which had been dismissed by the High Court by the impugned judgment holding that as per the relevant terms of the DTAA between India and Oman, the Assessee was entitled to claim the tax credit, which had been rightly allowed by the Assessing Officer.

On further appeal by the Revenue, the Supreme Court noted that Article 25 (2) of the DTAA provides that where a resident of India derives income, which in accordance with this agreement, may be taxed in the Sultanate of Oman, India shall allow as a deduction from the tax on the income of that resident an amount equal to the income tax paid in the Sultanate of Oman, whether directly or by deduction. Article 25(4) clarifies that the tax payable in a Contracting State mentioned in Clause 2 and Clause 3 of the said Article shall be deemed to include the tax which would have been payable but for the tax incentive granted under the laws of the Contracting State and which are designed to promote development.

The Supreme Court noted that the revenue was relying upon Article 11 which provides that dividends paid by a company which is a resident of a Contracting State to a resident of the other Contracting State may be taxed in that other Contracting State. Thus, according to the revenue, the dividend received by the Assessee was taxable in India and was not exempt because the same was not designed as a tax incentive in Oman to promote development in that country. In the same manner, it was argued that the letter issued by the Secretary General for Taxation, Ministry of Finance, Oman was not issued by the competent Omani authority and has no statutory force.

The Supreme Court observed that the term ‘incentive’ is neither defined in the Omani Tax Laws nor in the Income Tax Act, 1961. Faced with this situation, the JV addressed a letter in November, 2000 to Oman Oil Company seeking clarification regarding the purpose of Article 8(bis) of the Omani Tax Laws. The clarification letter dated 11th December, 2000, was addressed by the Secretary General for Taxation, Sultanate of Oman, Ministry of Finance, Muscat to Oman Oil Company SAOC.

The Supreme Court noted that the said letter of the Omani Finance Ministry clarified that the dividend distributed by all companies, including the tax-exempt companies would be exempt from payment of income tax in the hands of the recipients. By extending the facility of exemption, the Government of Oman intends to achieve its objective of promoting development within Oman by attracting investments. Since the Assessee had invested in the project by setting up a permanent establishment in Oman, as the JV was registered as a separate company under the Omani laws, it was aiding in promoting the economic development within Oman and achieving the object of Article 8 (bis). The Omani Finance Ministry concluded by saying that tax would be payable on dividend income earned by the permanent establishments of the Indian Investors, as it would form part of their gross income under Article 8, if not for the tax exemption provided under Article 8(bis).

According to the Supreme Court, a plain reading ofArticle 8 and Article 8(bis) would manifest that underArticle 8, dividend is taxable, whereas, Article 8(bis) exempts dividend received by a company from its ownership of shares, portions, or shareholding in the share capital in any other company. Thus, Article 8(bis) exempts dividend tax received by the Assessee from its PE in Oman and by virtue of Article 25, the Assessee was entitled to the same tax treatment in India as it received in Oman.

Insofar as the argument concerning the Assessee not having PE in Oman, the Supreme Court noted that from the year 2002 to 2006, a common order was made under Article 26(2) of the Income Tax Law of Oman. The High Court had extracted the opening portion of the above order. From the said letter it was apparent that the Assessee’s establishment in Oman had been treated as PE from the very inception up to the year 2011. According to the Supreme Court, there was no reason as to why all of a sudden, the Assessee’s establishment in Oman would not be treated as PE when for about 10 years it was so treated, and that the tax exemption was therefore granted based upon the provisions contained in Article 25 read with Article 8(bis) of the Omani Tax Laws.

The Supreme Court also dealt with the contention raised by the Appellant to the effect that the letter dated 11th December, 2000, issued by the Secretary General for Taxation, Ministry of Finance, Sultanate of Oman had no statutory force as per Omani Tax Laws, hence, the same could not be relied upon to claim exemption. The Supreme Court was of the view that the above letter was only a clarificatory communication interpreting the provisions contained in Article 8 and Article 8(bis) of the Omani Tax Laws. The letter itself did not introduce any new provision in the Omani Tax Laws. In this view of the matter, the Supreme Court was not convinced that the argument raised by the Appellant would lead it to deny exemption to the Assessee.

The Supreme Court concluded that the Appellant had not been able to demonstrate as to why the provisions contained in Article 25 of DTAA and Article 8(bis) of the Omani Tax Laws would not be applicable and, consequently, it held that the appeals had no substance and therefore dismissed.

52 Kerala State Co-operative Agricultural and Rural Development Bank Ltd. vs. The Assessing Officer, Trivandrum and Ors. (2023) 458 ITR 384 (SC)

Deduction in respect of income of co-operative societies — Section 80P — If a co-operative society is not a co-operative bank, then such an entity would be entitled to deduction under Sub-section (2) of Section 80P of the Act but on the other hand, if it is a co-operative bank within the meaning of Section 56 of Banking Regulation Act, 1949 read with the provisions of NABARD Act, 1981 then it would not be entitled to the benefit of deduction in view of Sub-section (4) of Section 80P of the Act.

The Appellant / Assessee, a State-level Agricultural and Rural Development Bank was governed as a co-operative society under the Kerala Co-operative Societies Act, 1969 (“State Act, 1969”) and is engaged in providing credit facilities to its members who are co-operative societies only.

The Kerala State Co-Operative Agricultural Development Banks Act, 1984 (“State Act, 1984”) was passed ‘to facilitate the more efficient working of Co-operative “Agricultural and Rural Development Banks” in the State of Kerala.’

On 27th October, 2007, the Appellant / Assessee filedits Return of Income for the Assessment Year 2007-08 of Rs.27,18,052 claiming deduction under Section 80P(2)(a)(i) of the Act.

Upon scrutiny, on 22nd December, 2009, an Assessment Order under Section 143(3) of the Act, was passed by the Assessing Officer for the Assessment Year 2007-08, disallowing the deduction of Rs.36,39,87,058 under Section 80P(2)(a)(i) holding that the Appellant / Assessee was neither a primary agricultural credit society nor a primary co-operative agricultural and rural development bank. The Assessing Officer held the Appellant / Assessee was a “co-operative bank” and thus, was hit by the provisions of Section 80(P)(4) and was not entitled to the benefit of Section 80(P)(2) of the Act. The total income was assessed at Rs.36,69,47,233.

Aggrieved by the Assessment Order dated 27th December, 2009, the Appellant / Assessee filed an appeal before the Commissioner of Income Tax (Appeals) (“CIT(A)”).

The CIT(A) vide Order dated 30th July, 2010 confirmed the disallowance made by the Assessing Officer. The CIT (A) was of the view that the Appellant / Assessee was actively playing the role of a development bank in the State and was no longer a land mortgage bank but was a development bank. CIT(A) further observed that with the insertion of Section 80P(4), co-operative banks are placed at par with other commercial banks and the Appellant / Assessee who was in the business of banking through its primary co-operative banks was definitely a co-operative bank within the meaning of Section 80P(4). Consequently, the appeal was dismissed.

Being aggrieved by the Order passed by CIT(A), the Appellant / Assessee filed a further appeal before the Income Tax Appellate Tribunal (“ITAT”).

The ITAT vide Order dated 23rd February, 2011, partly allowed the appeal. The ITAT held that the Appellant / Assessee was a co-operative bank and was not a primary agricultural credit society or a primary co-operative agricultural and rural development bank. Hence, it was consequently hit by the provision of Section 80P(4) and thus, the deduction claimed was rightly denied. However, the ITAT clarified that to the extent that the Appellant / Assessee was acting as a State Land Development Bank which fell within the purview of the National Bank for Agriculture and Rural Development Act, 1981 (“NABARD Act, 1981”,) and was eligible for financial assistance from NABARD, the Appellant / Assessee’s claim merited acceptance and it would be entitled to deduction under Section 80P(2)(a)(i) on the income relatable to its lending activities as such a bank.

Aggrieved by the Order passed by the ITAT in only partly allowing its appeal, the Appellant / Assessee preferred an appeal against the ITAT’s Order dated 23rd February, 2011. The issue raised by the Appellant / Assessee was with respect to the ITAT’s finding that the Appellant / Assessee was neither a primary agricultural credit society nor a primary co-operative agricultural and rural development bank, hence, not entitled to the exemption of its income under Section 80P(2)(a)(i) of the Act.

On 26th November, 2015, the Kerala High Court dismissed the Assessee’s Appeal, holding that the ITAT’s findings did not warrant any interference as the case did not involve any substantial question of law.

Against the judgment dated 26th November, 2015, the Appellant / Assessee preferred a Special Leave Petition (C) bearing No. 2737 of 2016. The Supreme Court vide Order dated 1st February, 2016, issued notice and granted a stay of recovery of demand made by the Income Tax Authorities from the Appellant / Assessee for the A.Y. 2007-08.

The Supreme Court observed that Section 80P speaks about deduction in respect of income of co-operative societies from the gross total income referred to in Sub-section (2) of the said Section. From the said income, there shall be deducted, in accordance with the provisions of Section 80P, sums specified in Sub-section (2), in computing the total income of the Assessee for the purpose of payment of income tax. Sub-section (2) of Section 80P enumerates various kinds of co-operative societies. Sub-section (2)(a)(i) states that if a co-operative society is engaged in carrying on the business of banking or providing credit facilities to its members, the whole of the amount of profits and gains of business attributable to any one or more of such activities shall be deducted. The Sub-section makes a clear distinction between the business of banking on the one hand and providing credit facilities to its members by co-operative society on the other.

The Supreme Court noted that while Section 80P was inserted into the Act with effect from 1st April, 1968, however, Sub-section (4) was reinserted with effect from 1st April, 2007, in the present form. Earlier Sub-section (4) was omitted with effect from 1st April, 1970.

The Supreme Court noted the objects and reasons for the insertion of sub-section (4) to Section 80P of the Act by referring to the speech of the Finance Minister dated 28th February, 2006, CBDT Circular dated 28th December, 2006, containing explanatory notes on provisions contained in the Finance Act, 2006 and clarification by the CBDT, in a letter dated 9th May, 2008, and observed that the limited object of Section 80-P(4) was to exclude co-operative banks that function on a par with other commercial banks i.e. which lend money to members of the public.

The Supreme Court noted that a co-operative bank is defined in Section 56 (c)(i)(cci) of the Banking Regulation Act, 1949 to be a state co-operative bank, a central co-operative bank and a primary co-operative bank and central co-operative bank and state co-operative bank to have the same meanings as under the NABARD Act, 1981.

The Supreme Court further noted that Section 2(d) of NABARD Act, 1981 defines central co-operative bank while Section 2(u) defines a state co-operative bank to mean the principal co-operative society in a State, the primary object of which is financing of other co-operative societies in the State, which means it is in the nature of an apex co-operative bank having regard to the definition under Section 56 of the Banking Regulation Act, 1949, in relation to co-operative bank. The proviso states that in addition to such principal society in a State, or where there is no such principal society in a State, the State Government may declare any one or more co-operative societies carrying on the business of banking in that State to be also or to be a state co-operative bank or state co-operative banks within the meaning of the definition. Section 2(v) of NABARD Act, 1981 defines a state land development bank to mean the co-operative society which is the principal land development bank (by whatever name called) in a State and which has as its primary object the providing of long-term finance for agricultural development.

The Supreme Court also noted that as per Clause (c) of Section 5 of the Banking Regulation Act, 1949, a banking company is defined as any company which transacts the business of banking in India. Clause (b) of Section 5 of the Banking Regulation Act, 1949 defines banking business to mean the accepting, for the purpose of lending or investment, of deposits of money from the public, repayable on demand or otherwise, and withdrawal by cheque, draft, order or otherwise. Thus, it is only when a co-operative society is conducting banking business in terms of the definition referred to above that it becomes a co-operative bank. In such a case, Section 22 of the Banking Regulation Act, 1949 would apply wherein it would require a licence to run a co-operative bank. In other words, if a co-operative society is not conducting the business of banking as defined in Clause (b) of Section 5 of the Banking Regulation Act, 1949, it would not be a co-operative bank and not so within the meanings of a state co-operative bank, a central co-operative bank or a primary co-operative bank in terms of Section 56(c)(i)(cci).

According to the Supreme Court, if a co-operative society is not a co-operative bank, then such an entity would be entitled to deduction under Sub-section (2) of Section 80P of the Act but on the other hand, if it is a co-operative bank within the meaning of Section 56 of Banking Regulation Act, 1949 read with the provisions of NABARD Act, 1981 then it would not be entitled to the benefit of deduction in view of Sub-section (4) of Section 80P of the Act.

According to the Supreme Court, a co-operative society which is not a state co-operative bank within the meaning of the NABARD Act, 1981 would not be a co-operative bank within the meaning of Section 56 of the Banking Regulation Act, 1949. In the instant case, in A.P. Varghese vs. The Kerala State Co-operative Bank Ltd. reported in AIR 2008 Ker 91, the Kerala State Co-operative Bank being declared as a state co-operative bank by the Kerala State Government in terms of NABARD Act, 1981 and the Appellant society not being so declared, would imply that the Appellant society was not a state co-operative bank.

The Supreme Court thus concluded that although the Appellant society was an apex co-operative society within the meaning of the State Act, 1984, it was not a co-operative bank within the meaning of Section 5(b) read with Section 56 of the Banking Regulation Act, 1949. The Appellant was thus not a co-operative bank within the meaning of Sub-section (4) of Section 80P of the Act. The Appellant was a co-operative credit society under Section 80P(2)(a)(i) of the Act whose primary object was to provide financial accommodation to its members who were all other co-operative societies and not members of the public. Consequently, the Appellant was entitled to the benefit of deduction under Section 80P of the Act.

‘Only Source of Income’ For S. 80-IA/80IB and Other Provisions

ISSUE UNDER CONSIDERATION
A deduction in respect of profits and gains from industrial undertakings or enterprises engaged in infrastructure development is conferred vide s. 80-IA for varied periods at the specified percentage of profit, subject to compliance with several conditions specified in s. 80-IA of the Income Tax Act, 1961. One of the important conditions is provided by sub-section (5) of s. 80-IA, which overrides the other provisions of the Act, requiring an assessee to determine the quantum of deduction to be computed as if the qualifying business is the only source of income.The said provision of s. 80-IA (5) reads as under;

‘Notwithstanding anything contained in any other provision of this Act, the profits and gains of an eligible business to which the provisions of sub-section (1) apply shall, for the purposes of determining the quantum of deduction under that sub-section for the assessment year immediately succeeding the initial assessment year or any subsequent assessment year, be computed as if such eligible business were the only source of incomeof the assessee during the previous year relevant to the initial assessment year and to every subsequent assessment year up to and including the assessment year for which the determination is to be made.’

A similar condition is prescribed in a few other provisions of Chapter VIA of the Act, and was also found in some of the provisions now omitted from the Act. Like any other deduction, the benefit of deduction here is subject to compliance with the conditions and the ceilings of s. 80A to 80B of the Act. The computation of the quantum of the ‘only source of income’ has become a major issue that has been before the courts for quite some time. The Delhi, Rajasthan and Madras High Courts have taken a view that, in computing the only source of income, the losses of the preceding previous years relating to the same source should not be set off and adjusted or reduced from the income of the year, where such losses are otherwise absorbed in the preceding previous years. In contrast, the Karnataka High Court has taken a contrary view, holding that such losses, even though absorbed, should be notionally brought forward for computing the quantum of deduction for the year under consideration.

MICROLAB’S CASE

The issue had come up for consideration of the Karnataka High Court in the case of Microlabs Limited vs. ACIT, 230 Taxman 647. In that case, the assessee was engaged in the business of running an industrial undertaking and had derived profit from such business for the year under consideration. The losses remaining to be absorbed of the preceding previous years of such business were absorbed against the other income of the immediately preceding previous year. Accordingly, in computing the quantum of deduction under s. 80-IA for the year under consideration, the assessee company had claimed a deduction in respect of the entire profit of the year of such business. The AO however had reduced the quantum of deduction by the amount of losses of the preceding previous years that were absorbed and adjusted in computing the deduction for the immediately preceding previous year. The action of the AO was upheld by the tribunal.Aggrieved by the action of the AO and the tribunal, the assessee company had raised the following substantial question of law for consideration of the High Court;

“Whether in law, the Tribunal is justified in holding that in view of provision of Section 80-IA(5) of the Income Tax Act, the profit from the eligible business for the purpose of deduction under Section 80-IB of the Act has to be computed after deduction of notional brought forward losses of eligible business even though they have been allowed to set off against other income in the earlier years?”

On behalf of the assessee company, relying on the decision of the Madras High Court in the case of Velayudhaswamy Spinning Mills (P) Ltd. vs. ACIT, 340 ITR 477, it was contended that, once the set-off of losses had taken place in an earlier year against the other income of the assessee, such losses could not be notionally brought forward and set-off against the income of the eligible business for the year in computing deduction under s. 80-IA of the Act.

In contrast, the Revenue, relying on the decision of the Special Bench of the tribunal in the case of ACIT vs.Goldmine Shares and Finance (P) Ltd., 113 ITD 209 (Ahd.), contended that the non-obstante clause in sub-section (5) had the effect of overriding all the provisions of the Act, and therefore the other provisions of the act were to be ignored in computing the deduction for the year. As a consequence, the losses already set off against the other income of the immediately preceding previous year were to be brought forward notionally, and again set off against the profit of the year.

The Karnataka High Court, in deciding the substantial question of law in favour of the Revenue and against the assessee, followed the view taken by the special bench of the tribunal to hold that the losses absorbed in the past should be notionally brought forward to reduce the profit for the year while computing the deduction u/s. 80-IA of the Act.

STERLING AGRO INDUSTRIES’ CASE

Recently the issue again arose before the Delhi High Court in the case of Pr CITvs.Sterling Agro Industries Ltd. 455 ITR 65. In this case, the assessee company had returned an income of Rs.22.12 crore after claiming deduction u/s. 80-IA. On assessment, the AO disallowed the claim of Rs.12.63 crore, by applying the provisions of s. 80-IA(5) of the Act. On appeal to the tribunal, the claim of the assessee was allowed in full by the tribunal, by relying on the decision of the Madras High Court in the case of Velayudhaswamy Spinning Mills (P.) Ltd (supra). In an appeal by the Revenue, the following question of law was placed for consideration by the High Court;


‘Given the facts and circumstances of the case, has the Income Tax Appellate Tribunal erred in deleting the addition made by the Assessing Officer on account of disallowance of deduction under section 80IA of the Income-tax Act, 1961, amounting to Rs.12,63,07,697, ignoring the mandate of provisions of Section 80IA(5) of the Act?’
The Revenue contended that the losses of the preceding previous years, though absorbed against the profits of such years, had to be notionally brought forward and reduced from the profit of the year in computing the deduction for the year, in view of the non-obstante clause of sub-section (5) of s. 80-IA, whose contention was upheld by the Karnataka High Court in the case of Microlabs Ltd. (supra).In contrast, the assessee contended that once the losses were absorbed and adjusted in the preceding previous years, such losses could not be brought forward and set off in computing the deduction for the year. The Delhi High Court upholding the decision of the tribunal and the contentions of the assessee company held that;

‘….., there is nothing to suggest in Sub-clause (5) of Section 80IA of the Act that the profits derived by an assessee from the eligible business can be adjusted against “notional losses which stand absorbed against profits of other business.” The deeming fiction created by sub-section (5) of Section 80IA does not envisage such an adjustment. The fiction which has been created is simply this: the eligible business will be the only source of income. There is no fiction created, that losses which have already been absorbed, will be notionally carried forward and adjusted against the profits derived from the eligible business to quantify the deduction that the assessee could claim under section 80IA of the Act.

A perusal of the judgment rendered in the Microlabs Ltd. case (supra) would show that the Karnataka High Court gave weight to the fact that sub-section (5) of Section 80IA commenced with a non-obstante clause. It was based on this singular fact that the Karnataka High Court chose to veer away from the view expressed by the Madras High Court in the Velayudhaswamy Spinning Mills (P.) Ltd. case (supra). This aspect emerges on an appraisal of paragraph 6 of the judgement of the Karnataka High Court rendered in Microlabs Ltd. case (supra).’

The Court observed that similar contentions were advanced by the Revenue in the case of Velayudhaswamy Spinning Mills (P.) Ltd. Case (Supra), and such contentions were disapproved by the Madras High Court. The Court also noted that the decision in the said case was followed by the Madras High Court in the case of Pr CIT vs.Prabhu Spinning Mills (P.) Ltd. 243 taxman 462 (Madras).In deciding the issue in favour of the assessee, the Delhi High Court disagreed with the ratio of the decision in the case of Microlabs Ltd. (supra)and chose to follow the ratio of the two decisions of the Madras High Court, to allow the claim of deduction without adjusting the losses set-off in the preceding previous years.

OBSERVATIONS

This interesting issue has far-reaching economic impact in cases of assessees otherwise qualifying for the deduction. The non-obstante clause of sub-section (5) has the effect of overriding the other provisions of the Act. The said clause requires that while determining the quantum of deduction under s. 80-IA, it should be assumed that the eligible business is the only source of income. The provision throws open a few questions;

  • What is the true meaning of the term ‘only source of income’,
  • Whether the other provisions of the Act applied in the preceding previous years should be presumed to have been ignored and the effect thereof be nullified for the purpose of computing deduction for the year on a stand-alone basis,
  • Whether the concept of stand-alone computation be applied for all the eligible years of deduction or should it be limited to the first year of claim of deduction,
  • Whether the past losses already absorbed against the past profits of the eligible business be notionally brought forward to the year of claim,
  • Whether the past losses already absorbed against the past profits of the other business or other income be notionally brought forward to the year of claim,
  • Whether the losses of the year from other ineligible business be set off and adjusted against the profit for the year of the eligible business in computing the claim of deduction.

The incentive was first conferred by the introduction of S. 80-I by the Finance Act, 1980 with effect from 1st April, 1981, which was substituted by s. 80-IA by the Finance (2) Act, 1991 with effect from 1.4.1991. The said provision was further substituted by the Finance (No 2) Act, 1998 with effect from 1st April, 1998, by splitting the provision into two parts, s. 80-IA and s. 80-IB. The new section 80-IA materially contains the identical provision for granting deduction in respect of profits of an infrastructure development enterprise, and s. 80-IB contains similar provisions for the profits of an industrial undertaking.

The provision of s. 80-IA (5) contains a non-obstante clause for computing only source of income on a stand-alone basis. This provision is made equally applicable to the computation of the deduction u/s. 80-IB as well. Some other incentive provisions of Chapter VIA of the Act also contain similar provisions. The deductions are, as noted earlier, subject to the overall conditions of s. 80A to 80B of the Act, which has the effect of limiting the overall deduction for the year to the gross total income of the year.

The case for higher deduction for the assessee, by holding out that the losses that are absorbed in the preceding previous years stand absorbed and cannot be rekindled by invoking the fiction of s. 80-IA(5), is better in as much as the Madras High Court and the Delhi High Court in three important decisions have held that such absorbed losses should not be notionally revived for set-off against the profits of the year of the eligible business. These High Courts have taken into consideration the ratio of the Special Bench decision in the case of Goldmine Shares & Finance (supra)and, only after considering the counter contentions, have decided the issue in favour of the assessee. The Courts also considered the decisions of the High Courts in the cases of CIT vs. Mewar Oil & General Mills Ltd. 271 ITR 311 (Raj.),Indian Transformers Ltd. vs. CIT, 86 ITR 192 (Ker.),CIT vs. L.M.Van Moppes Diamond Tools (India) Ltd., 107 ITR 386 (Mad.)andCIT vs. Balmer Lawrie & Company Ltd. 215 ITR 249 (Cal), to arrive at a conclusion rejecting the case for notional carry forward of the losses that were absorbed in the preceding previous years.

This view also gets support from CBDT Circular No. 1 dated 15th February, 2016. Importantly, these courts have held that there was nothing in sub-section (5) of s. 80-IA that suggested that profits derived by an assessee from the eligible business should be adjusted against notional losses which have been absorbed against profits of other businesses in the past years. They held that the deeming fiction created by sub-section (5) did not envisage any such adjustment. In the courts’ view, the fiction created was that the eligible business profit should be the only source of income; and that such a fiction did not extend to provide that the losses that have already been absorbed would be notionally carried forward and adjusted against the profits derived from the eligible business, while quantifying the deduction that the assessee could claim under s. 80-IA for the year. The Delhi High Court also held that the Karnataka High Court in Microlabs Ltd. case perhaps gave greater weightage to the non-obstante clause to expand its meaning to notionally carry forward such losses that had already been adjusted and absorbed.

It however is relevant for the record to state that the issue is presently before the Supreme Court, as in some of the cases, including in Microlabs Ltd. case, the apex Court has admitted the special leave petition. Incidentally, in the Prabhu Spinning Mills case, the Supreme Court has rejected the Special Leave Petition filed by the Department.

One of the considerations for the decisions in favour of the assessee was that the profits were allowed full deduction in the preceding previous years without set-off of absorbed losses, and with that, the Revenue had accepted the position in law. The circular of 2016, relied upon by the courts, was rendered in the context of defining the initial assessment year and permitting the deduction for the block period commencing from the initial year assessment year and not from the year of manufacturing or production.

It is also relevant to note that the profits that would finally be eligible for deduction would be limited to such profits that are included in the gross total income. Only such profits remain after the set off of the losses of the year pertaining to ineligible business, in view of a specific provision of s. 80A and s. 80B of the Act, would finally be allowed deduction.

S. 80-I brought in by the Finance Act, 1980 with effect from 1st April, 1981 provided for a similar incentive deduction and the implication and the scope of the deduction were explained by the Explanatory Notes and by the Board vide Circular No. 281 dated 22nd September, 1980. The said section also contained a non-obstante clause namely s. 80-I(6), which is more or less similar to s. 80-IA(7) and now 80-IA(5), presently under consideration. The scope of this section 80-I(6) was examined in the cases of Dewan Kraft System (P.) Ltd., 160 taxman 343 (Del), Ashok Alco Chem Ltd., 96 ITD 160 (Mum.), Prasad Production (P.) Ltd.,98 ITD 212 (Chennai), Sri. Ramkrishna Mills (CBE) Ltd., 7 SOT 356andKanchan Oil Industries Ltd., 92 ITD 557 (Kol.). These decisions largely favoured a view that the losses were required to be notionally carried forward, even though they were set off in the actual computation of earlier years.

The Calcutta High Court in Balmer Lawrie’s case was concerned with the deduction u/s. 80HH of the Act, which provision had no specific overriding clause like s. 80-I(6) or its successors. The decision of the Rajasthan High Court in the case of Mewar Oil & General Mills Ltd., (supra)was a case where the implication of the non-obstante clause was not examined and considered at all at any stage, and the issue involved therein was about the losses that were absorbed before the non-obstante clause was brought in force, or the incentive deduction was provided for. The decision largely concerned itself with an order that was passed u/s. 154 of the Act to withdraw the incentive granted in rectification proceedings.

There is no dispute that the non-obstante clause incorporates a deeming fiction which has to be given meaning, and importantly, has to be carried to its logical conclusion. The view that fiction has to be carried to its logical conclusion and should be given full force without cutting it midway, in the absence of any specific provision to cut it midway, is a settled position in law. Instead of appreciating the need for logically concluding the scope of a legal fiction, the courts have rather abruptly sought to cut its application midway; to hold, in the absence of a specific positive provision, permitting the notional carry forward of absorbed losses, that no fiction can be introduced. The alternative view perhaps was to allow the fiction to run its full course, by permitting the notional carry forward of absorbed losses in the interest of logically concluding such a fiction for the computation of quantum of deduction, and not for the purposes of any other provisions of the Act;

The deeming fiction by use of words ‘only source of income’ might take into consideration the income from that source alone from the initial assessment year and subsequent years, and might lead to computing the profit of the year after setting off the losses not absorbed by such profits, only by applying the rule that the fiction should be extended to the consequence that would inevitably follow by assuming an imaginary state of affairs as real unless prohibited, even where inconsistent corollaries are drawn.

Section 80-IA(5) bids one to imagine and treat the eligible business as the only source of income of an undertaking as real, as if there was no other source of income for the assessee. Having said so, the statute does not provide for limiting one’s imagination when it comes to the inevitable corollaries of the imagined state of affairs. It does not provide that the depreciation or losses of eligible business of past years if set off as per s.70 to 74 or s.32, should remain to be so set off, and should not be brought forward for computing the only source of income.

A legal ?ction of substance is created by sub-section (5) by which the eligible business has been treated as the only source of income. In applying the same, it may not be improper, but necessary, to assume all those facts on which alone the ?ction can operate, so, necessarily, all the provisions in the Act in respect of a source of income will apply. As a consequence, the other sources of income of an assessee / undertaking would have to be assumed as not existing. Consequently, any depreciation or loss of the eligible business cannot be set off against any income from another source which is assumed to have not been in existence, and therefore, the depreciation or the loss of the eligible business has to be carried forward for set off against the pro?ts of the eligible business in the subsequent year, even where such past losses were set off against the profits of the ineligible business as per the other provisions of the Act in the preceding previous year. Because of the ?ction, even if any set off of eligible business loss was made against other sources of income, it has to be assumed to not have been so set off.

“As if that were the only source of income” may require an assessee to ignore all other sources of income and that there was no other source of income. If that be so, the depreciation and loss of the eligible business cannot be absorbed and be set off against any other source or head of income. Consequently, they be carried forward and set off against the income of this very source only, for which the deduction is being computed.

It is not impossible to hold that neither the income nor loss of a business other than the eligible business of any year can be taken into consideration; nor the earlier years’ losses of the eligible business can be ignored, in computing the pro?t and gains to determine the quantum of the deduction under this section. Losses of the eligible business are to be set off only against the subsequent years’ income of the eligible business, even though these were set off against other income of the assessee in that earlier year.

Notes on clauses explaining the scope of sub-section (6) of s.80 I, 123 ITR 126 (Statute) reads as under:

“Sub-section (6) provides that for the purpose of computing the deduction at the speci?ed percentage for the assessment year immediately succeeding the initial assessment year and any subsequent assessment year, the pro?ts and gains will be computed as if such business were the only source of income of the assessee in all the assessment years for which the deduction at the speci?ed percentage under this section is available.”

The relevant part of the Memorandum Explaining the provisions of the Finance Bill, 1980, in the context of s. 80I reads as under;

‘”The new “tax holiday” scheme differs from the existing scheme in the following respects, namely

(i)    The basis of computing the “tax holiday” pro?ts is being changed from capital employed to a percentage of the taxable income derived from the new industrial unit, ship or approved hotel. In the case of companies, 25 per cent of the pro?ts derived from new industrial undertaking etc., will be exempted from tax for a period of seven years and in the case of other taxable entities 20 per cent of such pro?ts will be exempted for a like period. In the case of co-operative societies, however, the exemption will be allowed for a period of ten years instead of seven years.

(ii)    The bene?t of “tax holiday” under the new scheme would be admissible to all small-scale industrial undertakings even if they are engaged in the production of articles listed in the Eleventh Schedule to the Income-tax Act. In the case of other industrial undertakings, however, the deduction will be available, as at present, where the undertakings are engaged the production of articles other than articles listed in the said Schedule.

(iii)    In computing the quantum of “tax holiday” pro?ts in all cases, taxable income derived from the new industrial units, etc., will be determined as if such unit were an independent unit owned by a taxpayer who does not have any other source of income. In the result, the losses, depreciation and investment allowance of earlier years in respect of the new industrial undertaking, ship or approved hotel will be taken into account in determining the quantum of deduction admissible under the new section 80-I even though they may have been set off against the pro?ts of the taxpayer from other sources.”

S. 80-IA(5), by use of the words ‘for initial assessment year and every subsequent year up to and including the assessment year for which the determination is to be made’, has clarified that the provisions of the non-obstante clause shall apply to all the relevant assessment years for which a deduction was claimed and its scope should not be restricted to the initial assessment year alone.

It is also clear that the overriding effect of sub-section (5) is limited to the computation of the quantum of deduction u/s. 80-IA or 80-IB, and has no role to play in computing the total income otherwise as per the provisions of the Act. Therefore, the provisions of s. 80A and s. 80B have their own place in the scheme of the Act. It appearsthat the language of the text of sub-section (5) is clearand unambiguous, and therefore the meaning that has to be supplied for understanding its scope, will have to be from the literal reading of the provision,without bringing in the case for liberal or restricted interpretation.

In our considered opinion, it is appropriate for the Supreme Court or the Legislature to put the issue beyond doubt, in view of the larger effect on the taxpayers.

Recovery of tax — Stay of recovery proceedings — Discretion of Income-tax authorities — Discretion to be exercised in a judicious manner

64 Nirmal Kumar Pradeep Kumar (HUF) vs. UOI

[2023] 456 ITR 386 (Jhar)

A.Y.: 2020–21

Date of Order: 2nd May, 2023

S. 220 of ITA 1961

Recovery of tax — Stay of recovery proceedings — Discretion of Income-tax authorities — Discretion to be exercised in a judicious manner.

In the scrutiny assessment for A.Y. 2020–21, an addition of approximately Rs.202 crores was made on account of payment made by the assessee towards damage to the environment, by treating it as compensation and disallowed under Explanation 1 to section 37(1) of the Act. Pursuant to the completion of the assessment, a demand of Rs.96,99,29,760 was raised. Against the order of assessment, the assessee filed an appeal before the first appellate authority. The assessee also filed a rectification application u/s. 154. Upon rectification application, the order was rectified, and the demand was reduced to Rs.35,28,39,450.

Since the assessee had filed an appeal before the CIT(A), the assessee filed an application for a stay of demand mainly on the grounds that the demand was high-pitched and the disallowance made by the Assessing Officer (AO) was contrary to the decision of the Supreme Court in the case of Common Cause vs. UOI [2017] 9 SCC 499.

The assessee’s application for stay of demand was rejected by AO, stating that as per the Office Memorandum of CBDT dated 31st July, 2017, the assessee is required to pay at least 20 per cent of the outstanding demand and since the assessee had not paid the said demand of 20 per cent, the stay was rejected. The assessee assailed the application further before the Principal Commissioner who directed the assessee to pay Rs.5 crores by 15th March, 2023, and further directed the assessee to pay Rs.10 lakhs from April 2023 till the disposal of the appeal.

The assessee filed a writ petition challenging the orders passed by the AO and the Principal Commissioner. The Jharkhand High Court allowed the petition of the assessee and held as follows:

“i)    The power under sub-section (6) of section 220 is indeed a discretionary power. However, it is one coupled with a duty to be exercised judiciously and reasonably (as every power should be), based on relevant grounds. It should not be exercised arbitrarily or capriciously or based on matters extraneous or irrelevant. The Income-tax Officer should apply his mind to the facts and circumstances of the case relevant to the exercise of the discretion, in all its aspects. He has also to remember that he is not the final arbiter of the disputes involved but only the first among the statutory authorities.

ii)    Questions of fact and of law are open for decision before two appellate authorities, both of whom possess plenary powers. Thus, in exercising his power, the Income-tax Officer should not act as a mere tax gatherer but as a quasi-judicial authority vested with the power of mitigating hardship to the assessee. The Income-tax Officer should divorce himself from his position as the authoritywho made the assessment and consider the matter in all its facets, from the point of view of the assessee without at the same time sacrificing the interests of the Revenue.

iii)    When it comes to granting a discretionary relief like a stay of demand, it is obvious that the four basic parameters need to be kept in mind: (i) prima facie case, (ii) balance of convenience, (iii) irreparable injury that may be caused to the assessee which cannot be compensated in terms of money, and (iv) whether the assessee has come before the authority with clean hands. The requirements of reasonableness, rationality, impartiality, fairness and equity are inherent in any exercise of discretion, such an exercise can never be according to private opinion. In L. G. ELECTRONICS INDIA PVT. LTD. vs. PR. CIT the court stated that administrative circulars would not operate as a fetter upon the assessing authority which is the quasi-judicial authority to grant a stay.

iv)    Under section 246 of the Act which provides the remedy of preferring an appeal against the assessment order, there is no pre-deposit stipulated.

v)    The Assistant Commissioner had not considered anything and had just mechanically declined to grant a stay placing reliance upon the Office Memorandum dated 31st July, 2017 ([2017] 396 ITR (St.) 55) and recording, inter alia, that since the assessee had not deposited 20 per cent of the disputed demand as stipulated in the Office Memorandum, a stay was liable to be rejected. A bare reading of the order would clearly reveal that there was no independent application of mind and no discussion whatsoever on the prima facie case of the assessee, the balance of convenience and undue hardships including whether the assessee had come with clean hands. Accordingly, the order dated 31st January, 2023 passed by the Assistant Commissioner and the order dated 24th February, 2023 passed by the Principal Commissioner were liable to be quashed and set aside.

vi)    The matter is remitted back to respondent No. 3 to pass a fresh order on the application for stay of the petitioner in view of the principles laid down above, after granting due opportunity of hearing to the petitioner.”

Reassessment — Notice — Validity — Notice based on information from Deputy Director in respect of investigation of the firm from which two of assessee’s directors retired alleging that assessee had received bogus accommodation entries in form of imports — Investigation report on which reliance placed by Department not provided to the assessee — Notice vague and not clear — Order for the issue of notice and order of reassessment set aside — Matter remanded

63 Hari Darshan Exports Pvt. Ltd. vs. ACIT

[2023] 456 ITR 542 (Bom)

A.Y.: 2019–20

Date of Order: 11th July, 2023

Ss. 147, 148, 148A(b) and 148A(d) of ITA 1961

Reassessment — Notice — Validity — Notice based on information from Deputy Director in respect of investigation of the firm from which two of assessee’s directors retired alleging that assessee had received bogus accommodation entries in form of imports — Investigation report on which reliance placed by Department not provided to the assessee — Notice vague and not clear — Order for the issue of notice and order of reassessment set aside — Matter remanded.

The assessee was an exporter. For the A.Y. 2019–20, the assessee was issued a show-cause notice u/s. 148A(b) of the Income-tax Act, 1961, alleging that it had taken accommodation entries in the form of imports from a firm J in which two of the directors of the assessee were partners and had retired. The allegation was on the basis of certain information received from the Deputy Director, Ahmedabad. Along with the notice, a document titled “Verification Details” from the Insight Portal of the Department was provided wherein it was stated that the assessee had used J to import diamonds through a chain of intermediaries to escape any regulation by Government authorities and banks with respect to related party transactions for evading transfer pricing compliance. The assessee was not provided with the requested documentary details of the investigation of J.

Assessee filed a writ petition challenging the order u/s. 148A(d) and the consequent notice u/s. 148. The Bombay High Court allowed the writ petition and held as under:

“i)    It was not stated in the order u/s. 148A(d) on what basis the conclusion that the assessee had received accommodation entries in the form of imports from J had been arrived at. The details or documents of the investigation of J or the investigation report had not been made available to the assessee and there was nothing to indicate that this information was provided to the assessee. The order stated that the assessee did not submit any documentary evidence to prove the genuineness of its claim or regarding import to refute the claim that imports were bogus though the assessee had stated that whatever documents were required had been submitted.

ii)    There was no allegation that the assessee had made any imports and was not even called upon to produce documents regarding any imports. Therefore, an allegation could not be made that the assessee had not submitted any documentary evidence regarding imports to refute the claim that imports were bogus. On the facts and circumstances, the order passed u/s. 148A(d) and the consequential notice u/s. 148 were quashed and set aside. The matter was remanded to the Assessing Officer for de novo consideration.

iii)    Within two weeks the petitioner shall be provided by respondent No. 1 with copies of all documents/information regarding the investigation of M/s. Jogi Gems, including the statements recorded during the course of investigation and documents collected during the investigation. Respondent No. 1 may redact from the documents, portions that may not pertain to the petitioner or M/s. Jogi Gems.

iv)    Within two weeks of receiving these documents the petitioner shall, if so advised, file a further reply to the notice. The order to be passed under section 148A(d) of the Act shall be a reasoned order dealing with every sub- mission of the petitioner. Before passing any order, personal hearing shall be given to the petitioner, notice whereof shall be communicated at least five working days in advance.”

Reassessment — Notice u/s. 148 — Reason to believe that income has escaped assessment — Entity with which assessee had sale transaction not established to be shell entity — No enquiry conducted by AO pursuant to the receipt of information from investigation wing — Non-application of mind on part of AO — Notice and order rejecting assessee’s objections set aside

62 B. U. Bhandari Autolines Pvt. Ltd. vs. ACIT

[2023] 456 ITR 56 (Bom)

A.Y.: 2016–17

Date of Order: 10th February, 2023

Ss. 147, 148 of ITA 1961

Reassessment — Notice u/s. 148 — Reason to believe that income has escaped assessment — Entity with which assessee had sale transaction not established to be shell entity — No enquiry conducted by AO pursuant to the receipt of information from investigation wing — Non-application of mind on part of AO — Notice and order rejecting assessee’s objections set aside.

For the A.Y. 2016–17, the Assessing Officer issued a notice u/s. 148 of the Income-tax Act, 1961 against the assessee for reopening the assessment u/s. 147. Reasons were recorded that information was received from the Deputy Director (Investigation) that a search was conducted u/s. 132 in the case of one M and others wherein cash in demonetised currency was seized, that M in his statement named one R as the key accomplice and was connected with a shell entity MT, that from the value-added tax returns it was found that the assessee had made a sale with MT and that, therefore, the sale of goods by the assessee to MT was bogus and that income had escaped assessment on that account. The assessee’s objections to the reopening of the assessment were rejected.

The assessee filed a writ petition challenging the notice and the order rejecting the objections. The Bombay High Court allowed the writ petition and held as under:

“i)    The issue of reopening of assessment under section 147 had to be tested only on the basis of the reasons recorded, which could neither be improved upon nor substituted by an affidavit or oral submissions. It had not been alleged in the reasons that the entity MT with whom the assessee had made an alleged sale was being run by R although, in the reply affidavit it was stated by the Assessing Officer that MT was one of the entities which was floated by R for the purpose of providing accommodation entries. The reasons recorded also did not furnish any explanation on what basis and material the Assessing Officer had concluded that MT was a shell entity. The verification of the value-added tax returns referred to in the reasons recorded suggested only transactions between the assessee and the entity MT in regard to goods sold. Therefore, there was no material or basis for the Assessing Officer to hold the transaction between the assessee and MT not a genuine transaction of sale or for that reason to hold that MT was a shell entity.

ii)    The Assessing Officer had not independently applied his mind to the information received or conducted his own inquiry into the matter to conclude that income had escaped assessment or that the transaction in question with the alleged shell entity was only a paper transaction. The notice had been issued u/s. 148 without satisfying the conditions precedent u/s. 147. Therefore, the notice and the order rejecting the objections of the assessee were set aside.”

Reassessment — Notice — Res judicata — General principles — Consistency in decision making — Same decision-making authority rendering two decisions inconsistent with each other for different assessment years facts and circumstances being similar — Order and notice set aside

61 Prem Kumar Chopra vs. ACIT

[2023] 456 ITR 8 (Del)

A.Ys.: 2015–16 and 2016–17

Date of Order: 25th May, 2023

Ss. 147, 148, 148A(d) and 151 of ITA 1961

Reassessment — Notice — Res judicata — General principles — Consistency in decision making — Same decision-making authority rendering two decisions inconsistent with each other for different assessment years facts and circumstances being similar — Order and notice set aside.

The petitioner, a senior citizen, being the proprietor of M/s. Chopra Brothers is an authorised dealer for Kirloskar Electric Motors and is engaged in trading industrial electric motors, mono-block pumps and generator sets, etc. For the A.Y. 2015–16, the petitioner filed a return of his income, declaring the income of Rs.19,94,970 which was processed u/s. 143(1) of the Income-tax Act, 1961. On 7th April, 2021, the Assessing Officer, respondent No. 1 issued a notice u/s. 148 of the Act, which on being challenged by the petitioner, was set aside in terms of the decision in the case of Mon Mohan Kohli vs. Asst. CIT [2022] 441 ITR 207 (Delhi).

Thereafter, in terms of the decision of the Hon’ble Supreme Court in the case of Union of India vs. Ashish Agarwal [2022] 444 ITR 1 (SC); [2022] SCC OnLine SC 543, respondent issued notice dated 26th May, 2022, u/s. 148A(b) of the Act, alleging that on 26th November, 2016, a search had been conducted on the premises of an entry operator, namely, Shri Mohit Garg and during that search, in his statement, Shri Rajeev Khushwaha admitted to having provided bogus sale / purchase bills in exchange for cash; and that during the year relevant to the A.Y. 2015–16, M/s. Chopra Brothers through its proprietor Shri Prem Kumar Chopra was one of the beneficiaries of such accommodation entries to the tune of Rs.13,71,00,000.

An identical notice dated 25th July, 2022, was issued to the petitioner for the A.Y. 2016–17 as well. The petitioner submitted replies dated 10th June, 2022, and 21st July, 2022, to the said show-cause notice, thereby categorically denying any transaction with M/s. Divya International and Shri Rajeev Khushwaha. Along with the replies, the petitioner also submitted all relevant documents.

By way of order dated 28th July, 2022, respondent, accepting the case set up by the petitioner, dropped the proceedings pertaining to the A.Y. 2016–17, concluding that there is no escapement of income during the financial year 2015–16 relevant to the A.Y. 2016–17 in so far as there is no entry of transaction of sale or purchase by the bogus entity, M/s. Divya International, controlled by the entry operator Shri Rajeev Khushwaha to or from M/s. Chopra Brothers and accordingly held that it is not a fit case for issuance of notice u/s. 148 of the Act for the A.Y. 2016–17.

But soon thereafter, by way of an order dated 31st July, 2022, for the A.Y. 2015–16, respondent rejected the case set up by the petitioner, observing that there is escapement of income and accordingly held that it is a fit case for issuance of notice u/s. 148 of the Act.

The assessee, therefore, filed a writ petition challenging the validity of the notice u/s. 148 and the consequent reassessment order. The Delhi High Court allowed the writ petition and held as under:

“i)    Consistency, both in content and in procedure has to be adhered to in order to ensure predictability of the decisions. In order to ensure procedural and content consistency in decisions, every decision-making authority should ensure that in a given set of circumstances, their decision must be on the same lines as that of their predecessor or co-ordinate authorities in a similar set of circumstances. Where a decision-making authority finds itself unable to agree with the view earlier taken, by the predecessor or the co-ordinate, the authority concerned is duty bound to record cogent reasons for deviating. The significance of precedence cannot be ignored even in administrative decision-making.

ii)    The doctrine of res judicata does not apply to Income-tax proceedings pertaining to different assessment years since each assessment year is a separate assessment unit in itself only if it rests in a separate factual scenario and is supported by reasoning by the concerned authority.

iii)    The order u/s. 148A(d) and the notice u/s. 148 for the A.Y. 2015–16 were infirm since they proceeded on a view inconsistent with the earlier order for the A.Y. 2016–17 despite the facts and circumstances being similar and in the backdrop of a similar set of documentary evidence. The concerned Assistant Commissioner had dropped the proceedings pertaining to the A.Y. 2016–17, while for the A.Y. 2015–16, he had opted to proceed further u/s. 148A. The decision taken for the A.Y. 2016–17 was a reasoned decision, based on the analysis of material on record, but the decision taken subsequently for the A.Y. 2015–16 was not only completely inconsistent with the earlier view but even without reason. Though sanction u/s. 151 was accorded by two different sanctioning authorities the satisfactions recorded in both orders were of the same Assistant Commissioner. There was nothing on record to suggest that the latter sanctioning authority for the A.Y. 2015–16 was apprised of the earlier view taken by the sanctioning authority for the A.Y. 2016–17. An assessee deals with the Department as a whole. The order u/s. 148A(d) and the notice u/s. 148 were set aside.”

Offences and Prosecution — Wilful failure to file return — S. 276CC requires mens rea — Belated return and payment of tax and interest based on return accepted — Protective assessment set aside — No imposition of penalty — Prosecution not valid

60 Suresh Kumar Agarwal vs. UOI

[2023] 456 ITR 148 (Jhar)

A.Y.: 2013–14

Date of Order: 29th August, 2022

S. 276CC of ITA 1961

Offences and Prosecution — Wilful failure to file return — S. 276CC requires mens rea — Belated return and payment of tax and interest based on return accepted — Protective assessment set aside — No imposition of penalty — Prosecution not valid.

A search was conducted in the case of the assessee on 19th February, 2014, and subsequently, the assessee was required to file his return of income within 15 days from the date of receipt of the notice issued u/s. 153A of the Act. The assessee failed to file the return of income within the time provided and ultimately filed the same after a lapse of almost 17 months without giving any reasonable cause. The assessee also did not file any petition for condonation of delay.

The Department launched prosecution u/s. 276CC of the Act. The department alleged that the assessee had deliberately, willingly, intentionally and having mens rea in his mind avoided filing the return of income.

The assessee filed a writ petition for quashing the prosecution proceedings. The assessee contended that the delay in filing the return was due to death in the family and on account of not getting photocopies of papers and documents which were seized by the Income-tax Department. Further, the assessee submitted that the tax had been paid in full along with interest. The addition made by the Assessing Officer (AO) had been deleted by the CIT(A). No penalty had been levied by the AO. Lastly, the assessee submitted that since no penalty had been levied and no tax was due from the assessee, the launching of prosecution was bad in law.

The Jharkhand High Court allowed the writ petition and held as follows:

“i)    Section 276CC of the Income-tax Act, 1961, provides for prosecution in cases of wilful failure to file returns. The wilful failure referred to in section 276CC of the Act brings in the element of guilt and thus the requirement of mens rea will come into force.

ii)    It was admitted that the assessee had not filed his return on time but had filed the return belatedly with interest, which had been accepted by the authority concerned. The subsequent protective assessment was the subject matter before the first appellate authority, which had set aside the entire further assessment of the assessee.

iii)    The assessee had already deposited the tax as well as the interest in the light of the statute. When the Income-tax Officer had levied interest for the delay in filing of the return, it must be presumed that the Income-tax Officer had extended the time for filing the return after satisfying himself that there were grounds for delay in filing the return. When the amount in question with the interest had already been paid, no sentence could be imposed on the assessee.”

Computation of Capital Gains — Deduction of expenses wholly and exclusively in connection with transfer of capital asset — Transfer of shares – Amount paid for professional advice in accordance with articles of association of company – Deductible

59 Chincholi GururajacharVenkatesh and  Satish Kumar Pandey vs. ACIT

[2023] 456 ITR 459 (Cal)

A.Y.: 2016–17

Date of Order: 16th December, 2022

S. 48 of ITA 1961

Computation of Capital Gains — Deduction of expenses wholly and exclusively in connection with transfer of capital asset — Transfer of shares — Amount paid for professional advice in accordance with articles of association of company — Deductible.

The assessees held shares of one MTPL. During the previous year relevant to the assessment year under consideration, the assessee paid professional fees to KPMG and Khaitan & Co in connection with the transfer of shares of MTPL by the assessees to a German Company. During the assessment proceedings, the AO held that the selling expenses were not incurred wholly and exclusively in connection with the transfer of their shares and disallowed the expense.

The CIT(A) as well as the Tribunal confirmed the addition.

The Calcutta High Court allowed the appeal filed by the assessee and held as under:

“i)    U/s. 48 of the Income-tax Act, 1961, in computing capital gains, the expenditure incurred wholly and exclusively in connection with the transfer of capital asset is deductible. The word ‘connection’ in section 48(i) reflects that there should be a casual connect and the expenditure incurred to be allowed as a deduction must be united or in the state of being united with the transfer of the capital asset resulting in income by way of capital gains on which tax has to be paid. The expenditure, therefore, should have a direct connection and should not be remote or have indirect result or connect with the transfer.

ii)    Under article 8 of the articles of association of the company a shareholder desirous of selling his shares must notify the number of shares, a ‘fair value’ and the proposed transferee. The assesses’ specific case was that they had engaged the services of the professionals for the purpose. The transfer of shares was not disputed by the Department. Admittedly, K was a firm providing advisory services and K and Co. was a law firm. The assessees had engaged the services of professionals who had identified the investor, negotiated the value and structured the transaction. Therefore, the transaction had an inextricable nexus with the transfer of shares. The expenditure incurred was deductible in computing the capital gains.”

Business expenditure — Accrued or contingent liability — Provision for future expenses based on turnover — Amount set apart to meet future liabilities — Expenses in-built in the contract — Provision not contingent — Allowable deduction

58 Principal CIT vs. CEC SOMA CICI JV

[2023] 456 ITR 705 (Kar)

A.Ys.: 2011–12, 2012–13

Date of Order: 21st March, 2023

S. 37 of ITA 1961

Business expenditure — Accrued or contingent liability — Provision for future expenses based on turnover — Amount set apart to meet future liabilities — Expenses in-built in the contract — Provision not contingent — Allowable deduction.

The assessee entered into a contract with BMCRL to design, construct tunnels and do other civil works. The total projected future expenses (non-billable expenses) included the reconstruction of roads damaged while constructing tunnels and during the other construction activities undertaken by the assessee. The non-billable expenses were in-built in the contract and payment for them was made by the assessee and not BMRCL. For the A.Ys. 2011–12 and 2012–13, based on the turnover, the assessee made provision for expenses and claimed deduction. The Assessing Officer disallowed the claim.

The Commissioner (Appeals) allowed the assessee’s appeal on the grounds that the provision was not contingent in nature but based on the matching expenditure on ascertained liability. The Tribunal upheld his order.

The Karnataka High Court dismissed the appeals filed by the Revenue and held as under:

“i)    The provision for expenses was made on a pro rata basis based on the turnover with reference to total unbillable future expenses of the assessee’s project. For the A.Y. 2013–14 after the remand the Assessing Officer had accepted the provision made by the assessee. For the subsequent A.Y. 2014–15, no disallowance had been made.

ii)    The Tribunal was right in setting aside the disallowances made by the Assessing Officer in respect of the deduction of future expenses claimed by the assessee for the A.Ys. 2011–12 and 2012–13.”

Reporting Under PMLA by Professionals – Deciphering ‘On Behalf Of’

INTRODUCTION

Notifications dated 3rd May, 2023 and 9th May, 2023 issued by the Ministry of Finance have the effect of making relevant persons ‘reporting entities’ as more particularly defined by Section 2(1)(sa)(vi) read with Section 2(1)(wa) of the Prevention of Money Laundering Act, 2002 (PMLA).

The 3rd May, 2023 Notification purports to cover within the definition of ‘reporting entities’ those ‘relevant persons’ who carry out ‘financial transactions’ on behalf of his / her client, in the course of one’s profession in relation to certain activities. If the certain activities listed in the Notification are carried out by the ‘relevant person’, then the professional would find himself/herself as a reporting entity under the PMLA. Explanation 1 in the Notification states that a ‘relevant person’ would include:

•    an individual who obtained a certificate of practice under section 6 of the Chartered Accountants Act, 1949 (38 of 1949) and practicing individually or through a firm, in whatever manner it has been constituted;

•    an individual who obtained a certificate of practice under section 6 of the Company Secretaries Act, 1980 (56 of 1980) and practicing individually or through a firm, in whatever manner it has been constituted;

•    an individual who has obtained a certificate of practice under section 6 of the Cost and Works Accountants Act, 1959 (23 of 1959) and practicing individually or through a firm, in whatever manner it has been constituted.

On the other hand, the 9th May Notification purports to cover within the definition of ‘reporting entities’ those ‘persons’ who carry out certain activities in the course of business on behalf of or for another person as the case may be. This Notification does not seek to restrict the applicability of the Notification to a specific business or profession and therefore, can also act as a trigger for professionals to become reporting entities under the PMLA.

India is a member of the Financial Action Task Force (FATF). The FATF has a set of 40 recommendations that the member countries seek to implement in order to combat the menace of money laundering. Trying to comply with the FATF recommendations on money laundering is one of our country’s international commitments. In fact, the PMLA Act itself is a result of India’s international commitments. The preamble to the Act reads as follows:

“An Act to prevent money-laundering and to provide for confiscation of property derived from, or involved in, money-laundering and for matters connected therewith or incidental thereto.

WHEREAS the Political Declaration and Global Programme of Action, annexed to the resolution S-17/2 was adopted by the General Assembly of the United Nations at its seventeenth special session on the twenty-third day of February, 1990;

AND WHEREAS the Political Declaration adopted by the Special Session of the United Nations General Assembly held on 8th to 10th June, 1998 calls upon the Member States to adopt national money-laundering legislation and programme;

AND WHEREAS it is considered necessary to implement the aforesaid resolution and the Declaration.”

While much has already been discussed regarding these two notifications, there is still uncertainty around the phrase ‘on behalf of’ as used in them. Though perhaps we may have to wait for an authoritative judicial pronouncement on the exact interpretation to be given to this commonly used phrase, today we seek to lay down broad contours of what ‘on behalf of’ could mean with regard to these two notifications.

THE FATF FACTOR

The FATF recommendations also use the phrase ‘on behalf of’ quite often. In fact, the phrase ‘on behalf of’ when used in the Recommendations, seems to signify a fiduciary relationship and is broader than what is given in Indian law. Recommendation 23 (a) reads as follows:

Lawyers, notaries, other independent legal professionals and accountants should be required to report suspicious transactions when, on behalf of or for a client, they engage in a financial transaction in relation to the activities described in paragraph (d) of Recommendation 22. Countries are strongly encouraged to extend the reporting requirement to the rest of the professional activities of accountants, including auditing.

Recommendation 22 (d) in turn reads as follows:

Lawyers, notaries, other independent legal professionals and accountants – when they prepare for or carry out transactions for their client concerning the following activities:

•    buying and selling of real estate;

•    managing of client money, securities or other assets;

•    management of bank, savings or securities accounts;

•    organisation of contributions for the creation, operation or management of companies;

•    creation, operation or management of legal persons or arrangements, and buying and selling of business entities.

The above two recommendations read together therefore are the genesis of the 3rd May, 2023 Circular. This is in line with the commitment that our country is showing to combat money laundering.

LAYING THE GROUNDWORK – USING ‘FOR ANOTHER PERSON’ TO HELP IN INTERPRETING ‘ON BEHALF OF’

In order to narrow down on the meaning of ‘on behalf of’, it would be perhaps instructive to hazard a guess as to what would constitute ‘for another person’. The 3rd May, 2023 notification does not include ‘for another person’. This language is used in the 9th May, 2023 Notification, the relevant portion of which reads –

“the following activities when carried out in the course of business on behalf of or for another person, as the case may be, as an activity for the purposes of said sub-clause”

Therefore, the Notification itself draws a distinction between ‘on behalf of another person’ and ‘for another person’ by making them alternative to each other through the use of the conjunction ‘or’. The list of activities covered in the 9th May notification is also instructive:

a)    “acting as a formation agent of companies and limited liability partnerships;

b)    acting as (or arranging for another person to act as) a director or secretary of a company, a partner of a firm or a similar position in relation to other companies and limited liability partnerships;

c)    providing a registered office, business address or accommodation, correspondence or administrative address for a company or a limited liability partnership or a trust;

d)    acting as (or arranging for another person to act as) a trustee of an express trust or performing the equivalent function for another type of trust; and

e)    acting as (or arranging for another person to act as) a nominee shareholder for another person”.

Though the Explanation to the Notification provides for a list of exclusions, the only relevant part for our discussion would perhaps be restricted to Explanation ‘b’ which reads as follows:

“any activity that is carried out by an employee on behalf of his employer in the course of or in relation to his employment;”

The list of activities enumerated from ‘(a) to (e)’ above is telling. These activities do not need to be necessarily carried out in a representative capacity. They may also be carried out in a personal capacity for the benefit of someone else. A hypothesis can thus be drawn that ‘on behalf of another person’ would denote a person acting in a ‘representative capacity’ for another person, but ‘for another person’ would denote a person acting in a personal capacity for another person. Therefore, based on this premise, the 9th May, 2023 notification would make a professional a ‘reporting entity’, whether he carried out those activities in his individual capacity or in a representative capacity.

However, the absence of ‘for another person’ in the 3rd May, 2023 notification is telling. Firstly, the notification restricts itself to ‘financial transactions’, to be carried out specifically ‘on behalf of a client’, ‘in the course of the profession’ and in ‘relation to the following activities’–

1.    “buying and selling of any immovable property;

2.    managing of client money, securities or other assets;

3.    management of bank, savings or securities accounts;

4.    organisation of contributions for the creation, operation or management of companies;

5.    creation, operation or management of companies, limited liability partnerships or trusts, and buying and selling of business entities.”

It may be of particular interest to note that the transactions covered in ‘1 to 5’ as enumerated above can possibly be conducted both ‘on behalf of a client’ as well as ‘for a client’. As the notification omits using the phrase ‘for the client’, the interpretation of ‘on behalf of a client’ gains a greater relevance. Significantly, distinguishing ‘on behalf of a client’ and ‘for a client’ also gains greater relevance as, while the former would make the professional a ‘reporting entity’, the latter would not.

DECIPHERING THE ENIGMA OF ‘ON BEHALF OF’

While embarking upon a journey to find the meaning of a phrase in law, the Black’s Law Dictionary has often served as a good starting point. The Black’s law dictionary, while defining ‘behalf’, includes the definition of ‘on behalf of’. The definition in the dictionary supports our hypothesis that ‘on behalf of’ would denote representative capacity. The dictionary states as follows:

behalf.[fr. Anglo-Saxon half “unit, side”] (14c) Side, part, advantage, or interest. • The phrase in behalf of traditionally means “in the interest, support, or defense of”; on behalf of means “in the name of, on the part of, as the agent or representative of.”

In fact, the Income-tax Act, 1961, also leads credence to this hypothesis of ‘on behalf of’ being used in a representative capacity. The phrase ‘on behalf of’ is used in the very definition of ‘Authorised Representative in Section 288(2) of the Act. It is reproduced below as follows:

Section 288 (2) For the purposes of this section, “authorised representative” means a person authorised by the assessee in writing to appear on his behalf, being—

(i)    a person related to the assessee in any manner, or a person regularly employed by the  assessee; or

(ii)    any officer of a Scheduled Bank with which the assessee maintains a current account or has other regular dealings; or

(iii)    any legal practitioner who is entitled to practise in any civil court in India; or

(iv)    an accountant; or

(v)    any person who has passed any accountancy examination recognised in this behalf by the Board; or

(vi)    any person who has acquired such educational qualifications as the Board may prescribe for this purpose; or

(via)    any person who, before the coming into force of this Act in the Union territory of Dadra and Nagar Haveli, Goa†, Daman and Diu, or Pondicherry, attended before an income-tax authority in the said territory on behalf of any assessee otherwise than in the capacity of an employee or relative of that assessee; or

(vii)    any other person who, immediately before the commencement of this Act, was an income-tax practitioner within the meaning of clause (iv) of sub-section (2) of section 61 of the Indian Income-tax Act, 1922 (11 of 1922), and was actually practising as such;

[(viii)    any other person as may be prescribed.]

Thus, the phrase ‘on behalf of’ in the Income-tax Act, 1961, is clearly in a representative capacity. It may be noted that for a professional to appear before the tax authorities, a ‘vakalatnama’ or a ‘power of attorney’ is required. This allows the person so authorised to appear ‘on behalf of a person’ before various authorities and make pleadings and submissions on their behalf. These pleadings and submissions are binding upon the person so represented. A cursory glance at umpteen Judgements of various courts will show that the Courts observe that Advocates have appeared ‘on behalf of’ a client. This introduces an additional point of distinction between ‘on behalf of’ and ‘for’. We may add this to our original hypothesis – For a transaction or activity to be carried out ‘on behalf of’ another person, there should be authorisation to that effect and the intention to be bound by the action of the person so authorised acting on one’s behalf.

In fact, inspiration can be drawn from the Judgment of the Constitution Bench of the Supreme Court in M. Siddiq (Ram Janmabhumi Temple-5 J.) vs. Suresh Das, (2020) 1 SCC 1The Judgment, more famously known as the ‘Ayodhya Judgment’ or the ‘Ram Janmabhoomi Temple Judgment’ discussed the right of a ‘Shebait’ and the ‘next friend’ of the idol to institute a suit. The following extracts of the Judgment may prove to be instructive:

“Courts recognise a Hindu idol as the material embodiment of a testator’s pious purpose. Juristic personality can also be conferred on a Swayambhu deity which is a self-manifestation in nature. An idol is a juristic person in which title to the endowed property vests. The idol does not enjoy possession of the property in the same manner as do natural persons. The property vests in the idol only in an ideal sense. The idol must act through some human agency which will manage its properties, arrange for the performance of ceremonies associated with worship and take steps to protect the endowment, inter alia by bringing proceedings on behalf of the idol. The shebait is the human person who discharges this role..

..The dedicated property legally vests in the idol in an ideal sense and not in the shebait. A shebait does not bring an action for the recovery of the property in a personal capacity but on behalf of the idol for the protection of the idol’s dedicated property. Ordinarily, a deed of dedication will not contain a provision for the duties of the shebait. However, an express stipulation or even its absence does not mean that the property of the idol vests in the shebait. Though the property does not legally vest in the shebait, the shebait may have some interest in the usufruct generated from it. Appurtenant to the duties of a shebait, this interest is reflected in the nature of the office of a shebait..

..Ordinarily, the right to sue on behalf of the idol vests in the shebait. This does not however mean that the idol is deprived of its inherent and independent right to sue in its own name in certain situations. The property vests in the idol. A right to sue for the recovery of property is an inherent component of the rights that flow from the ownership of property. The shebait is merely the human actor through which the right to sue is exercised. As the immediate protector of the idols and the exclusive manager of its properties, a suit on behalf of the idol must be brought by the shebait alone. Where there exists a lawfully appointed shebait who is able and willing to take all actions necessary to protect the deity’s interests and to ensure its continued protection and providence, the right of the deity to sue cannot be separated from the right of the shebait to sue on behalf ofthe deity. In such situations, the idol’s right to sue stands merged with the right of the shebait to sue on behalf of the idol..

..A suit by a shebait on behalf of an idol binds the idol.For this reason, the question of who can sue on behalf of an idol is a question of substantive law. Vesting any stranger with the right to institute proceedings on behalf of the idol and bind it would leave the idol and its properties at the mercy of numerous individuals claiming to be “next friend”. Therefore, the interests of the idol are protected by restricting and scrutinising actions brought on behalf of the idol. For this reason, ordinarily, only a lawful shebait can sue on behalf of the idol. When a lawful shebait sues on behalf of the deity, the question whether the deity is a party to the proceedings is merely a matter of procedure. As long as the suit is filed in the capacity of a shebait, it is implicit that such a suit is on behalf of and for the benefit of the idol..”

Therefore, the shebait acts in a representative capacity on behalf of the idol in instituting a suit and by the virtue of being the shebait, has the authorisation by the virtue of appointment and consequently the authority to bind the idol through a suit. In short, as the Supreme Court observed, the shebait can file a suit on behalf of the idol.

In fact, the expression ‘on behalf of’ also finds use in the relationship of ‘agency’. A recent Judgment of the Supreme Court inRajasthan Art Emporium vs. Kuwait Airways & Onr. 2023 SCC OnLine SC 1461,examining Section 237 of the Indian Contract Act considered if the agent had the authority to act ‘on behalf of’ the Principal.

Section 237 of the Contract Act provides that:

“237. Liability of principal inducing belief that agent’s unauthorised acts were authorised – When an agent has, without authority, done acts or incurred obligations to third persons on behalf of his principal, the principal is bound by such acts or obligations if he has by his words or conduct induced such third persons to believe that such acts and obligations were within the scope of the agent’s authority.”

The Court observed that: “There is no gainsaying that onus to show that the act done by an agent was within the scope of his authority or ostensible authority held or exercised by him is on the person claiming against the principal. This, of course, can be shown by practice as well as by a written instrument. Thus, the question for consideration is whether on the evidence obtaining in the instant case, can it be said that Respondent 3 had an express or implied authority to act on behalf of Respondent 1 as their agent? If Respondent 3 had such an authority, then obviously Respondent 1 was bound by the commitment Respondent 3 had made to the appellant.”

This Judgment would also support our hypothesis that in order to act ‘on behalf of’ someone, the person must be authorised, and act in a representative capacity and such act must have the power to bind the person to the act committed.

In State of W.B. vs. O.P. Lodha (1997) 5 SCC 93 where an agent was selling goods both in his individual capacity and in his capacity as an agent, the Supreme Court observed: “In my judgement, the scheme of the Act leaves no room for doubt that an agent who sells goods on behalf of somebody else cannot escape the liability to pay sales tax on the sales made by him for and on behalf of others merely because, he was selling goods on behalf of others.”

The importance of the ‘on behalf of’ being in the course of business or profession to trigger the reporting obligations.

Therefore, a relationship akin to an agency would see an agent act ‘on behalf of the principal’. A perusal of the list of the activities and finance transactions covered by both the 3rd May as well as the 9th May, 2023 Notifications would seem to suggest that an agency relationship and the relationship of a constituted attorney / power of attorney holder for carrying out the listed activities / transactions would trigger the definition of reporting entity. After all, a constituted attorney also acts in a representative capacity, is specifically authorised and can bind the Donor (the person who grants the power of attorney) by his / her Acts.

For professionals, it is important to note that both Notifications carry an important safeguard. The activity / transactions must be carried out in the course of business / profession. If this safeguard did not exist, then personal transactions / activities of the nature listed in the notifications would also have been covered. After all, it is quite common for a parent / guardian / family member / spouse to act ‘on behalf of’ the minor child / ward / other members of the family or spouse. For example, for a minor to be admitted into a partnership, a parent / guardian needs to enter into the contract on the minor’s behalf.

In CIT vs. Shah Mohandas Sadhuram [1965] 57 ITR 415 (SC) the Supreme Court observed “Before we discuss these questions it is necessary to consider what are the incidents and true nature of “benefits of partnership” and what is a guardian of a minor competent to do on behalf of a minor to secure the full benefits of partnership to a minor. First it is clear from sub-section (2) of section 30 of the Partnership Act that a minor cannot be made liable for losses. Secondly, section 30, sub-section (4), enables a minor to sever his connection with the firm and if he does so, the amount of his share has to be determined by evaluation made, as far as possible, in accordance with the rules contained in section 48, which section visualises capital having been contributed by partners. There is no difficulty in holding that this severance may be effected on behalf of a minor by his guardian. Therefore, sub-section (4) contemplates that capital may have been contributed on behalf of a minor and that a guardian may on behalf of a minor sever his connection with the firm. If the guardian is entitled to sever the minor’s connection with the firm, he must also be held to be entitled to refuse to accept the benefits of partnership or agree to accept the benefits of partnership for a further period on terms which are in accordance with law. Subsection (5) proceeds on the basis that the minor may or may not know that he has been admitted to the benefits of partnership. This sub-section enables him to elect, on attaining majority, either to remain a partner or not to become a partner in the firm. Thus it contemplates that a guardian may have accepted the benefits of a partnershipon behalf ofa minor without his knowledge. If a guardian can accept benefits of partnership on behalf ofa minor, he must have the power to scrutinise the terms on which such benefits are received by the minor. He must also have the power to accept the conditions on which the benefits of partnership are being conferred. It appears to us that the guardian can do all that is necessary to effectuate the conferment and receipt of the benefits of partnership.”

In fact, ‘on behalf of is often used between a minor and a guardian. If we look at the Indian Trusts Act, 1882, it uses the phrase ‘on behalf of’, statutorily allows a trust to be created by or on behalf of a minor subject to the law contained in Section 7(b) of the Act. In the Definitions included in the FATF 40 recommendations, the phrase ‘on behalf of’ is also used in the definition of trustee to denote a family member which reads as follows:

Trustee: The terms trust and trustee should be understood as described in and consistent with Article 2 of the Hague Convention on the law applicable to trusts and their recognition. Trustees may be professional (e.g. depending on the jurisdiction, a lawyer or trust company) if they are paid to act as a trustee in the course of their business, or a non-professional who is not in the business of being a trustee (e.g. a person acting on behalf of the family).

Normally, this activity of the Guardian would have triggered the definition of ‘reporting entity’ qua the 9th May, 2023 Notification by acting as a partner of a firm on behalf of the minor or through the other activities / transactions listed in the notifications e.g. buying and selling of immovable property and management of bank, savings of securities account. The same activities can also be carried out for family members as well as major children through an express Power of Attorney etc. Therefore, the transaction / activity needing to be in the course of profession / business in addition to being carried out on behalf of another person or (in the case of the 9th May, 2023 Notification) for another person is an important safeguard to one’s privacy.

CONCLUSION

This discussion, rather than trying to be the last word on the interpretation of the phrase ‘on behalf of’seeks to be a ‘starting point’.  The phrase ‘on behalf of’ is generic and is often used in a broad sense. Whether an activity or a transaction is conducted on behalf ofanother person or not would be greatly influenced by fact. The image would change as one peers through the kaleidoscope of facts. In law, the interpretation given to this phrase will undoubtedly affect both, the professionals as well as the general public with regard to the reporting and compliance requirements imposed by Chapter IV of the PMLA.

If one goes through the FATF recommendations which are available on the website, one would see  that the scheme is putting the onus on Lawyers, Notaries, Independent Legal Professionals and Accountants to carry out KYC and report suspicious transactions as a  part of the 40 recommendations. Therefore, putting the onus on professionals is not a decision that has been taken by the Government of India in an arbitrary manner or as a ‘vendetta’ but is a part of our international commitments to adhere to global practices. These obligations will be implemented in FATF member countries across the globe at some point in time, if not already implemented. The relationships that have been indicated for the purposes of reporting are mainly fiduciary in nature. Professionals can avoid being reporting entities by not rendering the services that have been listed in the Notifications. Most of these services are generally not a part of professional services rendered and are more ‘personal’ in nature and may be seen as being fiduciary relationships.

It is important to note that the penalty for not complying with Chapter IV of the PMLA is a monetary one under Section 13 and no prosecution is contemplated. The fine may be steep, as a separate fine may be levied (maximum of One lakh), but the fine shall be for each individual infraction and may add up quite quickly.  However, a word of caution: Some of these activities may also be in violation of the professional code of ethics and may give rise to disciplinary proceedings against the professional concerned. It would perhaps be better for most professionals to avoid carrying out the activities that are contemplated by the 3rd and 9th May, 2023 Notifications in the course of carrying on their professions.

BCAS – Volunteering – Making a Difference

CORE OF VOLUNTEERING IS TAKING VOLUNTEERING TO THE CORE

RAMAN JOKHAKAR

Chartered Accountant
(Editor from August 2017 to July 2022)

 

I was requested by the Hon. Editor of BCAJ, Dr CA Mayur B. Nayak, to write a musing on volunteering. What a fabulous subject! It is inspired by the BCAS theme of this quarter, Change — Leaders — Charity. In our profession, we are used to quarterly themes that are about guidance on profits or Sarkari announcements on tax collection data and so on. To have the theme of Change — Leaders — Charity is unique. I have taken some of the outline points given by the Editor, as subheadings, and shared my thoughts on them.

Association with BCAS: Many members after becoming Chartered Accountants are told by their mentors / parents / principal to become a BCAS member. So was I when my father asked me to enrol as a life member immediately after the results.However, my association was much before that. My father was the president of the BCAS in 1971–72. I was born in 1972. Growing up, I had heard many stories from the times he used to be a member in the early days of the BCAS. The Bulletins and other material used to get posted from our office for some time. The Union Budget copies, that were brought from Delhi by evening flight by seniors like the late Shri P. N. Shah, were copied (it wasn’t as easy as today) and circulated the next day. I had heard stories of how seniors gave generously their time and some big names of today didn’t help the Society. I had heard from him stories of how elders mentored a younger president half their age. One story in particular is of Shri P D Kunte, who gave office property to the Society in its early days. And I thought to myself, what goodwill must be in it, apart from his generosity. Stories of people, who said they will work but won’t take a position in management. It seems that ordinary people do extraordinary things through volunteering. Many unique personalities simply worked for the love of it — expecting close to nothing and building professional camaraderie that lasts a lifetime. Even in those days when life was much more severe and funds were lesser, hearts were larger. As I grew up, I had heard stories like these more than once.

As a young person / article student, I remember visiting some BCAS members like the late Shri Ajay Thakkar (then Editor), whose office was a few blocks away. So as a young man, I felt, when I grew up, I would like to be like that! I resonated with the culture and spirit of the BCAS. People thought of the Society as their own and they belonged to it.

After qualifying, Shri Ajay Thakkar (Editor, 1990–2000) took me to the Core Group in the Journal Committee. At some point in time, I was given the opportunity to co-author a compilation feature called Miscellanea. In those times, committee meetings were ‘full house’; discussions went from words all the way to their essence. Members of the committee had vast experience, whereas I was the least experienced. Mostly, I was a spectator, amused, and often sensing my ignorance while hearing people talk at those meetings. I remember that everyone around wanted to make things better — do more to achieve that. This connected me more to the Society.

I remember one Chartered Accountant member told me that his son doesn’t want to do any FOC (Free of Cost) work, so he didn’t associate with the BCAS much. But I had volunteered all my teens and early 20s as a student. Serving without expectation of reward — often called seva — was a part of life, in that way I studied and also served on weekends and holidays. Some of that non-professional work — seva — was the best education that I have ever received. So, I associated with BCAS in a similar way.

As an office bearer and later as BCAS president, I got to work closely with many people. There is nothing more valuable than working with bright people in a voluntary setting. Once, I saw Shri Narayan Varma, who was suffering from cancer, come straight from the hospital to BCAS to attend an important meeting. And I thought BCAS was really close to his heart. I got to see numerous perspectives from people — how they thought about matters of the Society. How people disagreed. How consensus was the mode of operation. How long-term thinking was part of the system. People always think about how a decision can become a precedent to deal with in the future. Culture and quality were more important than numbers. How politics was kept at bay and those who worked were taken ahead. As office bearers, the president paid for the snacks at OB meetings and that as office bearers, we wouldn’t take any ‘benefit’ except tea / coffee from the Society. I thought some of these were priceless standards and were higher than written ones. I also saw some people treat BCAS work as a top priority, while others took it as secondary. Some wanted to get some standing, some were there to share their stand on matters, and most to help others stand straight and tall.

Volunteering has been like standing on a tower built by so many, for so many, and seeing what it does, what it can do, and giving shape to it. I feel it’s inside out though, and only a reflection of your commitment to what you value most.

BCAS is important to my mind. An association outside a Statutory Body, such as ICAI is very important. The government can take over statutory bodies and influence them. Voluntary bodies are outside that ambit of direct control. And, therefore, have a role of their own to be a free voice that is clear, non-partisan and not be a wah wah party and instead boldly make observations and recommendations. It takes generations to build such bodies. I saw people who would be invited to places to speak. But they always kept BCAS in the forefront as a flag bearer more than themselves. Time and even money would be theirs, but credit went to BCAS.

Role as Editor: I think each role during my volunteering journey has only gotten better. The last role as Editor was the most gruelling for its length of five years, its daily focus on dealing with monthly plans and the sheer responsibility it carries. Yet, it was the most rewarding.

For one, I didn’t know that Editors mostly had a Co-Chair, etc., with them in the past. So in ignorance, I carried on solo as Chairman and Editor. But never felt for a moment like that as all the Editors before me were available to help. It felt like they saw me as them continuing in some sense and taking the Journal further. It was perhaps the most enriching and transforming time after being a Core Committee member to Managing Committee member to an Office Bearer. One thing I learnt by writing an Editorial every month was that I had to think more. I had to hit the nail. I couldn’t disregard what was happening in the profession like NFRA, Expert Committee Report, to Self Regulation and so on.

It was also exhilarating to execute some projects, which were spoken about but couldn’t get done for years (like Views and Counterviews or Surveys). As a comparatively younger Editor, I had to meet the expectations of the past Editors, who were always watching over and also looking out for me. There was freedom with scrutiny. The 50th year of the Journal was truly a ‘golden’ year for me to work as Editor.

I think volunteering gives meaning to the words ofSt. Francis of Assisi — “it’s in giving that you receive”.To deliver consistently without missing a beat changes you. To me, the desire to make something better than the way you received it, makes one better than what one can ever be!

Balance of personal, professional and BCAJ Life: As a president, I worked out regularly. I just kept that promise of being healthy and fit. In fact, I did a session or two with BCAS staff on fitness, which they still remember. However, it meant, I had to work longer at night and early mornings. I would call focus as against balance alone. One had to be sharper on time and priorities. Personal life does take a toll.

As Editor,you have to sign off the final 130 pages on a certain day, no matter where you are and what you are doing. I have cleared the Journal from California to Palawan in the Philippines, from a hospital room during my father’s surgery during COVID to being in bed while I was hit by COVID. Journal comes with you like the tagline of a mobile network ad – wherever you go, the Journal follows. First, it seems like a responsibility, but after a while, you take it as part of your life! However, with age, perhaps priorities and, therefore, time giving changes — one has to spend time on health, taking care of older parents, etc., and, therefore, BCAJ life has to get budgeted somewhat after more than 25 years of volunteering!

Challenges of Editor:It’s a stream of challenges as I said before. Monthly timelines that cannot be breached as a starter! Then, there is creative challenge and administrative challenge too. You are responsible for both content and production. BCAJ gives a mix of articles every month. Rejection of articles is another challenge. Review of every article takes 30–45 minutes to suggest changes and do justice to a volunteer who has written and sent it. Yes, there are several reviewers; however, the Editor has to take the call and own up to that call. Often one has to talk to authors to shape a piece. Keeping the team in good humour is also a challenge when susceptibility to micro errors is a looming risk. I always was keen to expand the scope of the Journal with cartoons, surveys, a few features, adding technology and practice management into the index. These things take effort and constant dialogue with those who would contribute. Any activity that is outcome-based is always challenging. But it also makes you gather all your strengths and deliver. One has to live with the motto: You’ve got to do what you need to do in the time you’ve got.

Benefits of being Editor: You are in charge like a pilot, but also carry responsibility for 60 months, in my case. You see details with a sharper focus and also see the whole magazine with a broader vision. The Journal is the key deliverable of the society, and it is not outsourced. You have to think for months ahead. Arrange meetings to gather ideas and craft their implementation. You often get flack as there are people who may not agree with a view. You often get admiration and pats for expressing what people believe to echo their own voice. I would have never learnt to write very tightly, with more meaning than words if I were not Editor. The ratio of meaning to words should always be more than 1. I read so much almost daily. During the COVID lockdown, we brought out nine Special Articles on the impact of COVID. Creative benefits are perhaps the biggest benefit — to envision and roll out by taking everyone along.

Message to young writers: Editorial on Writing  which is a summary of much I have read on writing says it. One of the best ways to hone thinking is by expressing thoughts in words. Writing is the test of thinking. If you use AI for writing originally then your NI (Natural Intelligence) will vanish. Your own expression opens you to your core. It is not just writing about what is known, or compiling things succinctly, but often putting forth words that will awaken a ray of new meaning in the reader she never came across.

Peculiarity of BCAJ:There are a number of them.

a.    BCAJ is one of the first aggregators in professional journals — an aggregator of articles.

b.    A reader gets multiple viewpoints. One reads from a number of practitioners who bring their experience across.

c.    Broad spectrum collection of ideas and analysis from several fields is important as specialisation has limitations.
d.    I have seen BCAS would like to validate the integrity so far as possible of people who write and speak — intellectual and other perspectives.

e.    Some features collect the best reads and present it succinctly.

f.    It’s a great read for 30 days till you receive the next one.

g.    Reader develops analytical aspects, as she reads well-analysed topics.

The list is long!

Youngsters and BCAJ: It is not the age, but what a generation looks up to. If you admire a king — then you will be a warrior and a benefactor of people. If you admire a thinker — then you will be a thinker. It is all about values. I feel values are shaped much differently today, due to wide exposure. Often the shaping is less as there is way too much information that is worth nothing. For example, all the politics you see on TV for hours in a week often is just indigestion. So exposure to society, peers and what one seeks will decide whether they will be attracted to reading, to going deeper, rather than be a ‘consumer’ and ‘enjoyer’ — but more of a learner, going deeper. For every generation, their role models change. Money is quite central today for more and more people! It all depends as I like to say — do you want to create a great balance sheet or a great profit and loss? Reading creates that biggest asset — YOU — which falls in the balance sheet category.

key value is gathering expertise in one’s own field — to go to the bottom of things. Rather than buying from a consultant, and ‘consuming’ it, one would be better off ripping off information and connecting it to the situation. Some of what we read is not of immediate ‘use’, but I have seen it come in handy at some time when you have to connect many dots. The way the mind works is if you have a great wealth of knowledge and experience, you will make better decisions. There is a saying the eyes cannot see what the mind does not know.This is not taught in school and college, but one understands with time and inclination. In the beginning, it is towards one specific / chosen field, but then it becomes a trait where we learn to go deep and cut the crap in most situations.

Unique experience during Editorship: I saw some people were always so helpful, always so available. I saw others who won’t respond to a missed call (I am sure they did if it were a client). You see an array of professionalism.

The experience of imagining, designing, shaping the Journal during the 50th year was amazing. We had so many ideas that were generated at the first level. And then, we had to churn and arrange them sequentially. We had some great articles come forth. Ashokbhai Dhere wrote about two previous colleagues in the committee and three past Editors. Dastur Saheb gave an article for the opening journal. Interviews with Mr Y. H. Malegham, Zia Mody, Ishaat Hussain, Rakesh Jhunjhunwala, and more. It was a treat to work on how to draw the most from the time we got from luminaries.

Well, one cannot ignore goof-ups. Although I shouldn’t share all, here is one: During Mr Malegham’s interview, he received a call, and I fiddled with the phone that was recording to not record his conversation on the phone. After his call, I missed switching on the recording. I realised that part of the interview was not recorded after reaching the office. Mr Malegham was kind enough to get it typed and send answers to some questions after we sent him what we remembered from memory!

Everything expanded my ability to take on a lot and do what had to be done. It is great to be a mascot for something like the Journal. Two editors after my tenure told me that honestly, they were not sure whether I would be able to cope when I started. But they were pleasantly surprised at the end about the work that was done.During some part of my tenure, we got one Chartered Accountant member to draw cartoons as it was his serious passion. And in a few years, we had more than 200 cartoons in the Journal, which often spoke more eloquently than words would. These are some creative, memorable elements!

At the end of my tenure, I received letters from seniors like Dastur Saheb, stating that “I always look forward to reading your editorials – they not only comment on the most recent and topical matters but were very educative”. I think a pat on the back from seniors you look up to growing up, is a memory for the keeps.

I wish to end with what Richard P. Feynman said decades ago: “The only way to deep happiness is to do something you love to the best of your ability.”And if something you love is something that you believe to be greater than you, then the happiness is 10 times more!


1      Editorial, June 2022, BCA Journal

BCAS – Volunteering – Making a Difference

Dear Readers, BCAJ has completed over five decades of its illustrious journey. Publication of a monthly professional journal is a task in itself, as it entails wholesome responsibility and requires total commitment. BCAJ has had 10 editors so far. As the BCAS is celebrating its 75th year, it would be interesting to read what some of the editors have to share. In tune with the current Office Bearers’ Theme of “Change – Leaders – Charity” for the quarter ending December 2023, this issue carries a write-up by two of the editors who have shared their experiences of volunteering and leading the change. We hope that readers will find it interesting and youngsters will find it inspiring to volunteer with the highest degree of commitment and dependability.

SANJEEV PANDIT
Chartered Accountant
(Editor from August 2010 to July 2013)

 

I was aware of the Bombay Chartered Accountants’ Society since my articleship and used to occasionally read a few articles from the BCA Journal. Soon after qualifying as a Chartered Accountant, I became a life member of the BCAS. However, my association with the Journal began as the President of the BCAS in 2005–06. I was the Joint Editor from 2007 to 2010, with Gautam Nayak as the Editor, and then the Editor for three years from 2010 to 2013.

Once you become a part of the Journal team, the Journal actually grows on you, and even more, once you become its Editor. My immediate predecessor, Editor Gautam Nayak, is a person with mastery over the English language and is a voracious reader. It was a daunting task and a challenge to succeed him. But the support of the Editorial Board was always available.

At the start of my journey as the Editor, I was worried whether I would be able to identify appropriate topics for writing the editorial every month. But within a brief period, I realised that there were varied subjects, and it was an opportunity to share my views with the readers. I used to read with great interest the editorials of the late Ajay Thakkar, who was the Editor for about 10 years between 1990 and 2000, and that helped me in choosing topics for my editorials. I attempted to cover a wide canvas in my editorials by writing on wide-ranging topics such as the CA course and students, the introduction of Companies Act, 2013, retirement of Ratan Tata as the chairman of the Tata group, decision of the Supreme Court in the Vodafone case, Radia tapes, introduction of GAAR, plight of honest bureaucrats, reports of the then CAG Vinod Rai, Tax Accounting Standards, family-managed businesses, FDI in retail, etc. When readers appreciated an editorial or commented or responded by either supporting or countering the views expressed in the editorial, there was immense satisfaction and joy at having provoked thoughts amongst readers.

As the Editor, it was interesting to identify new authors and topics for articles. I recollect the article “Understanding Islamic Finance”. It was indeed a novel subject. Authors included a Commissioner of Income Tax (Appeals) and a retired Income Tax Ombudsman, apart from Chartered Accountants. Some of the authors have continued writing for the Journal. Editing the contents, particularly the articles, was always a delicate task. One had to take care that editing did not result in changing the style or views expressed by the authors. It was an enjoyable task to work with some of the authors who produced interesting articles. An article would sometimes go back and forth multiple times before it was finalised. I also tried to introduce ‘blind-fold peer review’ for articles. As theEditor, I had to read all the contents thoroughly, which gave me an opportunity to study subjects which were not part of my core practice. Over a period, I earnedthe trust of many of the contributors of featurescovering the digest of cases, and they gave me a free hand to edit the material to bring out the ratio of a decision clearly.

Selecting the contents of the Journal is a balancing act. On the one hand, there is a temptation to lean towards content that is immediately useful for Chartered Accountants in practice or employment. Such articles and features are like digests and guides. No doubt they have utility and attract readership. On the other hand, there are articles which are thought-provoking, introducing a new thought or sharing the experience and result of research. I always thought that our Journal had features that fulfilled the need for digests and references, and the articles should cover more serious content, which would help the readers broaden their perspective. Some features like ‘Closements’ and ‘Controversies’ are analytical and thought-provoking. At times, one had to reject a ‘good’ article only because it exceeded acceptable length, even if it was to be published in parts.

The Journal required an editor to devote substantial time, particularly at the end of each month. One had to respect the deadlines and work on that basis. I recollect once I had plans to travel, and ‘the dummy’ of the Journal was delivered only at late night the previous day. I had to halt the car for over 30 minutes off the highway to convey the corrections and changes to the printer. The printer was new, and the coordinator was also not so familiar with the requirements. In the initial months, this necessitated spending much more time editing each issue of the Journal.

Several factors decide the success of an issue of any magazine, particularly a professional journal. The quality of contents, effective presentation, proofreading, pagination, placing of advertisements, error-free printing and timely delivery to the readers — all contribute to the success. Only when one can consistently bring out issues of a journal fulfilling various criteria, can the journal earn a reputation as a quality publication. It requires teamwork and co-operation of everyone involved. It is purely because of the dedication of the team that the BCA Journal has achieved its present position.

My experience as the Editor of this prestigious Journal was truly exhilarating, memorable and enriching. I continue my association with the Journal as a member of the Editorial Board. Maybe it is now time to make room for younger minds to lead the pack!

Tightening the Book-Keeping Requirements: Amendments to the Companies (Accounts) Rules, 2014

Companies are required to maintain their books of account as prescribed in the Companies Act, 2013 (the ‘Act’). MCA issued an amendment to Rule 3 of Companies (Accounts) Rules, 2014 (‘Account rules’) relating to the maintenance of electronic books of account and other relevant books and papers to make the existing requirements more stringent. With this amendment issued in August 2022, Indian Government authorities seek to always have access to books of accounts of Indian companies, even if such books are maintained in electronic form on servers located outside India. The amendment was issued on 5th August, 2022, with no applicability date. The amended rules are effective from the date of their publication in the Official Gazette.

While the first year of the applicability of the amended rule is over, it is important for the companies as well as the auditors to understand the implications of this amendment. Non-compliance with this requirement may constitute non-compliance with the requirement of law in terms of Section 128 and impact the auditor’s assertion in ‘Report on other legal and regulatory requirement’ in Section 143 (3)(b) on maintenance of proper books of account as required by Section 128 of the Act.

Certain multinational companies have refused to provide government authorities access to financial data of Indian entities stored in servers outside India, which may have prompted the government to amend the Accounts Rules.

This amendment includes:

  • Books of accounts should remain accessible in India at all times so as to be usable for subsequent reference.
  • Back-ups of books of account and other relevant books and papers maintained in electronic mode (within or outside India) to be kept in servers physically located in India on a daily basis (Earlier: periodic basis).
  • Disclose annually to ROC the name and address of the person in control of the books of account and other books and papers in India (where the service provider is located outside India).

The above amendment is aimed at preventing any manipulation of the books of account of a company and to ensure that the same are readily accessible and backed up on a daily basis, where required.

ICAI has also issued an announcement, ‘Amendment in the Companies (Accounts) Rules, 2014 relating to the availability of books of account and other relevant books and papers maintained in electronic mode at all times and also details of person in control, if the service provider is located outside India’ in this regard which provides a comparison between the previous and revised requirements.

This article provides specific considerations for the companies and the auditors to comply with the revised requirements of the Act read with rules.

IDENTIFICATION OF RELEVANT BOOKS OF ACCOUNT

The first step is that the companies should identify and back up the documents which qualify as books of account and other relevant books and papers basis the definition under section 2 of the Companies Act, 2013.

Books of Account as per Section 2(13) of the Companies Act, 2013 includes records maintained in respect of –

  • all sums of money received and expended by a company and matters in relation to which the receipts and expenditure take place;
  • all sales and purchases of goods and services by the company;
  • the assets and liabilities of the company; and
  • the items of cost as may be prescribed under section 148 in the case of a company which belongs to any class of companies specified under that section;

Books and papers and books or papers as per section 2(12) of the Companies Act, 2013  include books of account, deeds, vouchers, writings, documents, minutes, and registers maintained on paper or in electronic form.

It is important to note that the backup should include all the documents including underlying support maintained in electronic mode.

The companies will be required to take steps to ensure that there is a server physically located in India for taking the backup of books of account on a daily basis.

CONTROLS TO BE IMPLEMENTED AND OPERATED BY THE COMPANY

It is also important for the companies to ensure that adequate controls have been established for backup to be taken on a daily basis:

  • Controls to ensure that backups are taken digitally on the designated server physically located in India.
  • Controls to ensure that backups are taken locally in India and not overseas.
  • Controls to ensure that backups taken are in a readable format and can be displayed or read when required.
  • Controls to ensure access to the backup logs is restricted to appropriate individuals.
  • Controls to ensure that appropriate actions are taken in case of a backup failure.

OTHER CONSIDERATIONS

The requirements prescribed under Rule 3 are applicable to all companies having their servers in India or outside India. Offline media of backups such as tapes, CDs, drives, etc. may not meet the requirements of the amended provisions of the rules.

The hard copy printouts of such backup or retaining back in pdf (or similar format) will not meet the requirements of the amended Rules.

The backup of books of account and other books and papers maintained under the proviso to Rule 3(5) should be maintained for at least 8 preceding financial years in line with the requirements under section 128(5) of the Companies Act, 2013.

AUDITORS’ CONSIDERATIONS

Considering there is no applicability date given in the amendment rules except that the amended rules are effective from their date of publication in the official gazette, auditor reporting obligation is triggered for financial statements which include any period on or after the effective date of the amendment i.e.,5th August, 2022.

The revised requirements will not trigger reporting requirements in cases the period covered by financial statements has ended before the effective date even if the auditor’s report date is after the effective date.

Section 143(3)(a) to the Companies Act, 2013 provides that the auditor’s report should state whether proper books of account have been kept by the company and also state any qualification, reservation or adverse remark relating to the maintenance of accounts and other matters connected therewith [Section 143(3)(h)].

The expression ‘proper’ means appropriate, in the required manner, fit, suitable, apt.

The auditors will be required to check whether backups of the books of account and other books and papers of the company maintained in electronic mode have been retained on a server located in India with backups taken on a daily basis instead of back-ups on a periodic basis — as provided earlier.

The auditors may test the IT General controls such as security and access, computer operations, system development and system changes basis the guidance provided under SA 315, ‘Identifying and Assessing the Risks of Material Misstatement Through Understanding the Entity and its Environment’ and SA 330, ‘The Auditor’s Responses to Assessed Risks’ and Guidance Note issued by ICAI on Audit of Internal Financial Controls Over Financial Reporting.

The auditors may also perform tests of controls over computer operations which could include:

  • evaluating the backup and recovery processes,
  • reviewing the process of identifying and handling computer operations, and
  • if applicable, control over job scheduling which directly/ indirectly impacts the periodicity of backups.

Auditors should also test the IT environment maintained by a third-party service provider in case the books of accounts of the company are maintained by such service providers.

KEY ASSERTIONS THAT ARE TO BE EVALUATED AS PART OF TESTING

  • Backups are taken daily.
  • Backups are taken on the server. Copies of printouts / PDFs as backups will not meet the requirements.
  • Backups are taken on the server physically located in India.
  • Backups are readable as books of accounts and records in a legible form. This means that a front end would be required to display in readable/legible form.

THIRD-PARTY SERVICE PROVIDER

Some companies may employ third-party service providers to maintain their books of accounts in electronic mode, for example, on cloud is also covered by the new requirement.

Rule 3(6) of account rules requires the company to intimate the following to the RoC on an annual basis at the time of filing of financial statements:

  • the name of the service provider;
  • the internet protocol address of the service provider;
  • the location of the service provider (wherever applicable);
  • where the books of account and other books and papers are maintained on the cloud, such as the address as provided by the service provider.
  • details of the name and address of the person in control of books of account and other books and papers in India.

NON-COMPLIANCE IMPLICATIONS

Section 128(6) provides for the penalty on the specified persons if the requirements of section 128 are not met. For example, not taking daily backups, books of accounts not accessible in India on a daily basis,etc. The company needs to determine the penal provisions and the auditor may consider the reporting implications.

If the auditor identifies an exception, the auditor should report such a matter under section 143(3)(b) under the heading ‘Report on other legal and regulatory requirements’ of the Act. For example, backups are not taken on a daily basis but taken at the year-end or on the date of the auditor’s report.

APPLICABILITY TO REPORTING ON CONSOLIDATED FINANCIAL STATEMENTS

The auditor is required to comment on this matter both in the case of standalone financial statements and consolidated financial statements. However, while reporting on consolidated financial statements, the auditor may observe that certain components included in the consolidated financial statements are (a) either not companies under the Act, or (b) some components are incorporated outside India. The auditors of such components are not required to report on these matters since the provisions of the Act do not apply to them. ICAI has issued similar guidance in its implementation guide on Reporting under Rule 11(g) of the Companies (Audit and Auditors) Rules, 2014.

ILLUSTRATIVE REPORTING

The auditors of various listed companies in the audit report for the year ended 31st March, 2023, have included a comment in the Auditor’s report under the heading ‘Report on other legal and regulatory requirements’ in case of non-compliance with the aforesaid requirements. Some of the examples are as below:

MODIFIED REPORTING – STANDALONE AUDITOR’S REPORT

“In our opinion, proper books of account as required by law have been kept by the Company so far as it appears from our examination of those books except that the backup of all books of account and other books and papers maintained in electronic mode has not been maintained on servers physically located in India on a daily basis.”

MODIFIED REPORTING – CONSOLIDATED AUDITOR’S REPORT

In our opinion, proper books of account as required by law relating to the preparation of the aforesaid consolidation of the financial statements have been kept so far as it appears from our examination of those books and reports of the other auditors, except that with respect to certain entities as disclosed in note XX to the consolidated financial statements, the back-up of books of account was not kept in servers physically located in India on a daily basis as stated in Note XX to the consolidated financial statements.

UNMODIFIED REPORTING

In our opinion, proper books of account as required by law have been kept by the Company so far as it appears from our examination of those books [and proper returns adequate for the purposes of our audit have been received from the branches not visited by us].

BACKUP REQUIREMENTS FOR AUDIT TRAIL (EFFECTIVE FROM 1ST APRIL, 2023, ONWARDS)

The Companies Accounts Rules, 2014 have also been amended to introduce the requirement of an audit trail. Effective 1st April, 2023, onwards, every company which uses accounting software for maintaining its books of account, shall use only such accounting software which has a feature of the recording audit trail of each and every transaction, creating an edit log of each change made in the books of account along with the date when such changes were made and ensuring that the audit trail cannot be disabled.

The Companies (Audit and Auditor) Rules, 2014 have been correspondingly amended wherein auditors are now required to report, as part of the auditor’s report (in the section ‘Report on Other Legal and Regulatory requirements’, as to whether,

(a)the accounting software used by the company being audited has the feature of recording audit trails (edit logs),

(b)the audit trail feature was operational throughout the financial year and had not been “tampered” with, and

(c)such audit trails have been retained for the period as statutorily prescribed.

The MCA has notified that the aforesaid amendments will be effective from 1st April, 2023, which implies that the accounting software employed by companies will need to be compliant with the Accounts Rules from FY 2023-24 onwards.

The revised requirements for back up of books of account and other books and papers of the company maintained in electronic mode may include audit trail records as well since an audit trail is required for books of account records and the audit trail records would fall under the definition of books of account and other books and papers. While ICAI or MCA may issue a clarification on this aspect, reference may be made to paragraph 20 of the Implementation Guide on Reporting under Rule 11(g) of the Companies (Audit and Auditors) Rules, 2014 which requires that the company should establish controls to ensure that periodic backups of the audit trails are taken and archived as per the statutory period specified under Section 128 of the Act.

BOTTOM LINE

The rules have been amended with a view to giving more stimuli to the accessibility of books and papers maintained in electronic mode by companies. The auditor should also assess the requirement as part of their assessment of Non-compliance with laws and regulations and reporting requirements under Standards on Auditing.

BCAJ December 1969

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BCAJ December 2007

The beginning of the end of US GAAP

Accountant Abroad

The International Federation of Accountants (IFAC) has voiced
strong opposition to what it sees as attempts to radically change or suspend the
use of fair value accounting without proper due process.


The federation warns against making changes at a national or
regional level which would worsen reporting differences and further confuse
financial markets, resulting in a lessening of confidence in financial
reporting. This would be exact opposite of what is required in current
circumstances. Reducing transparency is not the answer . . . . and it will not
serve the interests of investors.

IFAC believes the additional guidance from the International
Accounting Standards Board (IASB) and the United States Financial Accounting
Standards Board, as well as the International Auditing and Assurance Standards
Board in its Staff Audit Practice Alert, Challenges in Auditing Fair Value
Accounting Estimates in the Current Market Environment
, has been very
valuable and will contribute to the public interest through more consistent
application of the standards.

Investors require a single set of accounting rules but a
current European Commission review of fair value accounting threatens to
undermine transparency and comparability. The Commission is due to host a
meeting in Brussels to discuss accounting reform, including further relaxation
to fair value.

Transparency, comparability and consistency in financial
reports is of utmost importance to the investor. In the view of the Investment
Management Association, making changes suggested by the Commission by the end of
October poses a risk that this may not be maintained and that such changes could
result in unhelpful reporting. Even though the current credit crisis requires
swift measures by governments and regulators, fundamental changes in accounting
should be implemented only after due process and the involvement of all
stakeholders.

The International Accounting Standards Board agreed to rush
through changes that allowed some valuations of some financial instruments —
securities — to duck a fair value calculation by being reclassified from ‘held
for sale’ to ‘held for investment. The European Commission eventually endorsed
this move in mid week, but only after considering pushing through changes that
would have allowed financial institutions to reclassify a much wider spectrum of
financial assets, including derivatives.

The US Securities and Exchange Commission is to take
mark-to-market accounting to task in a series of roundtables that will examine
the role fair value played in the current market turmoil.

The first roundtable takes place on 29 October and consists
of two panels, one discussing the relationship between fair value and the
financial crisis that has enveloped the major banks and the second examining
potential changes to the current accounting models.

Fair value has been lambasted by financial figureheads and
politicians in the US, UK and Europe for intensifying the effects of the credit
crunch, with many calling for the model to be suspended during the current
turmoil.

(Source : www.accountancyage.com)

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From The President

From the President

From the President

Dear Esteemed Readers,

This year’s Deepawali was remarkable, with President Barrack
Obama visiting India. There were many firsts associated with his visit. He is
the first US President to visit India in his initial term, first to spend so
much time in India, first to visit Mani Bhavan in Mumbai and the first US
president to say "Jai Hind" in the Indian Parliament. Tonnes of paper have been
used up by newspapers and hundreds of hours of discussions have been aired by TV
channels in analysing what were the takeaways for India on Obama’s visit. In my
view, the biggest takeaway for India is President Obama provoked us to realise
our own intrinsic strength, as he rightly regarded India as the "rising global
power".

He said: "India is an ancient civilisation of science and
innovation. A fundamental faith in human progress
. This is the sturdy
foundation upon which you have built ever since that stroke of midnight, when
the Tricolour was raised over a free and independent India. And despite the
skeptics who said that this country was simply too poor, too vast, too diverse
to succeed, you surmounted overwhelming odds and became a model to the world.
India has succeeded, not in spite of democracy; India has succeeded because of
democracy."

I think this revelation is the biggest-ever gain for India.
Is it not an irony that outside observers can perceive our strength better than
us? I am reminded of Dr. Abdul Kalam who said, "Why are we in India so
embarrassed to recognise our own strengths, our achievements? We are such a
great nation. We have so many amazing success stories but we refuse to
acknowledge them. Why? India must stand up to the world. Because I believe that
unless India stands up to the world, no one will respect us. Only strength
respects strength. We must be strong not only as a military power but also as an
economic power."
The Indian leadership must recognise this and negotiate
with other nations from a position of strength; be it talks with neighbours or
trade negotiations with other countries of the world.

After the stupendous success of the Commonwealth Games, India
broke its own performance record at the 16th Asiad Games in Guangzhou, ranking
6th and bagging 64 medals, including 14 gold.

However, with the dazzling opening and spectacular closing,
together with a record win of 416 medals including 199 gold, China proved that
it is simply super in playing games as well as organising them. The major
reasons for such a poor performance by India in contrast with a one billion plus
population are the lack of good sports facilities and recognition of merit.
Consequently, parents do not encourage children opting for a sports career. A
majority of our sports persons are part-timers, with some other main occupation,
resulting in a lack of professionalism. The handful of people pursuing sports as
their career become victims of corruption and red-tapism. I hope that the way
the states have started competing with each other in good governance; they will
compete in sports as well. If corporate India patronises sports in a big way, a
lot can still be achieved.

The recent results of the Assembly elections in Bihar have
proved that "Good Governance is Good Politics". Earlier, Governments in Gujarat
and Chhattisgarh returned to power, surmounting anti-incumbency sentiments, by
securing positive votes as a reward for development and good governance. The
restraint shown by people, post the Ayodhya verdict, and the use of the Right

to Information Act to unearth scams and bring accountability in administration
shows that people are rising above the politics of caste, creed and religion.
The people of India are interested in peace and prosperity.

We are living in an era of scams. Each day a new scam
surfaces — bigger than the preceding one. First CWG, then Adarsh, 2G spectrum,
Cidco Land deal and now, "loan-mela" by LIC Housing Finance and others.

In a path breaking development, India has revised its
bilateral tax treaty with Switzerland whereby Indian authorities would be able
to obtain information about account-holders in Swiss banks from January 2011.
Under the revised pact, India will be able to obtain information not only in
case of tax frauds, but also in cases of tax evasion.

In respect of activities by the Society last month, members
can refer to the section "Society News". Nonetheless, the more notable amongst
them were the number of webinars on XBRL, the first ever three-day intensive
study course on XBRL from 12th to 14th November 2010, and the two-day course on
Direct Taxes Code on 26th and 27th November 2010. All the programs elicited
overwhelming participation.

The DTC course began with homage to the people who lost their
lives in the ghastly terror strike on Mumbai on 26th November 2008. A lot needs
to be done not only to heal the wounds of those who were afflicted but also to
prevent their recurrence. The solution is aptly found in the BCAS logo which
reads, "uk Ò¸ke pLrh txzr" meaning "the vigilant have no fear". We must be
vigilant not only in making our leaders accountable and working towards safety
and security of the masses but also by contributing our might in helping them
achieve this. Then and only then we would be able to see India as dreamt by the
great poet Rabindranath Tagore who wrote:

Where the mind is without fear and the head is held high

Where knowledge is free

Where the world has not been broken up into fragments

By narrow domestic walls

Where words come out from the depth of truth

Where tireless striving stretches its arms towards
perfection

Where the clear stream of reason has not lost its way

Into the dreary desert sand of dead habit

Where the mind is led forward by thee

Into ever-widening thought and action

Into that heaven of freedom, my Father, let my country
awake

Let this be our prayer and motto for the ensuing decade.

Last but not the least, season’s greetings and best wishes
for a prosperous 2011!

Regards,


Mayur Nayak

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From The President

From the President

Dear BCAJ Lovers,

As I begin writing this month’s President’s Page, the news
of the sad, sudden and premature death of Mr. Rahul Roy, a past president of
the ICAI at a young age of 46 was received by me with shock and sorrow. He
expired as a result of cardiac problems. This news comes close on the heels of
the news of the passing away of Mr. Ranjan Das, the CEO & MD of SAP India —
again at a very young age of 42 years. He died of a heart attack.

I did not know either Mr. Roy or Mr. Das personally. Yet,
their passing away has disturbed me. The reason being that what happened to
them (and what will now happen to their family members) can happen to any one
of us. Today, most people and specifically professionals are living highly
stressful lives and there are no signs of any changes happening even in the
distant future, leave aside the near future. I had already referred to this
aspect in the last month’s message. But the recent tragedies have prompted me
to communicate again on the same topic.

What are the typical lifestyles of most of us today ? In
large cities like Mumbai, I perceive the following scenarios :




  •  Physical stress caused by several factors — long
    working hours, very long and tiresome travel time (from home to office and
    back); uncomfortable physical working conditions (including cramped work
    spaces leading to bad body postures; several hours of working on computers;
    lack of physical exercise, irregular eating habits; long gaps between meals;
    frequent travel plans; lack of adequate sleep.



  •  Mental stress caused by constant work pressure;
    unplanned work schedules leading to haphazard time management; always having
    to deal with deadlines;



  •  Stress caused by the dilemma of witnessing
    corruption through consistent interaction with Govt. departments and
    taxpayer non-friendly actions and behaviour of bureaucrats.


The above are, of course, only a few important aspects.
There would be many more. But the main point to be noted is that, in general,
most of us are facing at least some, if not all, of the above situations in
our lives today.

Is there anything that we can do to deal with the above ?
Let us not forget that today, we are trying to cope with and adjust our lives
to this constant stress. But our children are born and are living in this
environment from day one. For them, stress will become a way of life from
birth itself. This is a very dangerous and scary scenario. Let us all strive
to change our life-styles. Slowing down the pace of life, reducing the number
of working hours, spending more time at home and also doing regular physical
exercises are a few basic things that we must work on immediately. The time to
act is now. There is no time left to delay this any longer. Can we not work
from homes (technology is there to allow us to do so) on at least 1-2 days a
week instead of travelling long distances ? Can we spare one day in a month to
get rid of useless papers from our table-top and cabinets, so that our offices
are not unduly cluttered up ? We sit at our office desks for almost 8-10 hours
a day. Have we spent any time and efforts to find out whether the seating
arrangement is suitable to our health ? Is your chair comfortable ? Is
the distance between your head and your computer screen adequate ? Are your
arms and wrists in the right position while you type on your keyboards ?
Nothing that I have mentioned involves rocket science. It’s just that we
simply don’t feel it is important enough or urgent enough to pay attention to.
Most readers would be paying for annual maintenance contracts for their
computers, fax machines and other equipments. What about the regular
maintenance of the most complicated equipment in the world — the human body ?

If you agree with me, please refresh your memory and
recollect what happens when stress reaches breaking point. Hopefully, this
will jolt some of the readers into action.

I guess, it’s time to move on to less morbid topics. The
IFRS month of the BCAS was kicked off on 25th November by Mr. N. P. Sarda, a
past president of ICAI and a person who must have taught thousands of CA
students what costing means (I remember standard costing even today, only
because he made it appear to be so simple). It’s always a pleasure to hear
him. He was at his best on 25th when he spoke on IFRS. The IFRS RRC that we
have arranged in mid December has received an overwhelming response. I am glad
that we took the decision to devote an entire month for IFRS-related events. I
thank the members of BCAS who have supported the Society at all times and have
made our programmes so successful.

One year has elapsed since the dastardly terrorist attacks
in Mumbai on 26th November, 2008. The memories of those 3 eventful days still
haunt most Mumbaikars even today. Has anything really changed since then ?
Have our authorities learnt any lessons ? Are we any bit safer today than what
we were a year back ? I wonder. We all need to get involved and be a catalyst
to bring about change in society.

Social networking sites have become a rage nowadays. Not
only youngsters but even seniors are taking to these sites in thousands every
day. The BCAS recognises the power and the potential of such sites in bringing
people from all over the globe together. I am determined to make BCAS known to
Chartered Accountants across the world through the medium of such sites. I
seek your support in harnessing this extremely powerful technological tool to
unleash the power of networking amongst professionals. Let us all get together
and form a cohesive force that thinks together, acts together and brings about
social and economic changes for the improvement of our society in general and
our laws in particular. A CFO of a company recently wrote to me after reading
my previous month’s President’s Page. He complimented me on what I had written
but commented that, as usual, there was nothing in the message relating to
members in industry. I agree with him and will devote some time from now
onwards in making efforts to draw CAs in industry into the BCAS fold. How I
will go about this and when I would achieve this — I am not sure. But what I
do know is that where there is a will, there is a way.

Finally (and I know that the Editor of BCAJ is going to be
pleased with me for restricting the size of this month’s message to about
1,000 words !), I hope that readers have voted in the ICAI elections. At the
BCAS, we tried our best to make a difference in these elections. Let us hope
that we get dynamic leaders who will lead the profession forward into a new
horizon, leaving behind the inglorious moments that we have been witnessing
for the past few months. Eternal optimism ? May be !


From The President

From The President

“If you think for positive things in life, you will find
them.”

Over the last few months I have got used to hearing gloomy
predictions, meeting people with worry and concern writ large on their face, and
walking into business meetings which discuss a bleak future. So, when I bumped
into an old friend from the IT sector beaming from ear to ear, I was pleasantly
surprised. I enquired whether he had got a promotion. “No, in fact I have been
asked to take long leave, possibly some time before they show me the door !” he
laughed, “But I have never enjoyed life more than I have in the last month. I
just learnt what a great family I have. I have experienced a number of joys
because I stopped to pause and ponder something which I have not done in the
last ten years. As for my job, I will find a new one when I lose the one that I
have.” His words really set me thinking. I marvelled at his attitude. Any other
person would have grieved that he was about to lose his job and here was my
friend having a whale of a time with his family. It was all due to a positive
attitude.

If one really makes an analysis, the economic slowdown has a
large number of positives. The first is that we will all start to think and act
rather than react. When life is going at full pace we all tend to react to
situations; when things slow down we will have to be proactive and make things
happen, a habit which many of us have forgotten in the recent past.

The second positive is a welcome change in the mindset. The
situation has now forced us to do away with the linear mode of thinking. The
thought process of most people, especially those who belong to our profession is
to rely on precedent and predict the future. We tend to bench-mark everything on
past performance and past experience. Recent events have proved that the past is
not necessarily an indicator of future. Once we make a break from the past, we
will recognise and rediscover our ability to innovate. Some of the business
failures in the United States have not been on account of the financial crisis
but a sheer failure to innovate and deliver the products that the consumer
needed.

Another very significant positive fallout of the financial
turmoil is the recognition of the need to save in generation next. I saw this
manifestation when I visited a young relative of ours who is working with a
large KPO. A management graduate, she used to try and convince me that spending
drove economic activity and therefore needed to be encouraged. I was therefore
surprised to learn that she had decided not to go on her annual foreign jaunt,
but would settle for a short holiday in Kerala. I enquired as to whether her job
was safe. “Yes it is as of now, but who knows ?”

Having dwelt upon all these positives on the human front, I
think the single most important lesson that we have learnt is that the western
world is not infallible, and the United States is certainly not. For long, a
large part of the world has looked upon the U.S. as a powerful, super rich
saviour, whose actions were to be emulated. For more than six decades the US has
played the role of Big Brother. The follies that the institutions in the US and
the rest of the western world have committed have not only been witnessed by the
rest of the world, it is likely to suffer from their acts of commission and
omission in the next few years.

On the professional front, I believe this slowdown is a great
opportunity to sit down and introspect. Many of us have been accepting the
unending flow of professional work without paying heed to the creaking
infrastructure and the strain on our existing systems. Some of the problems the
profession has been facing are on account of lack of training of articled
students and staff.

In the next few years the government will have to increase
its spend on infrastructure in general, while we must invest our time and effort
enhancing the knowledge-base of our staff, remembering to upgrade our own
skills. Multidisciplinary firms are a reality. We must explore these
possibilities and network. When the inevitable turnaround comes, we must be
ready to seize all opportunities.

We must end 2008 on a cheerful note. Do not let the prophets
of doom bother you. Go on a holiday with your family and friends. If you are in
‘Aapli Mumbai’, enjoy whatever ‘winter’ the city offers you. Goodbye 2008 and
welcome 2009.

With warm regards,

Anil Sathe

P.S. :

As this issue goes to the press, the country has been facing
one of the gravest terrorist attacks. In the past two days we have seen in the
media, exemplary courage, and supreme sacrifice from the security personnel,
hotel staff, ordinary citizens, who beyond all were Indians. We salute these
brave individuals. We only hope that the powers that be, recognise this
sacrifice and act quickly, decisively. It is a time that we stand united and
show the world that our buildings can be attacked and weakened but our spirit
can never be. We the BCAS family are with those who lost their near and dear
ones. For those who are battling for their lives, we pray for a speedy recovery.
We pledge our support in the huge tasks that lie ahead. It is our duty not only
as professionals, intellectuals, but as concerned citizens of this great
country. We must demand competent governance from those in power. If we all
contribute our mite, India will emerge as a strong, vibrant nation.

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ICAI And Its Members

ICAI and its Members

1.
Companies Bill, 2009 — Accounts and Audit :


Companies Bill, 2009, was
introduced in the Parliament on 3-8-2009. It was referred to the Standing
Committee for Finance on 9-9-2009. The Report of the Finance Committee dated
26-8-2010 was presented to the Parliament on 31-8-2010. Based on this report the
Companies Bill is being modified by the Ministry of Corporate Affairs. The
modified Bill is likely to be discussed and adopted by the Parliament in the
Budget Session in February-May 2011. Some important changes, relating to
accounts and audit, as suggested by this Committee, are as under.

(i) Clause 117(3) of the
Bill provides that the accounts of subsidiary companies should be consolidated
in cases of all companies. The committee has suggested that unlisted companies
be exempted from this requirement.

(ii) Clause 118 of the Bill
provides that the Central Government shall constitute ‘National Advisory
Committee on Accounting and Auditing Standards’ (NACAAS) to advise the
Government on accounting and auditing polices and standards for adoption. The
committee has welcomed this provision and observed that NACAAS should be
institutionalised not only as a body for setting up auditing standards, but also
as a quasi-regulatory body for generally supervising the quality of audit
undertaken. Under clause 126(10), the Central Govt. has been given authority to
notify the auditing standards in consultation with NACAAS and the auditors will
have to comply with these standards. This provision, if implemented, will
restrict the authority of ICAI to issue the auditing standards.

(iii) The committee has
suggested that a new clause be added in the Bill to provide for appointment of a
Chartered Accountant or a Cost Accountant for conducting Internal Audit of the
books of accounts of specified classes of companies. The Government should
prescribe the Rules about the manner in which Internal Audit should be conducted
and reported.

(iv) Clause 123 of the Bill
provides that a company shall appoint an individual or a firm as an auditor at
the annual general meeting. The committee, in its report, has suggested the
following far-reaching changes in this clause, which will affect the entire
auditing profession :

    (a) An individual Chartered Accountant or a firm of Chartered Accountants shall be appointed as auditor for not more than five consecutive years.

    (b) An Individual auditor who has completed a five year term, shall not be reappointed as auditor for the next three years in that company.

    (c) A firm of auditors who has completed a five years’ term, shall not be reappointed as auditor in the same company for the next five years.

    (d) In the case of the firm, being auditor of a company, the auditing partner should be rotated every three years. The auditing partner rotated, as above, shall not be eligible to be the auditing partner for audit of the same company for the next three years.

    (e) NACAAS should be entrusted to develop and prepare a comprehensive list of audit firms over a period of three years. Once this list is ready, it will be mandatory for any company to appoint an auditor from this list only. During this interim period, companies can appoint their auditors on their own.

(v) The Audit Committee has
to ensure and monitor that the independence criteria has been fulfilled by the
auditor of the company throughout the year.

(vi) The auditor who has
resigned or is proposed to be removed before the expiry of his term will have to
file with the company and the ROC the prescribed form giving reasons and other
relevant facts. The matter about resignation or removal of the auditor, with
reasons recorded by him, will have to be first considered by the Audit
Committee. The Board of Directors shall consider the recommendation of the Audit
Committee, and thereafter, with the approval of the General Meeting accept the
resignation of the auditor and appoint another auditor. In case of removal of
auditor, before expiry of his term, special resolution of General Meeting will
be required.

(vii) Clause 125 of the Bill
provides for remuneration of Auditors. It is suggested by the committee that the
notice for the General Meeting shall give justification for payment of the
amount of remuneration proposed. Further, the shareholders, while approving the
remuneration of Auditors, will have to take into consideration the net worth and
turnover of the company. If this suggestion is implemented, the present practice
in some companies to provide in the resolution that the audit fees payable to
Auditors will be fixed by the Board of Directors will have to be discontinued.

(viii) Clause 127 of the
Bill provides that a statutory Auditor of the company shall not render any other
services viz. (i) Accounting, cost accounting and book keeping, (ii) Internal
Audit, (iii) Design and implementation of any financial and cost information
system, (iv) Acturial services, (v) Investment advisory services, (vi)
Investment banking services, (vii) Rendering of outsourced financial services
and (viii) Management services. As regards other services, relating to tax
audit, tax representation, tax advisory services, etc. approval of Board of
Directors or Audit Committee will be required. The committee has suggested that
the statutory auditor of holding company also should not render the above
services listed in Clause 127 to a subsidiary company.

(ix) The committee has
suggested that Secretarial audit report should be attached to the financial
statements by companies exceeding certain threshold limit of paid-up share
capital.

(x) Clause 130 of the Bill,
after suggestion of the committee, provides for the following punishment for
contravention of certain provisions by the Auditors :

(a) If the auditor contravenes the provisions of Clauses 126, 127 and 128 dealing with powers and duties of auditors and compliance with auditing standards, rendering other services and signing of audit report, he shall be punishable with imprisonment for a term up to one year and with fine ranging from Rs.50,000 to Rs.25 lacs or with both.

(b)    On conviction as above, the auditor will be liable to refund the remuneration received by him to the company and also pay damages for loss arising out of incorrect or misleading statements in the audit report.

(c)    In the case of audit by a firm, if it is proved that the audit partner or partners have acted in a fraudulent manner or abetted or colluded in any fraud by, or in relation to, or by, the company or its directors or officers, the civil or criminal liability in any law shall be of the audit partner or partners as well as the firm jointly and severally.

(xi)    As regards cost audit, the committee has suggested that Clause 131 of the Bill should be suitably amended and a Cost Auditor should be appointed by the shareholders at the AGM in the same manner as statutory auditors.

Some of the above suggestions of the committee, if accepted by the Government and enacted by the Parliament, will have far-reaching consequences on the practising members of our profession. Some of the provisions undermine the autonomy of our Institute granted to us six decades ago. It is surprising that no serious protest has been made by our Institute or the elected representatives in the Council. No public debate has been generated and our members are not aware about the implications of these far-reaching changes likely to be made in the company law in the next year.

2.    Special Loan Scheme of Corporation Bank for our Members:

The Committee for Capacity Building of CA Firms and Small & Medium Practitioners, ICAI, has taken a major initiative to arrange financial assistance to all members in practice/firms in the form of specially designed loan scheme through Corporation Bank. Under this scheme, eligible Chartered Accountants can avail finance for setting up offices, including cost of furniture/ fixture/office equipments — computers and other accessories. The scheme would also enable Chartered Accountants to finance a part of working capital for building their profession and would also take care of the needs of fresher (CAs with experience below three years).

Members and firms are requested to avail the benefits of this loan scheme. For further details, please contact the nearest branch of Corporation Bank.

    3.    Special programme through video conferencing mode:

    The Committee for Members in industry of the Institute of Chartered Accountants of India provides opportunity to employers to interact with newly qualified Chartered Accountants providing a cost effective mode of recruiting newly qualified Chartered Accountants.

    Special placement programme is a step ahead as an extension to the same programme, but with a different objective. For the first time, CMII has taken an initiative to organise a separate special placement programme through video conferencing mode for Chartered Accountants for getting placed, not only within the country, but also for taking up jobs abroad. Many CAs are providing their services to organisations in Gulf Council Countries/Middle East. To facilitate employment of Chartered Accountants in the GCC/Middle East, CMII of ICAI is organising a special placement programme.

    This programme would enable corporates working in Gulf Council countries (GCC)/Middle East to recruit Chartered Accountants through video conferencing mode from Chennai, Kolkata, Mumbai and New Delhi centres. (Refer P. 807 of C.A. Journal for November, 2010).

    4.    Online Articles Placement Portal:

    The Board of Studies has introduced an optional campus placement scheme for selection of Articled Assistants by CA firms. The pilot campus placement programme was held in Delhi in August 2010 for the CA firms having their HOs/Branch Offices in Delhi/New Delhi and for eligible students who would like to service their articles in CA firms in Delhi/ New Delhi. Considering the good response, positive feedback and requests received from both CA firms and students, it has been decided to start an Online Articles Placement Portal — http://bosapp.icai. org from 5th October, 2010 to facilitate placement of Articles in CA firms on an all-India basis. Eligible candidates and CA firms can avail of this facility and register themselves online through the portal. The candidates shortlisted by CA firms would be informed by email through the portal, to appear for interviews/interactions at their respective offices, on the designated date and time. (Refer P. 690 of C.A. Journal for November, 2010).

ICAI And Its Members

1. Disciplinary case :

    In the case of ICAI v. Shri R. K. Tayal, the Bank had complained that it had sanctioned loan of Rs.630 lacs to one of its clients (Company) for its expansion- cummodernisation project. As per the terms and conditions of the sanction, the Company was to bring about Rs.135 lacs by way of promoter’s contribution. While requesting for disbursement of the sanctioned amount, the Company stated that it had already spent Rs.147.21 lacs for the project and, in support of this, it submitted a certificate from the member. In this certificate it was stated that the Company had already spent Rs.147.21 lacs for the project. Based on this certificate the Bank disbursed loan of Rs.315 lacs. In the above certificate the member had stated that certain payments were made which was found to be not correct. Hence, the Complainant Bank alleged that the member had not verified the records properly before issue of the certificate and that the said certificate did not mention about the end use of the funds.

    The Disciplinary Committee, after examining the evidence, submitted a report to the Council that the member was guilty of professional misconduct under clauses (5) to (8) of Part I of Second Schedule to CA Act (Gross negligence in performance of professional duty). This finding was accepted by the Council and it recommended to the High Court that the name of the member be removed from the Register of Members for 3 months.

    In its judgment, the Delhi High Court has held that the member was grossly negligent in his professional duties in giving the certificate to the Bank without proper verification of the records. The High Court observed that the lack of responsibility displayed by the member clearly showed that he had acted in a manner unbecoming of a Chartered Accountant. The High Court further observed that there has to be some degree of integrity and probity which is expected of a Chartered Accountant who is regularly concerned with the financial transactions and on the basis of whose recommendations and certificates, financial institutions, banks, etc. disburse loans or enter into other financial transactions. With these observations the High Court has accepted the recommendation of the Council to remove the name of the member from the Register of Members for 3 months (Refer page 737-738 of CA Journal for November, 2009).

2. Some ethical issues :

    The Ethical Standards Committee of ICAI has issued the following clarifications on some ethical issues in the form of questions and answers for the benefit of members.

        (i) Q. Can a Chartered Accountant in practice accept original professional work emanating from the client introduced to him by another member ?

        Ans. : A Chartered Accountant in practice should not accept the original professional work emanating from a client introduced to him by another member. If any professional work of such client comes to him directly, it should be his duty to ask the client that he should come through the other member dealing generally with his original work.

        (ii) Q. Can a member in practice solicit clients or professional work by advertisement ?
        Ans. : The CA Act prohibits a member in practice from soliciting clients or professional work either directly or indirectly by circular, advertisement, personal communication or interview or by any other means.

        However, there are following exceptions to it :

    (i) A member can respond to tenders or enquiries issued by various users of professional services or organisations from time to time and securing professional work as a consequence.

    (ii) A member may advertise changes in partnerships or dissolution of a firm, or of any change in the address of practice and telephone numbers, the advertisement being limited to a bare statement of facts and consideration given to the appropriateness of the area of distribution of the newspaper or magazine and number of insertions.

    (iii) A member is permitted to issue a classified advertisement in the Journal/Newsletter of the Institute intended to give information for sharing professional work on assignment basis or for seeking professional work on partnership basis or salaried employment in the field of accounting profession provided it only contains the accountant’s name, address, telephone, fax number and e-mail address.
        (iii) Q. Whether sponsorship or prizes can be instituted in the name of Chartered Accountants’ firms ?

        Ans. : As per the CA Act it is not objectionable to institute prizes in the name of the individual Chartered Accountant and also in the firm’s name provided the designation ‘Chartered Accountant’, is not indicated in the prize and the clause relating to advertisements and publicity are complied with.

        (iv) Q. Whether a Chartered Accountant in practice can give public interviews and also whether he can furnish details about himself or his firm in such interviews ?

        Ans. : A Chartered Accountant in practice can give public interviews. While doing so, due care should be taken to ensure that such interviews or details about the members or their firms are not given in a manner highlighting their professional attainments, which may hit clauses (6) and (7) of the First Schedule of the CA Act.

    (Refer Page 718 of CA Journal for November 2009)

3. ICAI accounts :

The Council has adopted audited accounts of ICAI for the year 2008-09 on 25-9-2009. Some salient features of the accounts are as under :
4. EAC opinion:

The Expert Advisory Committee (EAC) of ICAI has recently given an opinion on accounting for business of manufacture, erection and commissioning of Wind Electric Generators (WEGs).

The company based on negotiation prepares three separate purchase/works orders viz. (a) purchase order for supply of WEGs (b) work order for civil, electrical and infrastructure work and (c) order for erection and commissioning of WEGs. The company recognises revenue based on the completion of an activity covered in the aforementioned three purchase/works order separately.

The EAC of lCAl is of the view that the three sepa-rate contracts entered into by the company with its customers are in fact one composite contract which has been broken into three separate agreements.

Further, the committee noted that the performance in respect of sale of WEGs is not complete until the commissioning of WEGs and commissioning is an essence of the contract. Therefore, the company can not adopt the policy on revenue recognition independently for the three orders as these form part of the single composite contract. Hence, the company should recognise revenue only on commissioning of the WEGs.

[Pleaseseepage nos. 739 to 741 of c.A. Journal for November, 2009.]

5. Standards on Auditing – Exposure Drafts:

The following Exposure Drafts are published by lCAl for comments of members. Page Nos. given below  are from CA Journal for November, 2009 :

i. Standard on Auditing  (SA) 220 (Revised)

Quality Control for Audit of Financial Statements (P. 820)
 
ii. Standard on Auditing  (SA) 501 (Revised)

Audit Evidence – Specific Consideration for Selected Items (P. 826)
 
iii. Standard on Auditing  (SA) 505 (Revised)

Analytical  Procedures  (P. 830)

 iv. Standard on Auditing  (SA) 505 (Revised)

External  Confirmations  (P. 834)

v. Standard on Auditing  (SA)  620 (Revised)

Using the Work of Auditors  Expert  (P. 840)

8. New  publications   by ICAI :

Details of the following  publications are given on P. 811 of CA Journal for November, 2009:

i) Data Analysis of Auditors – Practical Case Studies on using CAATS

ii) XBRL –  Primer

ICAI And Its Members

ICAI and Its Members

1. Disciplinary case :


In the case of ICAI v. P. V. Mehta the Department of
Customs, Government of India, filed a complaint against the member. It was
alleged that the member had issued a false certificate about export performance
by two concerns. On the basis of such certificates the parties obtained import
licences, effected imports and cleared the goods imported free of duty. The
matter was investigated by the Disciplinary Committee which found that the
member was grossly negligent in the discharge of his professional duties under
clause (7) of Part I of the second schedule of the C.A. Act. The Council, after
accepting the above report, decided to recommend to the Bombay High Court for
removal of the name of the member for one month.

The Bombay High Court has accepted the recommendation of the
Council. The High Court has observed that the member has admitted that he did
not verify the books or the relevant records or documents as also the figures of
turnover of the two concerns. The member admitted that he had signed the export
performance certificates prepared by the Internal Auditor who was also a member
of the Institute. The High Court, after considering the facts of the case,
accepted the finding of the Disciplinary Committee and the Council and confirmed
the punishment of removal of the name of the member for one month (Refer page
831 of C.A. Journal for November, 2008).

2. EAC opinion :


The Expert Advisory Committee (EAC) of ICAI has considered
the question of valuation of investment in shares of a subsidiary company for
non-cash consideration on pages 788-790 of C.A. Journal for November, 2008. In
this case a State Government company (ABC Ltd.) engaged in mining and selling of
rock phosphate, gypsum, etc. received an ‘in-principle approval’ from the
Government of India for allocating coal blocks in certain Lignite mines to the
company. For this purpose, ABC Ltd. was required to form a separate company to
undertake this mining activity. The company entered into a joint venture with a
private sector company and decided to form one JVC Ltd. It was agreed between
the parties that JVC Ltd. will be a subsidiary of ABC Ltd. in which it will hold
51% share capital, and private sector company will hold 49% share capital.

JVC Ltd. issued certain shares to ABC Ltd. for which no
payment was made by ABC Ltd. In the J.V. agreement it was provided that ABC Ltd.
will obtain licences, approvals, etc. and will also contribute its local
knowledge, technical knowledge and other expertise in relation to the mines. JVC
Ltd. was required to allot equity shares carrying 51% voting right to ABC Ltd.
for which no payment was to be made. The private sector company was to hold 49%
shares, arrange entire investment and also provide management support.

ABC Ltd., on allotment of 51% shares in JVC Ltd., debited
face value of shares to Investment A/c. and credited the amount to Capital
Reserve A/c. The amount debited to Investment A/c. was shown by ABC Ltd. under
the head ‘Investments’ in the balance sheet. The Auditors qualified the audit
report by stating that this should have been valued at ‘Nil’ as no payment was
made. According to the Auditors, assets of ABC Ltd. were stated at a higher
figure to this extent.

The EAC has examined the issue on the basis of paras 28/29 of
AS-13 ‘Accounting for Investments’ and given the opinion that the correct
accounting treatment in the books of ABC Ltd. for shares of JVC Ltd. issued/to
be issued in future to ABC Ltd. would be to recognise the same at fair value of
the services and licence to be provided by ABC Ltd. to JVC Ltd. Whether ABC Ltd.
has made actual payment or not is not material. In this case, consideration is
in kind and, therefore, valuation of investment in JVC Ltd. should be made as
explained in para 28/29 of AS-13.

3. Companies Bill — 2008 :


Companies Bill, 2008, has been introduced by the Minister of
Company Affairs in Lok Sabha on 22nd October, 2008. This Bill contains 426
sections and there are no schedules. This Bill, when enacted, will replace the
existing Companies Act, 1956.

4. Limited Liability Partnership (LLP) :


Limited Liability Partnership Bill (LLP Bill) providing for
establishment of Limited Liability Partnerships (LLP) in our country was
introduced in the Rajya Sabha by the Minister of Company Affairs on 15th
December 2006. This Bill was referred to the Parliamentary Standing Committee.
This committee’s report was presented to Lok Sabha and Rajya Sabha on 27th
November 2007. Based on the report of the committee some changes were made in
the original Bill. The revised LLP Bill, 2008 was presented to Rajya Sabha on
21st October 2008, and passed by Rajya Sabha in October, 2008. It will now be
placed before the Lok Sabha in December and may, hopefully, be passed before the
end of the current year. It may be noted that the basic structure proposed in
LLP Bill, 2006, has been retained in LLP Bill, 2008. Some changes are made in
the original Bill, which are of procedural nature. Concept of LLP is accepted in
USA, U.K., Australia and other countries. The new Bill, when enacted, will
provide for an alternative corporate business vehicle that provides the benefits
of limited liability and allows its members the flexibility of organising their
internal structure as a partnership based on a mutually arrived agreement. This
enactment will come into force on the date to be notified by the Central
Government after the Bill is passed by the Parliament. Salient features of
revised LLP Bill are as under :


i) Any two or more persons can form LLP for the purpose of carrying on any business, trade, profession, service or occupation. Even a limited company, an LLP, Non-resident, foreign LLP/Company can be a partner in LLP.

ii) Every LLP has to have at least two designated partners, at least one of whom should be a resident Indian. Designated partners shall be responsible for compliance with all legal requirements of the LLP Act, Rules and other Laws.

iii) LLP has to get itself registered with the Registrar of Companies (ROC) by filing the pre-scribed form of incorporation document and on payment of the prescribed fees. The incorporation document is to be accompanied by a statement about legal compliance signed by an advocate, a chartered accountant, a company secretary or a cost accountant.

iv) Upon incorporation, LLP will be treated as a body corporate and will be considered as a legal entity separate from its partners. It shall have a common seal and perpetual succession.

v) The procedure for obtaining name of LLP is the same as in the Companies Act. For this purpose, the name has to be approved by ROC.

vi) The limit of 20 partners (for business or profession) and 10 partners (for banking business) which applies to partnerships will not apply to LLP. It will be possible for Chartered Accountants to form LLP for rendering management consultancy service and there can be more than 20 partners in such LLP.

vii) Upon incorporation of LLP, its partners will have to enter into a partnership agreement in writing, stating capital contribution of each partner, share of each partner in profits and losses, interest/remuneration payable to each partner and other rights and duties of partners of LLP. The agreement is to be filed with ROC. If no such agreement is executed, the relationship between the partners shall be governed by the provisions of the First Schedule to the LLP Act.

viii) Agreement is to be executed when there are changes in partners or there are changes in the terms and conditions of the partnership. Such agreement is also to be filed with the ROC.

ix) Every partner of LLP is an agent of LLP.How-ever, he is not an agent of other partners. The liability of each partner is limited to the extent of his contribution as specified in the partnership agreement. The liability of LLP is limited to the extent of its assets.

x) LLP has to maintain its books of accounts either on cash or on accrual basis. Such accounts have to be audited every year in such manner as may be provided by the rules. LLP has to file audited statements with a solvency statement with ROC within six months of close of financial year (i.e., on or before 30th September). It has also to file an annual return with ROC in the prescribed form within 60 days  of close of Financial  Year (i.e., 31st May).   

xi) Any existing partnership can be converted into LLP by complying with the procedure laid down in the Second Schedule to the Bill.

xii) Similarly, a Private Limited Company or a Public unlisted company can also convert it-self into LLP by following the procedure laid down in the Third/Fourth Schedule to the Bill.

xiii) The Central Government is authorised to frame rules providing for procedure to wind up a LLP.

xiv) ROC is empowered to collect fees for filing documents with him and for levying penalties for defaults on the part of LLP. The Central Government is authorised to frame rules for administration of LLP Act.

xv) The National Company Law Tribunal is given powers to sanction arrangement, reconstruction, mergers, demergers, compromise with creditors, etc.

xvi) LLP Bill, 2008 is divided into 14 chapters and contains 81 sections and four schedules. The Central Government has power to alter any of the schedules.

xvii) The LLP Bill does not deal with tax aspects of LLP. The Income-tax Act will have to be amended for this purpose. It is likely that LLP will be considered as ‘Firm’ and all the provisions of the Income-tax Act applicable to Firms will apply to LLP. We have to await the amendments in this respect in the forthcoming Budget.


Standards  on Auditing  (SA) :

The following Exposure Drafts are published for comments in November, 2008, CA. Journal at pages stated below:

i) ‘Agreeing the Terms of Audit Engagements’ SA-210 (Revised) together with Explanatory Memorandum (Pages 912-924).

ii) “The Auditors’ Responsibility in Relation to Other Information in Documents containing Audited Financial Statements” SA-720 together with Explanatory Memorandum (Pages 925-930).

6. ICAI  News:

(Note: Page Nos. given below are from CA. Journal for November,2008)

(i) New Certificate courses for members (Page 768):

Following two certificate courses are started for members:

(a) Forex and Treasury Management – This course covers the areas of foreign exchange market, money market, bond market operations and related financial products.
 
b) Derivatives – This course covers financial derivatives such as forward contracts, futures contracts, options, swaps and other new derivatives.

i) Enhancing Audit  Quality:

Some observations made by reviewers while conducting peer review are listed in order to enable members to improve the quality of audit of corporate bodies. These observations relate to training programmes for staff (including articled and audit assistants) concerned with attestation function, including appropriate infrastructure (Page 910).

ii) ICAI –  New Branch:

ICAI has opened a new branch in “Beawar” (CIRC) w.e.f. 5-10-2008 (Page 890).

iii) New Publication  of ICAI :

Implementation Guide to Risk-based Audit of Financial Statements – (Page 892).

Miscellaneous

From Published Accounts

2. Deferral of Income of
Restructuring Fees received

Tech Mahindra Limited —
(31-3-2010)

From Notes to Accounts :

During the year, a customer
has restructured long-term contracts with the Company from April 1, 2009, which
involves changes in commercial, including rate reduction, and other agreed
contract terms. As per the amended contracts the customer has paid the Company
restructuring fees of Rs.9,682 million. The services under the restructured
contracts would continue to be rendered over the life of the contract. The
restructuring fees received would be amortised and recognised as revenue over
the term of the contract on a straight-line basis. An amount of Rs.2,005 million
has been recognised as revenue for the year from April 1, 2009 to March 31, 2010
and the balance amount of Rs.7,677 million has been carried forward and
disclosed as deferred revenue in the Balance Sheet.

3. Non availability of
financial statements of step-down associate for consolidation purposes

Tech Mahindra Limited —
(31-3-2010)

From Notes to Accounts to
Consolidated Financial Statements :

TML through Venturbay
Consultants Private Limited, a wholly-owned subsidiary has acquired stake in
Satyam Computer Services Limited (SCSL), on May 5, 2009 through preferential
allotment, representing 31% of equity share capital. Thereafter the share
holding has further increased to 42.70% by July 10, 2009 through a combination
of open offer and a further preferential allotment. As per the share
subscription agreement dated April 13, 2009, these investments have a lock-in
period of three years from the date of allotment. As a result of this investment
SCSL has become an associate of TML as per Accounting Standard 23 ‘Accounting
for Investments in Associates in Consolidated Financial Statements’. Venturbay
Consultants Private Ltd. holds 42.67% of the shareholding of SCSL as of March
31, 2010.

SCSL is in the process of
restating its financial statements. The Honourable CLB vide its order dated
April 16, 2009 has given extension of time till December 31, 2009 to SCSL for
filing of the documents with various statutory authorities already due or to
become due, the same is further extended till June 30, 2010 vide the Honourable
CLB order dated October 15, 2009.

In the absence of audited
financials the amount of goodwill/capital reserve in the investment value as at
March 31, 2010 could not be computed and the investment in SCSL as at March 31,
2010 has been accounted for at cost. TML’s share of profit/loss in SCSL and its
subsidiaries for the year ended March 31, 2010 in accordance with Accounting
Standard 23 ‘Accounting for investments in associates in consolidated financial
statements’ has not been accounted in the consolidated financial statements of
the Company.

From Auditors’ Report :

4. As stated in Note 23 to
the consolidated financial statements, Venturbay Consultants Private Limited
(100% subsidiary of the Company) has acquired 31% stake in Satyam Computer
Services Limited (SCSL) on 5th May 2009 and subsequently increased the stake to
42.70% on 10th July 2009. SCSL is in the process of restating its financial
statements. The Honorable CLB vide its order dated October 15, 2009 has given
extension of time till June 30, 2010 to SCSL for filing of the documents with
various statutory authorities already due or to become due. We are informed that
the Accounts of SCSL are not available for consolidation and in the absence of
financial statement of SCSL we are unable to comment on the impact of
post-acquisition profit/loss of SCSL on ‘share of profit of associate’,
investment in associates and reserve and surplus in the consolidated financial
statement of the group.

5. . . . . . .

6. Based on our audit and on
consideration of the separate audit reports on individual financial statements
of the Company, its aforesaid subsidiaries and to the best of our information
and according to the explanations given to us, subject to our
observations in Para 4 above, in our opinion, . . . . . .

4. Adoption of Exposure
Draft of AS-10 (revised) for change in the method of accounting of costs on
major repairs and maintenance of its engines.

Kingfisher Airlines Limited
— (31-3-2010)

From Notes to Accounts :

During the year, the Company
has adopted the exposure draft on Accounting Standard-10 (Revised) ‘Tangible
Fixed Assets’ which allows such costs on major repairs and maintenance incurred
to be amortised over the incremental life of the asset. The Company has extended
the same treatment to costs and maintenance for engines pertaining to aircrafts
acquired on operating lease. Earlier, the Company used to charge off the cost of
such repairs and maintenance of its engines to the Profit and Loss Account as
and when incurred. Had the Company not changed its method of accounting, the
loss before and after tax for the year would have been higher by Rs.16,390.25
lacs and Rs.10,945.82 lacs, respectively. This revised accounting policy has
been confirmed by an independent expert and in the opinion of the management,
this accounting treatment has resulted in a fair depiction of the working
results and the state of affairs of the Company.

From Statement of
Significant Accounting Policies :

Fixed assets and Intangible
assets :

Fixed assets and intangible assets are stated at cost of acquisition less accumulated depreciation/ amortisation and impairment losses (if any). Cost comprises the purchase price and any attributable cost of bringing the asset to its working condition for its intended use and also includes cost of modification and improvements to leased assets.

Borrowing costs relating to acquisition of fixed assets are also included to the extent they relate to the period till such assets are ready to be put to use.

Advances paid towards the acquisition of fixed assets and the cost of fixed assets not ready for intended use as of the balance sheet date are disclosed under capital work-in-progress.

Depreciation:

Depreciation on fixed assets, except non-compete fees, trademarks, design — aircraft interiors, software, leasehold improvements, is provided on a straight-line basis at the rates prescribed under Schedule XIV to the Companies Act, 1956 which are estimated to be the useful life of fixed assets by the management. Additions are depreciated on a pro-rata basis from the date of installation till the date the assets are sold or disposed.

— Non-compete fees are amortised over the period of agreement (i.e., five years).

— Trademarks are amortised over the period of four years.
— Design — Aircraft Interiors are amortised over the period of seven years.
— Software is depreciated over a period of 1-4 years, based on estimated useful life as ascertained by the management.
— Leasehold improvements on operating leases are depreciated over the shorter of the period of the lease and their estimated useful lives.
— Cost of major maintenance and overhaul of the engines are amortised over the period of estimated useful life of the repairs.
— Movable cabins and mobile phones are depreciated over the period of five and two years, respectively, on a straight-line method.

From Auditors’ Report:

…….

Attention is invited to Note 29 of Schedule 21 regarding change in the method of accounting of costs incurred on major repairs and maintenance of engines of aircrafts taken on operating lease during the year aggregating to Rs.20,700.76 lacs which have been included under fixed assets and amortised over the estimated useful life of the repairs. In our opinion, the revised accounting treatment is not in accordance with current accounting standards.

From Directors’ Report:
……

As regards the observations in para 6 of the Auditors’ Report, your Company has adopted the Exposure draft on Accounting Standard-10 (Revised) ‘Tangible Fixed Assets’, which allows such costs on major repairs and maintenance incurred to be amortised over the incremental life of the asset. Your Company has extended the same treatment to costs incurred on major repairs and maintenance for engines pertaining to aircrafts acquired on operating lease.

Some Recent Judgments

I    High Court:

1  CENVAT credit:

Whether outdoor catering service is ‘input service’?


CCE, Nagpur v. Ultratech Cement Ltd., 2010 TIOL 745 HC Mum.-ST

Substantive question of law raised by the Revenue was, whether CESTAT was correct in considering outdoor catering as input service when catering service does not fall under ambit of the definition of input service. Based on Larger Bench’s decision of CESTAT in the case of CCE v. GTC Industries Ltd., 2008 (12) STR 468 (Tri.-LB), wherein it was held that cost of food borne by the factory would form part of the cost of product and credit of duty paid thereon was allowable, the appeal was allowed by the Commissioner (A) and upheld by the Tribunal. According to the Revenue, decision of GTC (supra) ought not to have been applied to this case as in that case, duty was paid on assessable value whereas in the instant case, the duty on cement was payable on tonnage basis and therefore, it was distinguishable. Further, the more recent Apex Court’s decision in Maruti Suzuki Ltd. v. CCE, 2009 (240) ELT 641 (SC) squarely applied and therefore the Revenue had a case.

Detailed submissions were provided and analysis of wide scope of ‘input service’ and the expression ‘in relation to’ were made by the assessee. Meaning of the words ‘such as’ and which was followed by an illustrative list also was discussed at length citing and relying on various decisions which inter alia included, Federation of Tax Practitioners Association v. Union of India, 2007 (7) SCC 527 and Division Bench judgment in Coca Cola India P. Ltd. v. CCE, 2009 (242) ELT 268 (Bom.).

The Court observed that the Apex Court in Maruti Suzuki’s case (supra) considered the expression ‘used in relation to the manufacture of final product’ in the definition of ‘input’ and held that the ratio laid down by the Apex Court equally applied while interpreting ‘activities relating to business’ in Rule 2(1) of the CENVAT Rules. However, there lay difference as inclusive part of the definition of ‘input’ was restricted to inputs used in or in relation to ‘manufacture of final products’, whereas inclusive part of the definition of ‘input service’ extended to services used prior, during the course of and after the manufacture of final products and that the definition of ‘input service’ was wider than that of ‘input’. However, there was no difficulty found in applying the ratio laid in the said case of Maruti Suzuki (supra) and held that services having integral connection with manufacture as well as business of manufacture of final product would qualify to be ‘input service’.

The Revenue’s contention that not only the ratio but the decision in the case of Maruti Suzuki (supra) must be applied ipso facto to the instant case was not accepted. It was further observed by the Court that the definition of ‘input service’ read as a whole made it clear that it not only covered services used directly/indirectly in relation to manufacture, but also other services integrally connected with the business of manufacturing final product and as such, credit of service tax paid as outdoor catering service would be allowable and the question of law raised was answered in affirmative in favour of the assessee.

2    Mandap keeper’s service:

(i)    Can letting out lawn by a members’ club to its member be taxable under ‘Mandap Keeper Services’?
(ii)    Is ‘member’ a ‘client’ of the club?


Karnavati Club Ltd. v. Union of India, 2010 (20) STR 169 (Guj.)

The appellant is a members’ club registered under the provisions of the Companies Act, 1956. It does not have any shareholders. It makes available facilities to its members and their guests and recovers the expenses. Persons are made members against payment of subscription.

The Court observed the following:

To make the activity of the above club taxable under ‘Mandap Keeper Services’, the members of the club should fall within the definition of ‘client’.

After referring to various definitions of ‘client’, the Court inferred that a client is a one who applies for service or advice or who retains a solicitor in the management of his suit. Since the principle of mutuality is squarely applicable in the current case, a member cannot be said to be a ‘client’ of the club.

Held that the activity of the club cannot be taxable under ‘Mandap Keeper Services’.

(P.S.?: The above case pertains to the period prior to 16-5-2008. With effect from 16-5-2008, the word ‘client’ has been replaced with ‘any person’ vide Circular 334/1/2008)

3    Rebate:

Whether a procedural lapse could result denial of rebate claim?


Commissioner of Service Tax v. Convergys India Pvt. Ltd., 2010 (20) STR 166 (P & H)

The question before the Tribunal was that whether the Department was justified in rejecting the rebate claim for want of declaration prior to making exports as provided in Notification No. 12/2005 ST, dated 19th April 2005. The High Court noticed that delay in filing of declaration, in the present case, was due to the respondents considering many options after introduction of such Notification and also delay in obtaining management’s approval for the same. The Supreme Court in the case of Mangalore Chemicals & Fertilisers v. Deputy Commissioner, [1991 (55) ELT 437] has held that the procedural requirement can be condoned for valid reasons and as such dismissed the appeal of the Revenue.

4    Registration:

  •    Whether centralised registration is deemed to be granted within seven days?
  •     Can the Department grant registration under the category other than what the assessee applied for?
  •     Whether Circulars, which are challenged but the outcome is pending, are binding on the Department?

Karamchand Thapar & Bros. v. Union of India, 2010 (20) STR 3 (Cal.)

The petitioner applied for registration under ‘business auxiliary services’ under which he was covered with effect from 16th June 2005. Further, it also applied for a centralised registration to the Commissioner in November 2005. However, the Department granted centralised registration under the category of ‘clearing and forwarding agent’ on 11th September 2007.

The issues before the High Court were whether registration certificate is deemed to be granted within seven days, whether the Circulars, which were challenged by the Department, were binding on the Department. The High Court observed as follows:

  •     Rule 4(5) of the Service Tax Rules, 1994 which portrays such deeming fiction is applicable only to the Superintendent and the same was not applicable to the Commissioners in case of centralised registration under Rule 4(2). Therefore, the centralised registration could not be deemed to be granted within seven days.

  •    Further, there was no such time limit prescribed for the Commissioners to issue centralised registration certificate. However, the registration should be granted within a reasonable time. In the present case, in view of Circulars, seven days was a reasonable time.

  •     The High Court also made a note that although S. 69 requires all registration applications to be submitted to the Superintendent, it does not dilute the authority of the Commissioner to grant such registration under Rule 4.

  •     There are no provisions under the Service Tax Rules to refuse application for registration. Circular No. 72/2/2004 ST, dated 2nd January 2004 provides that the jurisdictional officer cannot question the correctness of declaration made by the applicant.

  •    As held in various judgments, the Circulars are binding on the Department. Though the Supreme Court in the case of CCE, Bolpur v. Ratan Melting and Wire Industries [2008 (12) STR 416] has held that the Circulars can be challenged by the Department, the said judgment did not apply to facts of the case since neither there were contrary decisions nor was the Circular contrary to the statute.

  •     Even when the Circular is challenged, the binding effect continues until the challenge succeeded.

  •     Therefore, the registration should be granted under the category of ‘Business Auxiliary Services’ and the Commissioner did not have power to grant registration on his own without receiving any application for registration under that specific category.

  •     There are no provisions in the service tax laws which lay down the consequences of delay in application for registration. Therefore, though there was a delay in application for registration by the petitioner, the Department could not reject the application, nor could he grant registration under a different category. However, recovery and/or penal proceedings might be initiated for non-payment of service tax.

II.    TRIBUNAL:

5 Applicability of Service Tax:

Whether executory work like false ceiling, partitions, flooring, etc. undertaken without any advice, consultancy or technical assistance be covered as interior decorator services?

Spandrel v. Commissioner of C. Ex., Hyderabad/Kochi, 2010 (20) STR 129 (Tri.-Bang.)

The appellants were engaged in executing interior works such as pest control, demolition and dismantling, masonry work, wall preparation, partition of banks, firms, etc. The said work was intended to be taxed as ‘Interior Decorator Services’ by the Department.

The appellants put forth the claim that interior decorator means any person engaged in the business of providing by way of advice, consultancy and technical assistance. Further, the appellants referred to Circular No. B1/6/2005 TRU, dated 27th July 2005 and contended that execution of the above work falls under the category of ‘Commercial or Industrial Construction Services’ introduced from 16th June 2005. The appellants relying on various judgments claimed that these services were notified from 16th June 2005 and therefore, were not taxable earlier.

The Department argued that the scope of interior decorator was not only restricted to advice, consultancy or technical assistance, but also extends to beautification of spaces.

The Tribunal held as follows:

The Department did not have findings that the appellants were engaged in advice, consultancy and technical assistance or planning work and designing. The executory work of the appellants was specifically covered by commercial or industrial construction services and therefore, the same could be held to be covered under any other category prior to introduction of commercial or industrial construction services and allowed the appeal.

6 Appeal:

Whether legal representative can file the appeal on behalf of deceased assessee?

Abhay Intelligence & Security Service v. Commissioner of C. Ex., Vadodara, 2010 (20) STR 204 (Tri.-Ahmd.)

The appellants challenged the levy of penalty on dissolved proprietorship firm after death of the proprietor and relied on various decisions. The Tribunal observed that the ratio laid down in those decisions is that the appeal filed by a legal representative against penalty on deceased is not maintainable. However, the penalty being personal in nature can be recovered only from the person on whom it was imposed and as such it could not be recovered from a legal representative.

7 CENVAT Credit:

7.1 Whether CENVAT credit be allowed on Garden Maintenance Services?

ISMT Ltd. v. Commissioner of C. Ex. & Cus., Aurangabad, 2010 (20) STR 68 (Tri.-Mumbai)

The limited issue before the Tribunal was whether CENVAT credit was allowed on garden maintenance services. The appellants relied on Millipore India Ltd. v. CCE, Bangalore II [2009 (13) STR 616 (Tribunal); 2009 (236) ELT 145 (Tri-Bang.)], which held that modernisation, renovation and repairs, etc. of office premises and landscaping, the surroundings of factory can be considered as input services.

The Department relied on Kirloskar Oil Engines Ltd., [2009 (241) ELT 474 (Tribunal)] which held that ‘garden maintenance services’ do not have any nexus with the manufacture or clearance of final product. They also relied on the decision given in Maruti Suzuki Ltd. v. CCE, Delhi III [2009 (240) ELT 641] (SC) and stated that ‘input’ and ‘input services’ were identical and therefore, CENVAT credit was not admissible.

The Tribunal observed as follows:

  •     Mumbai High Court in case of Coca Cola [2009 (15) STR 657] has held that input services include services used in relation to business. The Tribunal would look whether garden maintenance was related to business activities. It was also observed in the said case that the term ‘activities relating to business’ used in ‘input services’ widens the scope of such definition and conceptually any input service which forms part of the assessable value of final product should be eligible for CENVAT credit.

  •     Maruti Suzuki case cited by the Department relates to definition of ‘input’. The definitions of ‘input’ and ‘input service’ are not comparable at all. Therefore, ratio of such judgment cannot be considered for the present case. The intention of the Legislature is very clear to have different definitions of ‘input’ and ‘input service’. The words ‘used in or in relation to manufacture of final product’ deployed in ‘input’ are not used in the definition of ‘input service’. Further, the Revenue has relied on the judgment of this Tribunal in the case of Kirloskar Oil Engines (supra) and Vikram Ispat (2009 (16) STR 195), but both these cases did not take a note of Coca Cola case (supra) delivered by the Mumbai High Court.

  •     In Force Motors Ltd. v. CCE, Pune [2010 (18) STR 150], the Tribunal had observed that the definition of ‘input service’ should be considered in two parts, one inclusive and another exclusive part. Further, the activities specified after the phrase ‘such as’ are only illustrations and there fore the activities other than those illustrated may get covered.

  •     A good garden increases the working efficiency and consumer also feels good and therefore, garden maintenance services are in relation to business activity. CENVAT credit was, therefore, allowed.

Kirloskar Oil Engines Ltd. v. Commissioner of C. Ex., Aurangabad, 2010 (20) STR 30 (Tri.-Mumbai)

The issue before the Tribunal again related to CENVAT credit on garden maintenance services. The Department put forth that there were contrary judgments on the disputed issue and therefore, the same should be referred to the Larger Bench. The Tribunal observed that the contrary judgment was given in case of the appellants itself and such matter was remanded back for fresh adjudication but the law was already settled in Coca Cola India Pvt. Ltd. v. CCE, [2009 (151) STR 657, 2009 (242) ELT 168]. The Tribunal allowed the CENVAT credit on garden maintenance following the decision given in ISMT Ltd. case discussed above.

7.2 Whether interest is leviable for wrong avail-ment of CENVAT credit?


Commissioner of C. Ex., Pondicherry v. Superfil Products, 2010 (20) STR 279 (Tri.-Chennai)

The manufacturer availed but not utilised CENVAT credit of inputs and capital goods and also availed benefit of exemption Notification No. 30/2004, dated 9th July 2004. However, the CENVAT credit on inputs lying in the factory and inputs in process etc. was not reversed.

The Department claimed that interest was payable even on wrong availment of CENVAT credit in view of Rule 14 of the CENVAT Credit Rules, 2004. However, the respondents alleged that there was sufficient balance in the CENVAT credit account and therefore, it has not got any pecuniary benefit. The respondents also relied on the judgment delivered by P & H High Court in the case of CCE, Delhi-III v. Maruti Udyog Ltd., (2007 (214) ELT 173) which was affirmed by the Apex Court in (2007 (214)    ELT A50) wherein it has been held that in the absence of utilisation of CENVAT credit, interest shall not be leviable.

The Tribunal observed that for interpreting Rule 14 of the CENVAT Credit Rules, 2004, the words ‘taken or utilised’ should be construed as ‘taken and utilised’. It was held that in the present case, interest is not justifiable. However, in case when the CENVAT credit balance is less than the credit to be reversed, then the balance should be paid in cash with interest.

7.3 Whether CENVAT Credit is allowed on capital goods received in the factory before the assessee becoming liable to service tax?

ABC Engineering Works v. Commissioner of C. Ex., Guntur, 2010 (20) STR 145 (Tri.-Bang.)

The appellants were engaged in providing site formation and clearance, excavation and earth-moving and demolition services. The appellants took CENVAT credit on excavators during 30th September 2005 and 31st March 2006. However, such excavators were purchased prior to 16th June 2005 i.e., prior to the introduction of the above service in the service tax net.

The appellants submitted that the excavators were purchased after introduction of the CENVAT Credit Rules, 2004 and put to use after introduction of service. Such capital goods were not used in providing exempted services and therefore, CENVAT should be allowed. The appellants relied on the Tribunal’s judgment in the case of ACE Timez v. CCE, Bangalore, [2004 (170) ELT 371]. The Tribunal observed and held that in case of Spenta Interna-tional Ltd., [2007 (216) ELT 133], the Larger Bench of Tribunal held that eligibility of CENVAT credit has to be determined based on dutiability of final product on date of receipt of capital goods in the factory, instead of date of utilisation of CENVAT credit. Further ACE Timez case (supra) is based on different facts and ratio thereof cannot be applied to the present case. The assessee therein was availing exemption and therefore, provisions of Rule 6(4) of the CENVAT Credit Rules, 2004 did not apply to the assessee. The ratio laid down by the Board’s Circular No. 137/120/2008-CX-4, dated 24th June, 2008 relied on by the Commissioner provides that the CENVAT credit of CVD paid on the aircrafts before introduction of such services cannot be available to assessee even when the same is included in the definition of capital goods in view of Rule 6(4). Eventually, the Tribunal denied the CENVAT credit on excavators. However, since the question related to interpretation of law, the penalty was waived.

7.4 Whether CENVAT credit is available for input services utilised outside the factory premises?


Atul Auto Ltd. v. Commissioner of C. Ex., Rajkot, 2010 (20) STR 275 (Tri.-Ahmd.)

The appellants were denied CENVAT credit on erection, installation and commissioning services of wind mills for generation of electricity outside the factory premises.

The?Tribunal?observed?that?the power generated at the wind mills was not directly used by the appellants. It also relied on the decision given in Rajhans Metals (P) Ltd., [2007 (8) STR 498] and held that wind mill firm unit being not a part of the appellant’s factory premises, CENVAT credit cannot be allowed.

7.5 Whether CENVAT credit is allowed on agricultural work, on levelling of children park and tree plantation and construction of toilet in village?


Commissioner of C. Ex., Salem v. ITC Ltd., 2010 (20) STR 141 (Tri.-Mumbai)

The Tribunal held that service tax paid on agricul-tural work is allowed relying on the decision given in the case of Millipore India Ltd. v. CCE, [2009

(13)    STR 616, 2009 (236) ELT 145). However, since levelling of children park and tree plantation and construction of toilet in village are not relating to business of the respondent, CENVAT credit was held to be disallowed.

8  Export of services:

Whether procuring orders for parent company abroad be considered as export of services?

Lenovo (India) Pvt. Ltd. v. Commissioner of C. Ex., Bangalore, 2010 (20) STR 66 (Tri.-Bang)

The appellants were procuring orders for their foreign parent company classifiable under ‘Business Auxiliary Services’ and were receiving commission for such services. Rebate was claimed under Rule 5 of the CENVAT Credit Rules, 2004 for service tax paid on such commission. The Department rejected the rebate claim on the ground that the appellants promote the product of Singapore-based parent company in India, therefore the said services are rendered in India and they do not qualify to be considered exports. Further, it also claimed that services are rendered to its own concern and the appellant’s office can be considered as office of foreign parent company. Therefore, the recipient of service is not located outside India.

The appellants claimed that they and the parent company were separate entities. Moreover, the recipient was located outside India and parent company does not have an office in India. Therefore, they argued that the services were utilised abroad. The appellants also took support of Blue Star v. CCE, Bangalore, [2008 (11) STR 23] and ABS Ltd. v. CCE, Bangalore, [2009 (13) STR 65] delivered by the Bangalore Tribunal. Since the issue was squarely covered by the said judgments, the ap-peal was allowed.

9 Refund of CENVAT:

9.1 Can Refund of CENVAT credit be denied if it is not filed in the same month?

Can it be disallowed as the invoices were raised on a person acting as Pure Agent and paid by such Agent?

Can credit on input services received for consultancy on acquisition of a business be disallowed because that business is not yet acquired? Whether credit can be disallowed in the absence of specified evidence as to why the credit was not admitted?

Commissioner of Central Excise, Mysore v. Chamundi Textiles (Silk Mills) Ltd., 2010 (20) STR 219 (Tri.-Bang.)

The respondent is a 100% EOU engaged in the business of manufacturing and exporting silk and allied fabrics. They had availed CENVAT credit of service tax paid on services received by them. But the Revenue rejected the claim of refund of the above CENVAT credit on the following grounds:

  •     CENVAT credit was taken on the goods which were not manufactured in the month in which the claim was made.
  •    The invoices were raised on a person acting as a Pure Agent, credit could not be allowed.
  •    The commission received for acquisition of business outside India would not qualify as input service as the business was not acquired till that date.
  •     The assessee failed to prove the nexus of invoices that were addressed to the Head Office but actually related to the Mysore Unit.

The Tribunal’s observations were as follows:

  •     If some credit is admissible in a particular month, it shall be admissible in the succeeding month too. It is natural that there will be a time lag between availment of credit on the goods manufactured and the export of those goods. CBEC has prescribed a time limit of one year for filing the refund claim and the refund should be filed on a quarterly basis. Hence, it is natural that if an exporter is claiming refund after 9 months, it would not be relating to the goods of that month.

Thus, the claim of refund cannot be denied on this ground.

  •     The invoice had been raised on a person acting as Pure Agent on account of the appellant. The Pure Agent had discharged liabilities which would otherwise have been discharged by the appellant.

Thus, the credit cannot be denied on this ground also.

  •     In regard to the Consultancy Service (Commission) received for acquisition of business outside India, it was observed that the company was yet to be acquired and pending such acquisition, it could not be concluded if the consultancy received has been used in the business activity. Hence, CENVAT credit on the said service was not admissible.

  •     The Tribunal also perused the invoices that were raised on the Head Office. It was found that they related to the activities of Mysore Unit. The respondent also submitted that no explanation was given by the Revenue regard-ing the inadmissibility of credit relating to such invoices. The Court thus dismissed the appeal of the Revenue on the grounds that there was no special evidence as to why the credit could not be allowed.

9.2 Whether airfreight services received by appellants till goods are loaded onto aircraft are eligible for CENVAT credit? Whether Department is justified in denying refund in months of no export?

Fine Care Biosystems v. Commissioner of C. Ex., Ahmedabad, 2010 (20) STR 193 (Tri.-Ahmd.)

The Department rejected the refund claim for the months where no export took place. Further, it also rejected the refund claim for the CHA and airfreight services.

The Tribunal made the observations that in Delhi Tribunal’s decision in case of Philco Exports v. CCE, New Delhi [2009 (234) ELT 568] it was held that the time lag between the date of receipt of inputs, the date on which they are used and the date of export are not relevant. The issue to be looked into is whether the input services were used in relation to manufacture of export goods. Accordingly, there is no restriction on availment of CENVAT credit for exporters and only when adjustment is not permissible, Rule 5 allows for refund of CENVAT credit. Therefore, for the months where no export sales were made, CENVAT credit cannot be denied. Further, in case of export sales made on FOB or CIF basis, the place of removal has to be the port of export. Therefore, the Com-missioner rightly allowed CENVAT credit on CHA services. Taking the same analogy, CENVAT credit on airfreight services till load port is allowable.

9.3 Whether Department justified in denying claim of refund on the basis of declaration in ARE-1 that the CENVAT credit was not availed by the assessee?

Fine Care Biosystems v. Commissioner of C. Ex., Ahmedabad, 2010 (20) STR 241 (Tri.-Ahmd.)

The Department denied refund claim to the ap-pellants, a 100% EOU, on the basis that the appellants had declared in ARE -1 that it has not availed CENVAT credit and such declaration should be treated as final. The Tribunal held that Rule 5 of the CENVAT Credit Rules, 2004 requires that goods should have been exported, the CENVAT credit taken should be eligible CENVAT credit and credit could not have been utilised for payment of duty of finished goods by way of adjustment. Further, there is no requirement under Rule 5 for giving any declaration in ARE-1. The declaration requirements are made to facilitate exporters to have their legitimate export benefit entitlement without delay and the same should not be used to deny the legitimate entitlement.

10 Remand:

Whether Commissioner (Appeals) has power to remand back the service tax cases? Commissioner of Service Tax, Delhi v. World Vision, 2010 (20) STR 49 (Tri.-Delhi)

The Tribunal held that the Commissioner (Appeals) can remand the matter u/s.85(4) and the provisions of S. 35, S. 35A and S. 35B of the Central Excise Act were not made applicable to service tax vide S. 83 of the Finance Act, 1994. It also concluded that S. 85(5) related to procedural aspects only and it cannot be interpreted to restrict the powers of the Commissioner (Appeals).

11 Unjust enrichment:

Whether booking of space or time in media are ‘Advertising Agency services’?? Whether unjust enrichment is applicable in case when Department does not have clear finding?

C.S.T., Ahmedabad v. Poornima Advertising & Pro-motion Pvt. Ltd., 2010 (20) STR 107 (Tri.-Ahmd.)

The assessee claimed refund of excess service tax paid without considering discount. The Commissioner (Appeals) held that though the assessee is eligible for refund on merits, refund cannot be allowed in the present case applying doctrine of unjust enrichment. The Tribunal held that refund is eligible on merits on the grounds that:

  •    The Department contended that the scope of ‘Advertising Agency Services’ covers services in connection with advertisement including services connected with display or exhibition of advertisement and the services. However, Master Circular was against such interpretation. Therefore, merely canvassing advertisement for public on commission basis is classifiable under ‘Business Auxiliary Services’ and not under ‘Advertising Agency Services’. In respect of unjust enrichment, the Tribunal observed that the issue of credit note was sufficient to prove repayment of excess service tax and further that the Department did not have clear finding that such amount was not refunded. Thus, the appeal was allowed.

Some Recent Judgments

I. High Court :

    1. Binding nature of law laid down by High Court’s order :

    A.C. Nielsen ORG – MARG Pvt. Ltd. v. UOI 2009 (16) STR 259 (Bom.)

    Order dated : 22-7-2009

    The petitioner in this case was denied waiver of pre-deposit by the Tribunal in the issue of service tax demand as recipient of service for the period prior to 18-4-2006, in spite of relying on the High Court decision in the case of Indian National Shipowners Association v. UOI, 2009 (13) STR 235 (Bom). The High Court ruled that once this Court lays down the law that the recipient of the service was not liable for paying service tax, that law was binding on all Tribunals and authorities functioning within the jurisdiction of this Court and accordingly, directed to proceed with the appeal without any pre-deposit.

2. When appeal relates to rate of duty, Supreme Court is the authority u/s.35L :

    CST v. Delhi Gymkhana Club Ltd., 249 (16) STR 129 (Del.)

    In the instant case, the Tribunal had dismissed the appeal made by the Revenue against the order of the Commissioner (Appeals) who, relying on the judgments of the Calcutta High Court in the cases of Saturday Club Ltd. v. A.C. Service Tax, 2006 (3) STR 305 (Cal.) and Dalhousie Institute v. AC Service Tax, 2006 (3) STR 311 (Cal.), had held that the service provided by a club to its members did not attract service tax as principle of mutuality prevailed in such cases. The Revenue, challenging the order of the Tribunal filed appeal in the Delhi High Court u/s.35 of the Central Excise Act read with S. 83 of the Finance Act, 1994. In terms of the provisions of S. 35G read with S. 35L of the Central Excise Act against certain orders of the Tribunals, appeal is to be made to the High Court, whereas in respect of certain other orders passed by the Tribunal, a direct appeal to the Supreme Court has to be made. The High Court in this case, accepting the respondent’s contention, held that the appeal would not be maintainable as the question decided by the Tribunal relates to the rate of duty and when the issue relates to the rate of duty or tax or value of goods or assessment, relying on the decision in the case of Navin Chemical Mfg. & Trading Co. Ltd. v. Collector, 1993 (68) ELT 3 (SC), the remedy for the appellant to file appeal u/s.35L was to be to the Supreme Court and therefore, the appeal was held not maintainable on this ground.

II. Tribunal :

3. CENVAT credit :

    CCE & CUS Guntur v. CCL Products (India) Ltd., 2009 (16) STR 305 (Tri.-Bang.)

    Final Order 216-220/2009 & Stay Orders 303-305/2009, all dated 20-3-2009

    The issue involved related to denial of credit availed on service tax paid on insurance premium, repair of vehicles, AMC charges on telecom & courier charges not considering the said services as input services. Considering inclusive part of the definition of ‘input service’ as exhaustive and having a bearing on the main part of the definition and further considering expressions ‘in or in relation to’ expansive, the Commissioner (Appeals) held the services used by the manufacturer as in relation to the manufacture and clearance of final products. Relying on the Larger Bench’s decision in the case of Commissioner v. GTC Industries Ltd., 2008 (12) STR 468 (Tri.-LB) and which was followed in 2009 (13) STR 616 (Tri.), the Tribunal rejected the Revenue’s contention that courier services were akin to outward transportation of final goods and therefore they could not be treated as ‘input service’ under Rule 2(1) of the CENVAT Credit Rules as per decision in the case of Universal Cables Ltd. v. CCE, 2007 (7) STR 310 (Tri. Del.) and thus maintained the order of lower authority relying on the decision in the case of GTC Industries (supra).

    Wrong classification by service provider cannot make credit ineligible :

    CCE, Chennai v. Carborandum Universal Ltd., 2009 (16) STR 181 (Tri.-Chennai)

    Input credit was considered ineligible on the ground that the service involved was classifiable under manpower recruitment and supply agency, and not business auxiliary service, although the same was claimed on valid documents on which service tax was paid by the respondent. The period in which credit was taken was prior to 16-6-2005, during which time the service of manpower supply was not taxable. Holding that service tax was paid by the provider of service under the business auxiliary service and it was so assessed, credit taken based on valid documents could not be questioned on the basis that the assessment of the service by the department at the end of service provider was incorrect, the appeal of the Revenue was dismissed.

    Rebate under Notification No. 12/2005-ST : Liberal view of procedural lapse for exports :

    CST Delhi v. Convergys India P. Ltd., 2009 (16) STR 198 (Tri.-Del)

The respondent provides customer care services on behalf of foreign clients through telephone, email and web-based interaction. These services being in the nature of exports, claim of rebate was lodged under Notification 12/2005-ST. They used several input services like advertising, courier, leased circuit, rent-a-cab services, security agencies, management consultancy services, air travel agencies, online information services, etc. and inter alia also used management consultancy services from outside India. Rebate claim was rejected on the grounds that declaration being a mandatory requirement was filed late and some of the services were not used for providing output services but used for maintaining capital assets/ goods, etc. and therefore could not be considered input services. Provisions of Notification 12/2005-ST were discussed at length. Late filing of declaration was considered procedural lapse, where by substantive benefit was considered not deniable. Further, rebate was considered admissible also considering that the definition of input service was inclusive and that when cost of the goods and services becomes part of cost of output services, such goods or services in common parlance are inputs and input services in relation to final products are output services. Accordingly, services used in connection with procurement of other input services are also to be treated as input services. Similarly, services used in day-to-day activity like maintenance services, etc. are input services. The eligible criteria under the CENVAT Credit Rules get satisfied if services in part or full are used for taxable services and therefore, the rebate would be admissible. The Tribunal further observed that in respect of exports, a liberal view requires to be taken.

4. Longer period of limitation:

Whether sustainable when disclosure provided in ST-3 Returns:

CCE Kanpur v. Taj Tours & Travels, 2009 (16) STR 273 (Tri.-Del.)

The respondent, a tour operator, provided services of monumental tours, local transportation, rail/ air ticket booking, etc. on behalf of principal agents. The turnover representing purchase of tickets and principal’s services was deducted from the value of taxable services, and accordingly remark was made in the ST-3Returns. Suppression was alleged by the Revenue. Since disclosure was made in the ST-3 Returns, charge of misstatement or suppression was held incorrect and the Commissioner (Appeals)’s ruling based on judgments in the cases of Anand Nishikawa Co. v. CCE, 1995 (75) ELT 721 (SC), etc. that mere failure to give some information did not amount to willful mis-declaration and that there must be a positive act from assessee to final willful suppression was upheld.

When Department has knowledge, whether invokable?

Mahaveer Generics v. CCE, Bangalore 2009 (16) STR 289 (Tri.-Chennai)

Stay Order dated 2-4-2009.

The appellant, a consignment agent of CIPLA, made a stay plea for non-applicability of longer period of limitation as the activity of the firm was known to the Department, as service tax demanded from the firm as clearing and forwarding agency was set aside by the Tribunal rejecting interpretation of the Revenue. Prima facie considering the appellant not guilty of suppression of facts with intent to evade-payment of duty so as to attract longer period of limitation, pre-deposit of service tax and penalty was totally stayed.

When invoked consequent upon audit:

Aditya College of Competitive Exams v. CCE, 2009 (16) STR 154 (Tri.-Bang.)

Appellant is a commercial training and coaching centre. It had collected certain amount towards service to be provided prior to the date on which levy was introduced viz. 1-7-2003. An amendment in S. 67 was made effective 13-5-2005 to levy service tax on advances received for the services to be provided. However, since this amendment was made later i.e., from 13-5-2005, it could not have retrospective effect according to the appellant. Further, the demand was made by the Assistant Commissioner based on audit objection. Relying on the decision in the case of Vikram Ispat v. CCE, Raigad 2007 (8) STR 554 (Tri.-Mum), the demand was held as barred by limitation and therefore penalty, etc. could not be upheld.

5. Penalty:

Deccan Mechanical & Chemical Industry Pvt. Ltd. v. CCE, Pune 2009 (16) STR 263 (Tri.-Mum.)

Order dated 24-3-2009

The appellant paid service tax with interest before issuance of show-cause notice and pleaded for waiver of penalty levied u/ s.76. The Revenue insisted on pre-deposit on the strength of judgment of the Supreme Court in the case of Union of India v. Dharmendra Textile Processor, 2008 (231) ELT 3 (sq. The Tribunal on weighing arguments by both the sides held that prima facie S. 76 was not comparable with penalty imposable u/s.ll AC of the Central Excise Act which provided for penalty on defaults arising on account of fraud, suppression or contravention of law with an intent to evade payment of duty and therefore held that on the strength of such case law, prima facie waiver of pre-deposit could not be resisted upon.

6. Rectification  of mistake  (ROM) :

Ridhi Sidhi Transport v. CCE, 2009 (16) STR 271 (Tri.-Bang.)

Order 25/ /2009, dated 5-5-2009.

In this case, the Tribunal in its order made a mention about contention of the appellant with regard to non-applicability of extended period of limitation. However, no finding on the issue was provided and therefore, ROM application was filed. Despite the Revenue’s view that ROM would mean review by the Tribunal itself, it was held that recalling was necessary in the interest of principles of natural justice and matter was decided to be reheard.

8. Valuation: Whether collection for ‘mess charge’ includible ?

Aditya College of Competitive  Exams v. CCE, 2009 (16) STR 154 (Tri.-Bang.)

In this case, the Revenue demanded service tax by including mess charge collected by the college in the value of taxable service. It was held categorically that there should be nexus between the amount collected and services rendered. Mess charges were collected for availing facility of the mess. It cannot be brought under the category of receipt for commercial training and coaching service and subject it to service tax. There is no provision for inclusion of any amount whatsoever collected by the appellant. Demand was held as unsustainable.

ORDERS OF CIC

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Right to information

 S. 2(f) :

S. 2(f) defines the word ‘Information’ :

Sunil Kumar had asked Department of Revenue a series of
questions aimed at eliciting from the Department of Revenue their interpretation
of the provisions of the Budget, the Finance Act and the notifications issued
thereof.

Citing certain decisions of the Commission and the definition
of information u/s.2 (f) of the RTI Act as well as on the basis of the
confidentiality of the Budget and its provisions including the Finance Act,
respondents declined to disclose the information through CPIO’s communication
dated 25-3-2010 and the decision of the Appellate Authority, dated 23-4-2010.

Central Information Commissioner (CIC), A. N. Tiwari, held
that ‘given the nature of the queries appellant had included in his RTI
application, it is obvious that he has been seeking from the respondents their
interpretation of various provisions of the Budget, the Finance Act and the
notifications thereof. This cannot qualify to be information u/s.2(f) and hence
has been rightly declined by the respondents.’

During the hearing, it was stated on behalf of the
respondents that on the basis of the feedback received from the citizens and
various trade and financial organisations, government, from time to time, issues
clarifications regarding specific points in various Acts, Rules, notifications,
etc. One such clarification has been issued by the Ministry of Finance covering
most of the grounds and the points mentioned in appellant’s RTI application.
Respondents were willing to provide a copy to the appellant for his reference
and use. They however reiterated their point that it was not open to any private
citizen to use the RTI Act to seek from the respondents their specific comments
about interpretation of laws, Acts, Rules and notifications. CIC held that
respondents’ contention is valid and was upheld.

[Sunil Kumar v. Department of Revenue, No. CIC/AT/A/2010/00342
dated 3-9-2010]

  •  Co-operative
    Bank

— whether Public Authority : S. 2(h) :

CIC Mr. M. L. Sharma has ruled that Co-operative Banks are
not Public Authority in the matter of two appeals by Preeti Goyal.

CIC stated that a bare reading of clause (h) of S. 2 of the
RTI Act would indicate that a private body or a co-operative society can be said
to fall in the domain of this clause, if it is substantially financed, directly
or indirectly, by the funds provided by the appropriate Government. Admittedly,
the society in question has not received any funds either from the Central
Government or the Government of Union Territory of Chandigarh. By this logic, it
cannot be said to be a public authority. Needless to say, once it is held that
the society in question is not a public authority, it has no liability to
provide any information under the RTI Act.

General Manager Mr. Dhillon of Chandigarh State Co-operative
Bank Ltd. appeared before the Commission and in a written representation relied
on certain decisions, the ratio whereof is that Co-operative Banks do not fall
in the ambit of S. 2(h) of the RTI Act.

The relevant para of the representation is extracted below :

“In the latest judgment reported as 2009 (5) RCR (Civil) 394
— Bidar District Central Co-operative Bank Ltd., Bidar v. The Karnataka
Information Commission, Bangalore and another and 2009 (5) RCR (Civil) 833;
Dattaprasad Co-operative Housing Society Ltd. v. The Karnataka Information
Commission, Bangalore and another, it has been held by the Karnataka High Court
that co-operative society does not fall within the purview of S. 2(h) of the RTI
Act. Similar view has been taken by the Bombay High Court in a judgment reported
as AIR 2009 Bombay 75, wherein it has been held that a Co-operative Bank
registered under the Maharashtra Co-operative Societies Act is not a public
authority.”

Based on above CIC held that the Chandigarh State
Co-operative Bank Ltd. is not a public authority.

[Preeti Goyal v. Chandigarh State Co-operative Bank Ltd.,
Appeals No. CIC/LS/A/2010/000657 & 658, decision dated 16-9-2010]

PART B : THE RTI ACT, 2005

In the last two issues of BCAJ, I had covered talks by Gopal
Krishna Gandhi and Nandan Nilekani at the inaugural and concluding sessions
respectively at CIC’s 5th annual convention held on 13th & 14th September 2010.
Hereunder is the brief summary of talks at the inaugural session by Mr. Veerappa
Moily and at four technical sessions in between :

Dr. Veerappa Moily agreed RTI has caught our imagination.

Right to Information has the key to strengthening
participatory democracy and ushering in people centred governance. For creation
of a global information society, it is essential to safeguard plurality of
opinions, and to promote ‘open access to networks for service and information
suppliers’ and ‘free expression of ideas’.

The 1st technical session ‘RTI and Public Private
Partnership Projects’
was chaired by A. N. Tiwari, CIC (now Chief Central
Information Commissioner).

He summarised the discussion and concluded that many
infrastructure projects on PPP mode satisfy the basic tenets of a Public
Authority as defined under the RTI Act. He also observed that in the years to
come the RTI may go a long way in operationalising the PPP more objectively. He
was of the opinion that the governments themselves should declare whether a
particular PPP project is a public authority under RTI Act or not.

The 2nd technical session : ‘Responsibility of Political
Leadership in Promoting RTI’
was chaired by V. Narayansamy, Hon’ble Minister
of State, Planning & Parliamentary Affairs.

Sri Narayansamy: Right to Information is a tool in the hands of citizens which keeps the bureaucracy on its toes. However, he stated that the citizens are suffering in getting the information, even though they fulfill all their obligations as required under the Act. They are given misleading, truncated and irrelevant information and some people misuse it as well. He commended the role of the Commissions and cited two decisions of CIC. In one of the cases the Commission directed the PMO to disclose the assets of the Ministers, which they complied and while in another case, the Commission, directed the DoPT to disclose file notings. The Hon’ble Minister expressed his grief over the killings/threats of RTI activists. He said that the Government is sensitive to the situation and is bringing about special legislation for whistle blowers protection and privacy Act. The role of the politicians, the law makers does not stop with the enactment, it includes efforts in ensuring implementation. Shri Narayansamy concluded that the Judiciary should be made accountable. All three wings of the government have to function under the provisions of the RTI Act.

The 3rd technical session : ‘RTI & Judiciary’ was chaired by Wajahat Habibullah. One of the panelists was Justice A. P. Shah. His conclusions were:

Conclusion : Demands for change to existing systems in the judiciary must be met rationally, bearing in mind the objectives sought to be achieved. Will the proposed changes promote public respect for the judiciary and the rule of law? Will they strengthen democratic principles ? How do they relate to the constitutional requirement of judicial independence? The guiding principle should always be accountability but let it always be commensurate with judicial independence and impartiality. The challenge is to develop mechanisms of accountability that do not undermine judicial independence.

The 4th Technical Session : ‘Challenges and Opportunities in RTI — Role and Responsibility of Media/CSO’ was chaired by Ms. Mrinal Pande, Chairperson, Prasar Bharti.

One of the panelists, Ms. Ravi Singh stated that RTI is as important as the right to food and right to education. Since constant vigilance is the price for freedom, the role of NGOs, the media, the courts and the civil society is important.

Another panelist, Shailesh Gandhi observed that all the stakeholders of the RTI have to work together to create a supportive environment for the Act to flourish.

                                      

                                            Part C: Information On & Around

   Ration offices in Mumbai and around:

Vigilance Committees play a crucial role in addressing the grievances of local residents against ration shops. But information obtained under the RTI has revealed that due to vacancies in these committees, several areas are under represented.

Anil Galgali, an RTI activist who procured this information, said, “A Vigilance Committee is supposed to meet once a month to redress the grievance of the residents. But the provision for a Vigilance Committee is meaningless if it does not have any members.”

The vigilance committee also ensures that commodities in rationing shops are sold as per the directives of the government. “An inefficient vigilance committee is a setback for below poverty line (BPL) ration card holders who rely heavily of essential items sold through ration shops. Absence of an efficient vigilance body means that there are no effective checks and balances on the public distribution system (PDS),” he added.

It has come to light that in five of the 53 rationing offices in Mumbai, Thane and Navi Mumbai, there is not a single member on the vigilance committee.

    University of Mumbai flouting RTI Act:

PIO of the University of Mumbai and also AA never responded to the RTI Application/Appeal filed by S. K. Nangia, RTI activist even after repeated reminders. However, on the application dated 15-3-2010, finally, AA fixed the hearing on 30-10-2010.

Now, the activist has written to Rajan Welukar, vice-chancellor at the University of Mumbai, highlighting the problems faced by citizens in seeking information from the university. He has also asked for reasons for the delay of more than six months for an appeal hearing to be held.

Senior official at the university states that they were tied up with other routine work in the university and shall write a regret letter to the applicant for the delay.

   Taxis in Mumbai:

According to the data provided by the RTO, from April 2009 to March 2010, 303 cases of refusals, 1,236 cases of meter tampering and over charging and 85 offences of rude behaviour were registered. In comparison, complaints launched between April and September shot up to 3,500, with the offence of drivers refusing multiplying eight times from 303 to 2,400 cases.

STOP PRESS

Information on selection of Judges:

A two-judge Bench of the Supreme Court wondered whether the time had come to make public the details of appointment of judges to the Supreme Court and High Courts. A Bench comprising Justices B. Sudershan Reddy and S. S. Nijjar referred to a constitution Bench, the crucial question on disclosing correspondence between the Chief Justice of India and the Law Minister on appointment of HC and SC judges under the RTI Act.

This is a significant development as 19 High Courts have opposed the order of the Delhi HC allowing disclosure of information on appointment of judges. Even the Delhi HC has opposed the pronouncement on administrative grounds. The sole exception is the Gauhati HC.

Echoing the views of the HCs, Attorney General G. E. Vahanvati told the Bench, “Information made available to the CJI in respect of appointment of judges of HCs as well as the SC is held by him in trust and in fiduciary capacity.”

Justice Reddy said, “The current debate is a sign of a healthy nation. This debate on the Constitution involves a great and fundamental issue.” Writing the judgment for the Bench, he said precedents relating to interpretation of the Constitution on this issue need not mean stagnancy. “The ultimate question must be, what do the words of the text (Constitution) mean in our time,” he said. The bench framed the following questions for the consideration of constitution Bench:

  •    Whether the concept of independence of judiciary requires and demands prohibition of furnishing of the information sought?
  • Whether the information sought amounts to interference in the functioning of judiciary?

  •     Whether the information sought cannot be furnished to avoid any erosion in the credibility of the decisions and to ensure a free and frank expression of honest opinion by all constitutional functionaries, which is essential for effective consultation and for taking the right decision ?

  •    Whether the information sought is exempt u/s.8(1)(j) of the RTI Act?

Very sensitive and crucial issue for RTI to get wide spectrum of coverage now awaits fill this judgment gets pronounced.

Right To Information

Part A: Decisions of the Court and CIC

S. 2(h), 2(f), 8(1)(e), 8(1)(j) of the RTI Act :

    It is a very unusual court case when the Supreme Court of India (SCI) files writ petition to the Delhi High Court (DHC) ! The issue came up before the DHC whether the Chief Justice of India (CJI) is a Public Authority and whether CPIO of the SCI is different from the office of the CJI and if so, whether the RTI Act covers the office of CJI.

    The writ petition covers a number of issues and the judgment runs into 70 printed pages (85 paras). Decisions on some of the issues are reported hereunder.

  •      The CJI is a public authority u/s.2(h) of the RTI Act.

  •      Asset declaration by the SC Judges, pursuant to the 1997 resolution is ‘Information’ within the meaning of the expression u/s.2(f) of the RTI Act. In Para 36 of the judgment, the DHC gave a very significant interpretation for this expression ‘Information’. It says :

    As is evident, the definition is extremely wide; the crucial words are ‘any material in any form’. The other terms amplify these words, explaining the kind of forms in which information could be held by an authority. It also includes ‘information relating to any private body, which can be accessed by a public authority under any other law for the time being in force.’ Facially, the definition comprehends all matters which fall within the expression ‘material in any form’. There is no justification in cutting down their amplitude by importing notions of those materials which are mandatorily held by it. The emphasis is on the information available, having regard to the objectives of the Act; not the manner in which information is obtained or secured by the authority. Thus, inter se correspondence of public authorities may lead to exchange of information or file sharing; in the course of such consultative process, if the authority borrowing the information is possessed of it, even temporarily, it has to account for it, as it is ‘material’ held. As far as the later part of the definition, i.e., accessing of information by or under any law is concerned, it appears that this refers to what is with a private organisation, but can be accessed by the public authority, under law. The Court deduces this, because the theme is included by the conjunctive ‘and’; but for such inclusion, such private information would not have been subjected to the regime of the Act. Therefore, it is held that all ‘material in any form’ includes all manner of information; the absence of specific exclusion leads this Court to conclude that asset declarations by judges, held by the CJI are ‘information’, u/s.2(f).

  •     CJI does not hold such declarations in a fiduciary capacity or relationship and hence not exempt under clause (e) of S. 8(1) of the RTI Act.

  •      Contents of asset declarations pursuant to the 1997 and the 1999 Conference Resolution are entitled to be treated as personal information, and may be accessed in accordance with the procedure prescribed u/s.8(1)(j). Here, I also reproduce para 62 of the judgment which is very enlightening :

    The right to access public information, that is, information in the possession of State agencies and governments in democracies, is an accountability measure empowering citizens to be aware of the action taken by such state ‘actors’. This transparency value, at the same time, has to be reconciled with the legal interests protected by law, such as other fundamental rights, particularly the fundamental right to privacy. Certain conflicts may underlie particular cases of access to information and the protection of personal data, arising from the fact that both rights cannot be exercised absolutely in all cases. The rights of all those affected must be respected, and no single right must prevail over others, except in clear and express circumstances. To achieve these objectives, and resolve the underlying tension between the two (sometimes) conflicting values, the Act reveals a well-defined list of 11 kinds of matters that cannot be made public, u/s.8(1). There are two types of information seen as exceptions to access; the first usually refers to those matters limited only to the State in protection of the general public good, such as national security, international relations, confidentiality in cabinet meetings, etc. The second class of information with State or its agencies, is personal data of individual citizens, investigative processes, or confidential information disclosed by artificial or juristic entities, like corporations, etc. Individuals’ personal data is protected by the laws of access to confidential data and by privacy rights. Often these guarantees — right to access information, and right to privacy, occur at the same regulatory level. The Universal Declaration of Human Rights, through Article 19 articulates the right to information; Article 12 at the same time, protects the right to privacy :

    “no one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation. Everyone has the right to the protection of the law against such interference of attacks.”

    [CPIO, Supreme Court of India v. Subhash Chandra Agarwal & Anr., W.P. (C) 288/2009 decided on 2-9-2009]

 S. 8(1)(a), (e) and (j) of the RTI Act :

    The applicant, Sh. Chetan Kothari (of Mumbai) filed an RTI application with the CPIO, Ministry of Health & Family Welfare seeking information about medical, surgical or such other health-related problems of the Prime Minister. Specific points as follows :

    (a) Major and minor types of operations done on the Prime Ministers of India during their tenure as Prime Ministers during the last five years, giving yearwise break-up of major/minor surgeries separately;

    (b) Medical-related expenses incurred during each such operation, giving yearwise break-up of last five years;

    (c) For how many days were the patients hospitalised during such major/minor operations giving yearwise break-up with names of the hospitals for last five years;

    (d) Who bore the medical expenditure, whether deducted from PM’s salary or paid by the Government of India in a yearwise break-up form;

    Both CPIO and the first AA refused the information sought on the ground that the medical care scheme for the Prime Minister being a classified document, information pertaining to the same was exempt from disclosure.

The evasive response of the Respondent Public Authority compelled the appellant to file a second appeal before the ere. The appellant contended that denial of information by the respondent public authority without quoting the appropriate Section, under which exemption from disclosure was sought, indicated the deliberate attempt of the public authority of hiding the information and leading to wrongful denial of information.

Extracts from  the decision:

  •     The first query seeks information about the number of major and minor operations done on the Prime Minister / s during the last five years. This information is an indicator of the health and medical history of the present Prime Minister of the country and is classified as sensitive and ‘Secret’ information as per the Government Notification as also defined in the Office Memorandum of the Government of India, Ministry of Home Affairs, dated 6-2-2002 titled Guidelines on review of departmental security instructions wherein the Clause 2.1 of the Security Classifications clearly defined ‘Secret’ as “…. information and material, the unauthorised disclosure of which could be expected to cause serious damage to the national security or national interests or cause serious embarrassment to the Government in its functioning”. Thus this information is exempt u/s.8 (l)(a)’of the RTI Act since disclosure of information about the health and/ or medical problems of the Prime Minister could be misused and/or abused to the detriment of the national interest and security. Hence, such sensitive information, which could jeopardize national security and interest, need not be disclosed.

  •     In so far as the information as sought by the appellant against the points (b), (c) and (d) is concerned, some information already exists in the public domain like the information pertaining to the present Prime Minister’s by-pass heart surgery, number of days spent in hospital, medical expenses incurred for the operation and as to who – paid for the operation.

The remaining information, if any, still unavailable in public domain, despite the wide coverage by the media, deals with information of personal nature and is exempt under the scope of S. 8(1)G) of the RTI Act. In fact, the appellant has not made out a case that the said information is sought to serve any cause of larger public interest.

  • The respondent in his oral submissions has further sought exemption from disclosure of information under provisions of S. 8(1)(e) of the RTI Act, on account of the said information being of fiduciary nature between the Prime Minister and his team of doctors and medical experts. At this juncture, ‘fiduciary relation’ needs to be analysed in the light of its various connotations. The word ‘fiduciary’ is derived from the Latin termfiducia meaning’trust’.

The fiduciary relationship can also be one of moral or personal responsibility due to the superior knowledge and training of the fiduciary as compared to the one whose affairs the fiduciary is handling. In short, it is a relationship wherein one person places complete confidence in another in regard to a particular transaction or one’s general affairs of business.

S. 16 of Indian Contract Act also clarifies ‘fiduciary relationship’ while defining ‘Undue Influence’.

In fiduciary relationship, a person with the legal duty to act primarily for another’s benefit enjoys a position of trust, good faith and responsibility.

Thus the word ‘Fiduciary’ is often used as an alternative term for ‘trustee’. The relationship between doctor-patient, lawyer-client or banker-customer are the various examples of fiduciary relationship. Thus, the Respondent Public Authority stands in fiduciary relation with the Prime Minister, holding the information in trust/ confidence.

In view of the above-mentioned facts and circumstances of the case, the Commission observes that the information, as sought by the appellant, and if not already available in the public domain, the respondent public authority holding the said information in fiduciary capacity on behalf of their patient (in this case, the Prime Minister), is exempt under provisions of S. 8(1)(e) of the RTI Act. So whether the patient is a Head of a State or a common person, the information nevertheless re-mains fiduciary and is exempt from disclosure to the public at large,since it is held in great confidence and trust.

Thus, it was held by the Commission that the information as sought by the appellant is exempt on the threefold grounds of national security, protection of individual’s right to privacy and also because the information is available with the DGHS in fiduciary capacity.

  • Therefore, among the information sought, the in-formation about the health and medical problems of the present and former Prime Ministers which already exists in the public domain, due to extensive media coverage or otherwise, like the recent cardiac surgery of the present Prime Minister, may be provided by the CPIO by 15 November, 2009 to the appellant.


[Sh. Chetan Kothari v. 1. Ministry of Health & Family Welfare 2. DGHS, CIC/ AD/C/2009/000620 decided on act. 15, 2009 by CIC Annapurna Dixit]


Part 2 : The RTI Act

Continuing from October & November BCAl, the summary of two reports :

One study by PriceWaterhouseCoopers (PWC), appointed by the Department of Personnel and Training (DOPT), is titled as ‘Understanding the key issues and constraints in implementing the RTI Act.’ Its final report as Executive Summary is published in June 2009.

Second study by National Campaign for People’s Right to Information (NCPRI) and RTI Assessment Analysis Group (RaaG) in collaboration with number of other social bodies including TISS, Mumbai under the title ‘Safeguarding the Right to Information’.

DOPT-PWC report    :

Common infrastructure & capacity  building:

The study also focussed on the information provid-ers to understand how well-equipped the Government/PA machinery is to respond to the needs of the RTI. This was studied from various aspects – training/knowledge, usage of IT, availability of basic infrastructure (like availability of photocopier at Panchayat level), etc. and whether adequate bud-gets existed to address the limitation.

o Key issues:

  • Record  management:

o More than 38% of PIOs stated ineffective record management system for delay in pro-cessing

o Approximately   43% of the  PIOs  were  not aware of the record  management  guidelines

  • Training/Knowledge:

o Approximately  45% of PIOs mentioned  that they had not been provided  training  in RTI

o Approximately 43% of PIOs were not aware of the proactive disclosure of their PAs

o Approximately 39% of the PIOs were not aware of key SIC (State Information Commission) judgments

o Training was limited to the provision of the RTIAct. Key aspects related to public dealing, motivation, technology, service levels, etc were not addressed.

  • Usage of information  technology:

o Lack of software application capturing details mentioned in S. 25(3)

o Lack of software application to improve effi-ciency at the Information Commission

  • Low motivation  of PIOs :

o Most of the PIOs have taken up the role un-willingly, leading to low motivation among them. Often, junior officers have been given the role of the PIOs and First Appellate Authority

o There was a perception among PIOs that lack of adequate budget and infrastructure ham-pers RTI implementation

o Approximately 89% PIOs said that there was no additional allocation of staff for RTI, while their work has increased.

The gaps highlighted above are partly due to lack of clear accountability established through appropriate Government rules and lack of controls to measure the level! effectiveness of implementation. This has been addressed in the report through detailing the roles and responsibilities of various entities and establishing a control mechanism through the use of IT and Third-Party Audits.

o Recommendations:

  •     Re-organisation of record management system to promote information management. A separate study is recommended to improve the current record management guidelines and make them ‘RTI friendly’.

  •     The following interventions in training to be taken:

o Knowledge Resource Centre should be the owner of developing and updating the training content.

 o At the State level, the State Nodal Department Agency should design a training implementation plan with support from the State Administrative Training Institute and National Training Agency.

  •     Head of the Public Authority should own the responsibility of training the officials in its Department through State Administrative Training Institute or State-empanelled agencies.

  •     Preparation of RTI ready plan: It is suggested that each Public Authority should do a self evaluation and identify areas of improvements and budget requirements. This would help in meeting the infrastructural needs, thereby meeting the requirements of the Act.

  •     In order to ensure good performance of PIOs in implementing the RTI Act :

    Allocation of responsibility of PIOs and AAs ~ to senior level officials in a Public Authority
is required.

o A mandatory column on the PlO’s performance must be added into the forms of Annual Confidential Reports (ACRs)/even if the posting as PlO is only a part of the over-all responsibilities handled by him/her.

o A monetary incentive for the PIOs may be considered at PA level. Often, the PIOs are”‘ liable to pay penalty, for reasons beyond their control. So while a penalty has been man-dated by the Act, the PAs should also get rewarded for good performance. This is important at places where PIOs handle a high volume of RTI applications.

  • Specific software applications/’information request management’ for implementation at Pub-lic Authority level and at the Information Commission.

  •     Usage of RTI-compliant standard template for quick and rational responses to the applicant.

  •     The ARC report had suggested that as a one time measure, GoI should earmark 1% of the funds of all flagship programmes for a period of five years for updating records, improving infrastructure, creating manuals, etc. (an amount not exceeding 25% of this should be utilised for awareness generation). This was a good suggestion to address the above-mentioned issues. On the  same lines,  it is suggested that  all Central and State Ministries/Departments should earmark 1% of their planned budgets for implementing the recommendations suggested in this report.

Raag  & NCPRI    Report:

Current    status and  preliminary findings:

3) Analysis of RTI Rules made by States and High Courts:

Background:  The RTI empowers State Governments and Competent Authorities to frame rules to operationalise the Act, as also to educate both Government functionaries and citizens about the Act. These rules are critical, since they detail application fees, payment for information requested, and mode of payment. Moreover, the RTI Act [So 7(5)] states that the application fee shall be ‘reasonable’, so as to facilitate the use of the Act by ordinary citizens.

The People’s RTI Assessment 2008 is analysing the RTI rules made by the Central and State Governments (appropriate government) and the Supreme Court, High Courts, the Parliament and State Legislatures (competent authorities) to determine whether they keep with the Act in letter and in spirit, and how people and transparency friendly they are. The necessary data was collected through desk research and by filing RTI applications asking for the required information.

The analysis of High Court RTI rules is now almost complete, as is that of the variety of RTI-related payment modes required by individual states.

Preliminary findings:

High Court R1’I rules – Of India’s 21 High Courts (excepting in [ammu and Kashmir), RTI rules have been framed for at least 17 (Allahabad, Andhra

Pradesh, Assam, Chhattisgarh, Delhi, Gujarat, Himachal Pradesh, Jharkhand, Karnataka, Kerala, Kolkata, Madras, Mumbai, Orissa, Patna, Punjab, Haryana, and Rajasthan).

A detailed analysis of these rules suggests that many of these rules seem to be in violation of the RTI Act, and some go beyond the scope of the RTI Act, under which they have been framed.

For example, the High Courts of Karnataka, Chhattisgarh, Delhi, Gujarat, Punjab and Haryana have through the rules, sought to add exemptions over and above the exemptions specified in the RTI Act, specifically in S. 8(1) and S. 9. These High Courts have also sought to set up, through the rules, an appeals process which is at variance with that laid down in the RTI Act. The RTI rules of the High Courts of Delhi, Kolkata, and Gujarat also ignore the penalties specified in the RTI Act and specify their own penalties which are at variance with the ones specified in the RTI Act.

Similarly, the High Courts of Patna, Punjab & Haryana, Gujarat, Delhi, and Himachal Pradesh have framed rules that explicitly violate S. 6(3) of the RTI Act. Whereas the RTI Act says that where a PlO receives an application that in whole or part asks for information that is with some other public authority, the PIa must transfer that information to the concerned PIa within 5 days. However, the rules of the said High Courts state that all applications shall be rejected if the information they seek is outside the jurisdiction of the public information officer. These rules go on to declare that applications will also be rejected if the information they seek can be obtained under High Court rules or other general rules (Civil/Criminal) operational in a High Court. This is despite the fact that the RTI Act specifies that where there is an inconsistency with any other law, the RTI Act will prevail (S. 22).

All this is despite the fact that there are several rulings of the Supreme Court of India saying that rules cannot go beyond or modify the statute under which they are framed.

Modes of payment – In filing RTI applications in states other than the one you reside in, a major problem is the transmission of application fee and the additional fee that is to be paid for photocopying, etc. Different states prescribe different modes of payment (and different rates of payment). In some states they only accept treasury chalans, but making treasury chalans in Delhi for other states has proved to be nearly an impossible task and despite spending nearly a week running around, we have not yet been successful. Others demand court fee stamps or non-judicial paper of their state – which of course is not available in Delhi or in any other state!

Demand Drafts are also sometimes problematic, since these can only be accepted if made in the name of a specifically-designated official and the name of the designated officer is often not available, not even on the PA website or the State RTI portal. The RAAG team had to call up each department, and even then it was difficult to get this information. In many cases, we were thus compelled to request our teams in the concerned state to make payment on our behalf. But this is not possible for all citizens to do.


Part C : Other News

Blatant case of corruption    exposed:

In a blatant case of corruption, a civic body spent Rs.2.5 lakh on fitting paver blocks on a particular road. But the road continues to be in as pathetic a state as ever.

On paper, the Kalyan-Dombivli Municipal Corporation (KDMC) is said to have got the work done from a contractor, even paid him the money. But the paver blocks are nowhere in sight.

As per papers available with Mumbai Mirror, paver blocks were to be installed on a 300 metre stretch of Gaushala Road in Kalyan (W). The task was sanctioned in March 2008 and work began in November 2008, the work was completed in January 2009. What’s more, a month later KDMC even paid the contractor Rs.2.5 lakh !

The seam was exposed after Narsinh Deshmukh, from Kalyan, obtained details under the RTI Act, and even filed multiple complaints. When nothing came of the complaints, he decided to go on a hunger strike.

“I just sat on the footpath with  all the documents. I also  initiated a signature campaign. However, hours after  I began my hunger strike, it started raining heavily  and my resolve was weakened,” he said.

But friends and locals who had seen the papers pertaining to the road, got him umbrellas and stood by him.

Finally, KDMC Commissioner Govind Rathod heard about Deshmukh’s hunger strike, and decided to check things out. “I went to the road and found that paver blocks were not in sight. Later, I found that our engineers had got the paver blocks fixed on another road, which was a private area,” confirmed Rathod. He added that it is nothing but a blatant case of corruption.

Rathod  immediately    ordered an inquiry,  and even issued show-cause notices to a deputy engineer and junior engineer concerned. It was only after the inquiry committee was set up that Deshmukh called off his hunger strike.

Rs.28 lakh  on decoration, mostly  on flowers!

When Karnataka Government decided to hold cabinet meeting in Gulbarga, they spent Rs.28 lakh on decoration alone – most of it on flowers. Information was obtained by The Times of India by filing RTI query.

The decoration expenditure included putting up many buntings and welcome arches for 34 ministers, their secretaries and staff, who had taken the trouble of travelling 623 km from Bangalore to Gulbarga for the cabinet meeting.

The total expenditure for this one meeting was a shade lower than Rs.1 crore – Rs.92.39 lakh.

Speed-Post is now ‘snail’ post! !

An article sent through Speed-Post is supposed to reach its destination – be it any part of the country within 24 hours. However, Post Office data shows that 27,774 items sent even within Mumbai limits from Post Offices in the western suburbs overshot the deadline.

The 2006 postal directive to all Post Offices states that under the money-back guarantee scheme, the sender has the right to ask for refund in case the article does not reach within the stipulated time. “It is unfortunate that things sent to destination even within Mumbai do not reach on time,” said Dadar based RTI activist Milind Mulay. Articles, worth around Rs.5.90 lakh, were delivered late. Mulay claimed that all the senders should now demand for
a refund.

Political posters in Mumbai :

In 2008, political parties plastered the city with approximately 20 lakh posters and hoardings of candidates – birthdays, festival greetings, victories, welcomes, etc. Of these, just 1,590 were legal as they had taken permission from the BMC. This means 19,98,410posters, etc. were liable to pay a fine to the BMC – between Rs.1,000 and Rs.5,000 each.

RTI application has revealed that not a single political party paid the fine, a loss of Rs.30 lakh approxi-mately, to the BMC exchequer.

This year too, till September 19, of the 52,788 political posters, just 1,349 had BMC permission. Here again not a rupee was paid to the BMC – a loss of Rs.12 lakh. The same was true for 2007. There are no figures available for the pre-assembly and post-poll posters, etc., but the figures would be phenomenal.

In contrast, the BMC collected Rs.51,89,901 as fine from non-political hoardings, primarily of films, product advertisements, etc.

R. B. Bhosale, Deputy Municipal Commissioner (Special) said, “It is very difficult to nail an offender in the case of illegal posters/banners/hoardings. For instance, if it’s a banner celebrating Vilasrao Deshmukh’s birthday, we can’t go and ask him to pay the fine. Even if it has the signature of the party’s office bearer’s name, he washes his hands off, saying he hadn’t authorised it. For non-political hoardings there is always a mention of a store or a product and it is easier to nail the offender.”

Leader  of Opposition in RTI ambit  :

After ruling that the office of the Supreme Court of India comes under the ambit of the Right to Information (RTI) Act, the Central Information Commission has ruled that the office of the Leader of Opposition in the Lok Sabha was also covered under the RTI Act. It is a public authority as it is created by a notification of the government, but reserved his decision on whether the office was part of the Lok Sabha Secretariat or an independent office. Disregarding the orders of the ClC, the Lok Sabha Secretariat has not set up the information office for the leader of opposition as per the requirement of the RTI Act despite repeated letters from L. K. Advani’s office.

How  much of snacks, etc. in 8 months!

An RTI query revealed  that Puducherry  Chief Minister  V. Vaithilingam  and  his five colleagues  had spent  more  than  Rs.36  lakh  on tea,  snacks  and beverages while hosting visitors in just eight months between  Sept.  2008 and  April  this  year.  Welfare Minister  topped  the list by spending  Rs.l0.5  lakh.

Do the  Right  Thing:

The limes of India in the Editional on November 3, 2009 covers some significant points on life in a democracy. I reproduce it fully hereunder:
 
It has been four years since the Right to Information (RTI)Act came into force, ushering in a new era of transparency and accountability, or so it was hoped. While RTI might not have been the unqualified success many expected it to be, it is an important tool that civil society can use to keep the government honest. That’s why we are watching the debate raging over the appointment of the next Chief Information Commissioner (ClC) with some apprehension.

Civil society groups have every right to suggest a name for a post as important as that of the ClC. RTI is an instrument that gives citizens some measure of control over information, and it is understandable that civil society would be wary that excessive intervention from: the bureaucracy would blunt the Act’s powers. But by asking that decorated police officer Kiran Bedi be appointed to the top post and demanding that the merits of a different choice be explained to them, information rights activists have polarised the debate to the point of blackmaiL

Lobbies are a fact of life in a democracy, but the kind of pressure tactics that those lobbying on behalf of Bedi have employed are likely to put the government on the defensive. In entering into a confrontation with the government over the post of ClC, the activists have failed to take into account that it is not only they who have a stake in RTI and its functioning, the State is also a stakeholder, and as with all disagreements where many actors are involved, all views must be taken on board and a consensus involved.

Since its inception, RTI has met with mixed success. The results of a recent study into the conduct of information commissioners across the country indicate that only 27% of RTI applicants receive the information they asked for, while a significant chunk of the population remains unaware of how to file an application for information. Another potential problem is that only two of every 100 RTI Act violations are penalised. Even when Information Commissioners direct officers to release information, a majority- as much a 61% – ignore the order. With so many questions over the implementation of the Act, it is important that the debate over RTI is not restricted to the appointment of the ClC. Information rights activists should work towards strengthening RTI by beginning a discussion on how best to expand its scope.

(Arvind Kejriwal retorted on above as published in The Times of India on November 6, 2009. Though not reproduced here, due to constraint of space, you may view it on timesofindia.indiatimes.com)

Part B — Some recent landmark judgments

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1.
Board’s Circulars when in
conflict with SC’s decision : Whether binding ?

Supreme
Court (Constitution Bench) :

CCE v. Bolpur Ratan Melting and Wire Industries, 2008
TIOL 194 SC-CX-CB :

(i) In this case, a Bench of three Judges of the Supreme
Court made a reference to a Larger Bench whereby observations made in the
decision of the Supreme Court in the case of Dhiren Chemical Industries, 2002
(2) SCC 127 were referred to be clarified, since the decision in the case of
Dhiren Chemicals (supra) was given by a Bench of five judges, it was
considered appropriate that a Bench of similar strength hands down an
authoritative pronouncement.

 

(ii) Background :

In the case of Dhiren Chemicals (supra), the decision
of the Supreme Court in the case of Usha Martin Industries 1997 (7) SCC 477 was
overruled based on an interpretation of a particular phrase whereby benefit of
exemption notification was denied, however, as per Board’s clarification,
exemption was granted. However, during the hearing of case of Dhiren Chemicals,
it was pointed out that based on the Board’s Circular, benefit of exemption
notification was granted to many cases. These were likely to be reopened if
interpretation in the case of Dhiren Chemicals was to be followed. Therefore,
para in the judgment of Dhiren Chemicals (para 11 in SCC) included a para as
follows :

 

“We need to
make it clear that regardless of the interpretation that we have placed on the
said phrase, if there are Circulars which have been issued by the Central
Board of Excise and Customs which place a different interpretation upon the
said phrase, that interpretation will be binding upon the Revenue.”

 


This was done to ensure to bind the Department wherever
exemption benefit was granted.

 

(iii) The counsel for the assessee laid stress on the binding
nature of Circulars qua the revenue authorities and argued that even if a
circular ran counter to the decision of Supreme Court, the Revenue was bound by
the circular and it could not take advantage of the Supreme Court’s decision. It
was also contended that once a Circular was brought to the notice of the Court,
the Revenue’s appeal based on the ground contrary to the Circular should be
turned down.

 

(iv) The Apex Court in the instant case observed that while
Circulars issued by the Board are undoubtedly binding on the authorities under
the respective statutes, the law declared by the Supreme Court would be binding
in terms of Article 141 of the Constitution and as such, Circular cannot prevail
once Supreme Court order to deny appeal to the Revenue and lay content with the
Circular would mean that there is no scope for adjudication by the High Court or
Supreme Court and this would be against the concept of majesty of law of the
Supreme Court. The appeal by the Revenue was allowed.

 

2. Penalty u/s.11AC of the Central Excise Act : Whether
mandatory ?

Supreme Court : Larger Bench :

Union of India v. Dharmendra Textile Processors, 2008
(231) 3 ELT (SC)

 

(i) Background :

The Division Bench of the Supreme Court referred the
controversy involved in several appeals to a Larger Bench to examine whether the
view expressed in Dilip N. Shroff v. Joint Commissioner of Income-tax,
Mumbai,
2007 (219) ELT 15 (SC) was correct. The issue involved related to
whether mens rea was an essential ingredient for penalty leviable
u/s.11AC of the Central Excise Act, 1994, and whether or not there was a scope
for levying penalty below the prescribed minimum. The Revenue contended that
there was no discretion with the authority in the matter of imposition of
penalty and they were duty bound to impose penalty equal to the duty determined
or payable. The assessee’s contention was that it was open for the authority not
to impose any penalty, as the basic scheme of the said S. 11AC was identical to
one u/s.271(1)© of the Income-tax Act and in the given case, it was open to
the Assessing Officer not to impose penalty. The Division Bench held the view
that correct position in law was laid down in Chairman, SEBI v. Shriram
Mutual Fund & Anr.,
2006 (5) SCC (361). Hence, the matter was referred to a
Larger Bench.

 

(ii) The Division Bench also made reference to Rule 96ZQ and
Rule 96ZO of the Central Excise Rules, 1944. It was noted that in some cases,
the assessee challenged vires of Rule 96ZQ(5) and the Gujarat High Court held
that the said Rule incorporated the requirement of mens rea. The Division
Bench stated that even if Larger Bench took a view that penalty under this
clause was mandatory, it was open for an assessee to challenge vires of Rule
96ZQ(5). Further, it was also agreed that similar issue was involved in Rule
96ZO. However, the Additional Solicitor General submitted that in Rules 96ZQ and
96ZO, there was no reference to any mens rea as in S. 11AC where mens
rea
was prescribed statutorily. This was evident from the fact that extended
period of limitation was permissible u/s.11A of the Act. In essence, it was
contended that penalty was for statutory offence and it was observed that
proviso to S. 11A provided the time for initiation of action, whereas S. 11AC
meant only a mechanism for computation and the quantity of penalty. Thus the
onus lay on the Revenue to establish that extended period is applicable and on
crossing this hurdle, the assessee is exposed to penalty and the quantum is
already fixed. It was also observed that in the statutes where mens rea
exists, if any penalty limit or a maximum penalty, etc. is prescribed, it is to
be levied in accordance with the said limits, but if no variable is provided, no
discretion exists.

iii) On the other hand, on behalf of appellants, reference of SC’s decision in case of State of MP & Ors. v. Bharat Heavy Electricals, 1997 (7)SCC 1 was made to contend that even if the Court held that imposition of penalty was mandatory, yet there was a scope for exercise of discretion. It was further submitted that various degrees of culpability cannot be on the same footing and S. llAC could be con-strued in a manner by reading into it the discretion and that was considered a proper way of giving effect to statutory intention.

iv) Relevant provision of each of S. llAC, Rule 96ZQ, Rule 96Z0 and also of S. 271(1)(c) of the IT Act were gone into. Further, observations made in Chairman SEBI’s case were also gone into at length and it was contended that a specific Section in the SEBIAct viz. S. 24 dealt with criminal offences under the Act and its punishment. Therefore, penalty leviable under Chapter VIA of the said Act was neither criminal nor quasi-criminal, but related to breach of civil obligation i.e., default or failure of statutory obligation and as such, mens rea by the appellant was not required. A catena of decisions were gone into where it was held that mens rea was not an essential foundation for imposing penalty for breach of civil obligations.

v) The Court further observed that the decision of Bharat Heavy Electricals’ case (supra) was not of assistance to the assessee, as the same proceeded on the basis of concessions and even otherwise, it was not open to the Bench to read into a statute which was specific and clear, something which was not specifically provided. The Bench further observed, “The statute is an edict of the Legislature. The language employed in a statute is the determinative factor of legislative intent”. The Court cited observations of many decisions on similar issues which inter alia included, “Rules of interpretation do not permit the Courts to do so unless the provision as it stands is meaningless or of doubtful meaning. The Courts are not entitled to read words into the Act of Parliament unless clear reason for it is found within the four corners of the Act itself. (Per Lord Loreburn, L’C, in Vickers Sons)”. The Court at the end stated “it is of significance to note that conceptual and contextual difference between S. 271(1)(c) of the IT Act was lost sight of in Dilip Shroff’s case (supra).

vi) The explanations appended in S. 271(1)(c) entirely indicate the element of strict liability on the assessee for concealment or for providing inaccurate particulars while, filing the return. The penalty under that provision is a civil liability. The Section read with the explanations indicates that the said Section has been enacted to provide for a remedy for loss of revenue and willful concealment is not an essential ingredient to attract a civil liability as in the case of prosecution u/ s.276C of the IT Act. Accordingly it was ruled that penalty u/s.llAC of the Act was mandatory.
 

3. CENVAT Credit whether admissible on outdoor caterer’s service in canteen of a manufacturer:

Larger Bench  decision:

CCE Mumbai 5 v. GTC Industries Ltd., 2008 (12) STR (Tri.LB)

i) The issue in the instant case relates to whether or not service of an outdoor caterer provided in the canteen of a manufacturer be considered ‘input service’ within the meaning of the definition of input service under Rule 2(1) of the CENVAT Credit Rules, 2004. The definition contains two parts – the first being the definition of input service and the second part is an inclusive clause listing various services. The Revenue contended that the inclusive clause is limited only to services enumerated in the said clause and since the disputed service i.e., out-door catering service is not one of them, it will not qualify as an input service.

ii) The appellant’s contention on the other hand was that the term ‘includes’ enhances the scope of the definition and therefore, a restrictive approach cannot be adopted. The appellant also contended that the words in the definition ‘activities relating to business’ were followed by the words ‘such as’ which was further followed by a list of services. Thus, the term ‘such as’ was used to provide only an illustrative list of services and not exhaustive. Any activity that related to business could form part of the expression ‘input service’.

(iii) The appellant also discussed an extract of press note dated August 12, 2004 along with the draft rules issued by the Ministry of Finance prior to introduction of CENVAT Credit Rules, 2004 which provided indication of the object of the Legislature. The notified rules expanded the scope of the draft rules by including the activities such as coaching and training, computer networking, credit rating, share registry and security, etc. In view of this, the appellant submitted that the argument of the Department that the scope of the definition was restricted to the services specified in the inclusive part of the definition was incorrect inasmuch as the scope of the term ‘activities relating to business’ was expanded and illustrated further when the rules were notified. Thus, the Legislature intended to allow credit on all such services which were activities relating to business. It was also argued that Service Tax being a value added tax and a consumption tax, it essentially formed part of the value of the goods
services, the credit of which  could  not be denied.

iv) In support of the above, para 4.1 of CAS-4 was referred to, which defined ‘cost of production’, and under the head ‘direct wages and salaries’ subsidised food is considered as part of direct wages and salaries being fringe benefits. It was also noted by the Tribunal that it was mandatory on part of the factories to provide canteen facility and failure of which attracts prosecution and penalty u/s.92 of the Factories Act, 1948. Service Tax on outdoor catering service is paid by the manufacturer for running the canteen, irrespective of the fact whether subsidised food is provided or not. Since this cost has bearing on the cost of production, it was held that catering services have to be considered as an input service relating to the business and CENVAT credit in respect thereof would be admissible. The view of the Tribunal expressed in the case of Victor Gaskets India Ltd. & Others, 2008 (10) STR 369 was accordingly approved.




Right To Information

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Part A : Decisions of CIC and SIC



  • Concept of privacy
    vis-à-vis
    the public servant :


As reported in BCAJ of October 2008, 4 more Information
Commissioners have been appointed at the Central Information Commission, one of
them being the RTI Activist from Mumbai, Shailesh Gandhi. In the very first
month of performing as CIC, he has discharged his duties well. He has disposed
of 142 appeals, has issued show-cause notice for imposing penalty in 32 matters
and has levied penalty of Rs. 7,500 in one case. Hereunder, is a brief report on
one of the 142 appeals decided by Shailesh Gandhi :

Mrs. Shruti Singh Chauhan had sought information from
Additional Secretary (Home), Government of NCT of Delhi about prosecution of
certain officers during the period 1-1-2000 to 30-4-2007.

PIO replied that information relates to personal information,
the disclosure of which has no relationship to any public activity or interest
and it would cause unwarranted invasion of privacy of the individuals. First AA
dismissed the appeal “on grounds of non-merit of the case, as the information
sought for is voluminous, sensitive and does not serve any public interest.”


CIC held : Firstly, if charges have been investigated and
found to have been substantiated, leading to asking for a sanction for
prosecution, this information cannot be considered as relating to the privacy of
an individual. Acts of public servants, where there is a reasonable ground to
believe wrongdoing, cannot be a private matter of a public servant. It has been
well accepted that the charges against public servants must also be disclosed to
the people. It has also been held that Members of Parliament and other
representative bodies must themselves declare charges against themselves on
oath, even when they stand for an election. Given this background, a claim that
disclosing names of those against whom sanction for prosecution has been sought
is an invasion of privacy and has no public interest, is completely erroneous.
In any case, as soon as prosecution is launched, the names and identities of
those being prosecuted would be in the public domain.

Based on the above view, CIC allowed the appeal and ruled :
“The Commission disapproves of the practice of PIOs using the exemptions of S.
8(1) without providing reasoning. The Commission is likely to view such practice
as a denial of information without reasonable cause and take consequent actions
as per the law. This time however, we feel the ends of justice will be met by
directing the Public Authority to be more diligent when using the exemption
clause. The PIO will give the information to the appellant by 10th November
under intimation to the Commission.

[In the matter of Mrs. Shruti Singh Chauhan : Decision No.
CIC/WB/A/2007/01096/SG/0080, decided on 16-10-2008]


  •  Civil work relating to open pit in Mulund (W), Mumbai :


An interesting decision is given by Chief SIC, Maharashtra,
Dr. S. V. Joshi on 10-11-2008.

Shri S. K. Nangia filed a complaint application u/s.18 of the
RTI Act on 9-9-2008. His original application sought information from MMRDA
about details of civil work relating to an open pit in Mulund (W) which caused
an accident of a car falling in a pit on account of the same being left open and
unfenced. In reply, the PIO advised the applicant to seek this information from
police station. In response to the first appeal on PIO’s reply, the AA directed
the PIO to provide the information sought. However, it was still not furnished.
Shri Nangia then filed a complaint with the Commission. SCIC held :

Firstly, it was totally wrong on the part of the PIO to
direct applicant to seek information from the concerned police station. In this
case, information was really with MMRDA, but even if it was with police station,
it was the responsibility of the PIO to send that application to the police
station asking them to provide information directly to the applicant. This is
considered to be serious lapse on the part of PIO.

The applicant’s application is to get information about who
were in charge of work. Police has already registered the offence and judicial
verdict will come in due course. It is pertinent to note that applicant is not
asking who is responsible for this mishap. He is merely asking the names of
officers who were entrusted with overseeing and supervision. This information if
already not given to the applicant be given in 5 days time on the receipt of
this order.

Lastly, applicant has stated that he has spent time, effort
and money for filing an appeal with AA, filing fresh application with police and
making payment of charges to the Police Department for information which all
could have been avoided had the PIO provided correct and complete information
for which he demanded a token compensation of Rs.100. The Commission appreciates
the concern of the applicant that he wants to stress the point of accountability
and is really not interested in financial reimbursement. He ordered that this
amount should be given to the applicant by MMRDA by recovering it from the PIO.

In short, the PIO has to pay penalty for the delay of 38 days
i.e., Rs.250 * 38 of Rs.9,500. This be recovered from his salary in two
instalments and deposited as per the Government’s procedure. The copy of
challans having paid this amount be sent to the Commission for record.

[Shri S. K. Nangia, Mumbai v. PIO, MMRDA : Complaint
No. 2008/622/02, decided on 10-11-2008]



Part B : The RTI Act


Challenges of Change

When we are no longer able to change a situation,

we are challenged to change ourselves.

— Viktor Frankl

This year is the diamond jubilee year of glorious services of
BCAS. Theme of the Diamond Jubilee Conference held on 8th November was :
Challenges of Change — Always ahead
.

BCAS has always been ahead in its services to the profession, to its members and other CAs, CA students and society at large : the view endorsed by all speakers at this above conference.

However, at times I think that to be ahead holistically and in real terms, BCAS cannot be a bystander to just watch the changes that have been happening on the national scene and challenges that are being faced by concerned citizens. BCAS and its members can’t limit solving only challenges of change to the professional areas. On that yardstick, I believe that to be ahead, it has to gear itself much more proactively to the challenges of change that the nation faces.

The Right to Information Act has brought in changes which have challenged the sleeping and non-inclusive minds et built up in the governance of this country. Frankly, citizens have also remained passive and maintained a lackadaisical attitude and in keeping with the Indian psyche, have remained tolerant to all injustice, corruption, non-accountability, etc.

There are many stakeholders in the implementation of the RTIAct. They include: (1) Public Authorities and PIOs & AAs (information providers) (2) Information Commissions, States and Central (3) Central and State Governments (4) Indian Citizens (both urban & rural) (Information seekers) (5) Media (6) Activists’ groups, NGOs, CBOs, etc. (7) Competent authorities such as the Courts, the House of the people, etc.

The RTI Act has heralded citizens’ rights to be recognised, has operationalised the fundamental right of the citizen guaranteed under Article 19 of the Constitution of India and has empowered citizens to be part of democratic operation of the country. The Act has thrown a challenge to all stakeholders to get tuned to changes in the governance brought in by this revolutionary and extremely powerful Act, the likes of which India has never witnessed before. Prime Minister, Dr. Manmohan Singh, while inaugurating 3rd Annual Convention of the Central Information Commission on 3rd November talked on various challenges of change brought about by the RTI Act. He said:

There will be a major challenge for public authorities in the arena of information house-keeping. There is a challenge for the information seekers in not misusing the right available in the Act by making vexatious demands and thus deprive genuine information seekers of their legitimate claims on limited public resources and so on.

Mahatma Gandhi had once said: Political freedom has no meaning unless it leads to win economic, social and moral freedom. The Right to Information Act and National Rural Employment Guarantee Act (NREGA) are two acts which are tools to bring social and economic freedom respectively, which would then lead to moral freedom.

Weprofessionals, educated and intellectuals are the major stakeholders for the success of these two Acts. As Barack Obama, the President-elect of the USA said “So tonight, let us ask ourselves – if our children should live to see the next century, what change will they see? What progress will we have made? This is our chance to answer that call. This is our moment. This is our time …. “

We professionals need to raise the same questions to ourselves: How are we going to shoulder challenges of sweeping changes happening on the national scene on account of implementation of these two Acts: RTIand NREGA. Are we going to just witness sea change in the lives of millions of citizens with the operation of those two instruments legislated by the Government of India or be a part of the makers of this change, partners in advancing its benefits to really go ahead? I hope that in coming years BCASFoundation and BCASmembers becomepart of this movement of change and go ahead in bringing new standards of transparency and accountability, bringing positive change that shall give hope for better INDIA, happier inclusive society,so essential for experiencing the value of democracy.


                                                              Part C : Other News

•  Landlease of Gujarat farmers:

The farmers in Gujarat are moving RTIapplications to the State Government seeking documents related to land ownership. Armed with archaic documents prepared during the British Raj and written in rich Gujarati prevalent during the rule of the Gaikwads, farmers are approaching the State Government with a hope. The farmers are optimistic that the land leased to the then Bombay Province by their fore-fathers in 1912,for 99 years would be returned to them. The State Government, however, is unper-turbed and says the British did compensate the farmers for the land, and that there is no question of the situation taking a Singur-like turn.

Not prepared to wait until the lease period gets over in 2011, the farmers became active with RTI applications ever since they learnt that the State has allotted 1,100acres of land to the Tatas. However, they clarify that they are neither against Nano, nor are they creating a noise because of its arrival. “Documents in our possession are older than Tata Group’s presence in Gujarat. We are not trying to ride the wave and earn an extra buck. We are just seeking our land back, once the lease period is over.”

• RTI Activist Chetan Kothari :

Mr. Chetan Kothari writes in Sunday MID DAYof October 12, 2008: “I was duped to the tune of Rs. 11 lakh that I invested in plantation and holiday packages of Suman Motels Limited in the late 90s. I used RTI to get information about the company,so that I could pursue my case in the Court.” The two RTI applications revealed that despite 200warrants and summons issued in the name of the MD of the company, none of them were executed. This made his case strong as he was representing 600 people who were duped similarly.

Mr. Kothari believes that information is a tool which when used in a positive way can bring about a revolution and zeroing in on subjects requires a lot of reading and general awareness.

• Documentaries  on RTI :

The awareness about the RTI Act, 2005 is slowly catching up in the country. Helping this cause is a small tribe of documentary makers, who through the visual medium are trying to make people aware of RTI’s power.

Documentary-filmmaker Priyanka Tiwari, who works for a Delhi-based NGO Kabir that works on RTI,has made 15 short films in the last two years. She says apart from creating awareness, they also portray success stories. (Some of these CDs are available at BCAS Library.)

Satish Shinde from Films Division claims to have made the first feature film on RTI. “The challenge was how to make the act visually appealing,” recalls Shinde. The film has also been dubbed in 12 languages. Like NGO,Kabir, Shinde’s film is also widely used by NGOs. He feels that, generally, the RTI awareness has risen by 30 to 40%.

• BMC becoming Pro-RTI:

Getting information under the RTIAct will soon be just a click away. In a month’s time, citizens will be able to file their RTI application on the website of Brihanmumbai Municipal Corporation.

According to BMC officials, the process will be centralised and the applications will be forwarded to the civic body’s concerned departments. The payments can be made in the same way as property taxes are paid. The website will allow people to post their address, so that they can be provided with the necessary documents.

•  Refund    for delayed courier charges:

What if an important document couriered to you through the postal services reached you after a day’s delay? You would have either cursed the system or may not even have noticed it as most courier parcels hardly reach their destinations on time. But Dadar resident Milind Mulay decided not to take it lying down. Mulay used the Right to Information (RTI) Act to get a refund when two articles he had sent through speed post reached their destination after a day’s delay. He had sent two couriers to Thane and Kalyan from the Shivaji Park post office at Dadar.

He first did some leg-work and found out from the website of the Indian Postal Service about the rules and regulations in case of delay. The web site also has an option by which one can track the path of the courier. But the web site had not updated the path of his courier. So he went to the post office’s west division headquarters and asked them to give a copy of the delivery slips. The receipts showed that the parcels were not delivered on time. Mulay then wrote a letter to the post office asking for compensation for the delay. The officials at the post office did not bother to answer his letter, he then filed an RTI application.

The senior superintendent of the Mumbai city west division responded within 10 days and refunded the entire amount Rs.50 for the delay. He also said this was in accordance with the money-back guarantee scheme. The delay occurred due to a service fault and a detailed report has been sought from the respective section.

Mulay said he was prompted to file an RTI query as numerous people in the country faced this problem. More than the financial part, he wanted to show that the RTI Act can be put to everyday use and cut the red tape in the Government.


Limited Liability Partnerships

We continue our examination of various laws and the issues arising therein in respect to an LLP.

1. Conversion of firm or company into LLP :

    1.1 The LLP Act provides for conversion of a partnership firm and company into an LLP. This conversion is similar to the conversion of a firm into a company under Part IX of the Companies Act. Three issues which arise in respect of this conversion of a firm are the stamp duty, the income-tax liability thereon and the impact on tenancies of the firm/company. All of these contentious issues are very important for healthy growth of LLPs as a form of business in India. The Government must take steps to come out with clear-cut laws in this respect to avoid wasteful litigation.

1.2 Stamp duty :

(a) Para 6(b) of the Third Schedule to the LLP Act on Effect of Registration states that all tangible (movable and immovable) property as well as intangible property vested in the company and the whole of the undertaking of the firm shall be transferred to and shall vest in the LLP without further assurance act or deed.

(b) As explained earlier, stamp duty is on an instrument. If there is no ‘instrument’ of transfer, then no stamp duty can be levied.

(c) If there is a statutory vesting of the assets of the erstwhile firm/company in the newly incorporated LLP, there is no transfer under the Transfer of Property Act. Therefore, no conveyance is required and hence, there should not be any incidence of Stamp Duty.

(d) This view is also supported by the old decision in the case of Rama Sundari Ray v. Syamendra Lal Ray, ILR (1947) 2 Cal. 1 rendered in the context of a Part IX conversion. Applying the same principle, it is submitted that a conversion under Part X of the LLP Act, 2008 would not attract any stamp duty as it amounts to a statutory vesting of the assets of the firm/company in the LLP.

1.3 Income-tax :

(a) There is no transfer between the firm/private and the LLP and the word ‘transfer’ used is not in the sense of a ‘transfer’ as between a transferor and transferee, but is only meant to emphasise the vesting of the assets and liabilities in the LLP. Thus, there is no transfer as understood u/s.2(47) and u/s.45(1) of the Income-tax Act. Since there is no transfer u/s.45(1), the computation of capital gains should not arise.

(c) There is no transfer at the time of conversion of a firm/private company into an LLP as it is a case of a statutory vesting of assets and liabilities under the LLP Act like in case of Part IX of the Companies Act. In fact, it is possible to take a view that at no point of time do both the LLP and the firm/company exist. The firm/company is dissolved and the LLP is created simultaneously and it is the transfer which creates the LLP. Thus, since the two entities are not present at the same time, there is no transfer.

(d) This view has been upheld by the Bombay High Court in its decision of Texspin Engg. & Mfg. Works, 180 CTR 497 (Bom.). The Court held that a partnership firm can convert itself into a company under Part IX of the Companies Act, 1956 and further there would be no incidence of capital gains u/s.45(4) of the Income-tax Act. The ratio decidendi laid down by the Bombay High Court can also be applied in the case of conversion of a firm/company into an LLP. Hence, it is submitted that even though there is no express provision to this effect, the conversion should not attract capital gains tax. Incidentally, the Memorandum Explaining the provisions of the Finance (No. 2) Bill, 2009 provided as under :

“As an LLP and a general partnership is being treated as equivalent (except for recovery purposes) in the Act, the conversion from a general partnership firm to an LLP will have no tax implications if the rights and obligations of the partners remain the same after conversion and if there is no transfer of any asset or liability after conversion. If there is a violation of these conditions, the provisions of S. 45 shall apply.”

    It may be noted that neither the exemption provision nor restrictive conditions mentioned above are found in the Bill or in the Finance Act 2009.

1.4 Tenancies of the firm :

    One of the more contentious issues under the Rent Act is in regard to the position of a partnership firm which is a tenant when there is a change of partners. Can the landlord contend that there is an illegal sub-letting or assignment and hence, he can terminate the tenancy. There are several decisions on this subject and there is no clear-cut touchstone to determine under which situations can it be said that there is an illegal sub-letting and when there is not.

    These decisions deal with the case where the partners of the firm change hands. In the case of conversion of a firm into an LLP, the entity remains the same. Only its status undergoes a change. It is not a case where there is a transfer of assets. Hence, in my view, the provisions of illegal sub-letting/ assignment of the Rent Act are not attracted and the tenant would not lose the tenancy. However, the issue is not free from doubt.

1.5 Other issues in relation to conversion :

    1.5.1 Some other unanswered issues remain in relation to conversion of a firm/company into an LLP. One is relating to carry forward and set-off of unabsorbed losses. Would S. 79 of the Income-tax Act which denies such a set-off in the case of a change in shareholding apply ?

    1.5.2 Another issue is in relation to the continuity of service clause of the employees in the case of a conversion. It is submitted that there would be a continuity of service.

    1.5.3 Certain institutions such as the MIDC levy a very huge transfer charge for change of user. However, there is a concession in the case of involuntary transfers done by way of a Court order, e.g., mergers, demergers, etc. Such transfers attract a minimum processing fee of the MIDC. What would be the position in the case of conversion into an LLP is an interesting aspect which needs to be considered.

1.5.4 One issue which may gather steam in the coming years is that of reconversion of an LLP into a company. Can an LLP convert itself into a private/ public company is an aspect on which there is no clarity. The LLP Act is silent on this aspect. Part IX of the Companies Act also does not provide any clear-cut answer. The Companies Bill 2008 has done away with Part IX altogether. Hence, what would happen to a business which selects an LLP structure and after becoming profitable it desires to make an IPO is still a question. Obviously, an LLP cannot make an IPO. Would it ever be possible for the business to access the capital markets? This is one aspect which needs immediate attention or else LLPs would lose some of their sheen.

2. Merger    of companies and  LLPs:

2.1 One more issue which is worth consideration is whether an LLP can merge into a company or vice-versa. The LLP Act only deals with the amalgamation and restructuring of two or more LLPs.

2.2 However, the Companies Act is much broader in its coverage. It permits the merger of a transferor who is any body corporate with a transferee company which is an Indian company. The Companies Act defines a body corporate to include a company. The LLP Act provides that an LLP is a body corporate. Thus, it stands to reason that an LLP being a body corporate, it can be merged into a company. Since the ultimate authority for both companies and LLPs is the MCA, it would be desirable if they frame rules in this respect.

2.3 As stated above, the Companies Act provides that ‘transferor company’ includes any body corporate, whether a company within the meaning of this Act or not, but a ‘transferee company’ only means a company within the meaning of this Act. Hence, the Transferee Company cannot be an LLP and it must always be a company within the meaning of the Companies Act, 1956. Thus, the merger of a company into an LLP is not possible.

3. VCF regulations:

3.1 One of the main uses of LLPs globally is as Venture Capital Funds. In India, VCFs are regulated by the SEBIunder the SEBI (Venture Capital Funds) Regulations, 1996.

3.2 R.2 of these Regulations defines a Venture Capital Fund to mean a fund established in the form of a trust or a company including a body corporate.

Since an LLP is a body corporate, it can also be one of the forms for a VCF under the SEBI Regulations. However, R.15 provides that the VCF would raise money only through the private placement of its units. S. 32 and S. 33 of the LLP Act state only a partner of an LLP will make contributions to the LLP. There is no provision in the LLP Act for the issue of units. Hence, it is a moot point as to whether an LLP can issue units.

3.3 Further, the Regulations provide that the investee company must be a domestic company only. Hence, an LLP cannot attract funds from a SEBI Registered VCF.

4. Foreign tax credits:

4.1 Assuming that a foreign resident can invest in an LLP under the FEMA Regulations, another question which would arise is what would be the tax treatment of the income received by the foreign partner? An LLP is taxed as a firm and hence, the LLP would pay tax @ 30.9% in India. The draft Direct Taxes Code also continues this system of taxation. When the LLP distributes the after-tax income to its foreign partner, would he be able to claim a credit for the tax paid by the LLP ? Unfortunately, the answer is No. The tax treaty benefits will be lost in such a case and the foreign partner may once again pay tax on the income received by him. This is a great disadvantage for foreigners to invest in LLPs.

4.2 To address the above anomaly, the pass-through system wherein the LLP is ignored as a taxable entity and the partner is directly taxed in proportion to his share was desirable. In fact, press reports indicate that the MCA is keen on such an amendment to the Income-tax Act to bring taxation of LLPs in India at par with several western nations.
(To be continued)

Voices

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New Page 2

25. Voices


v
“Reservations in student admissions is much more defensible. We can aspire to
have world standards even with such reservations, but not if they are extended
to the faculty.”

— Montek Singh Ahluwalia, Deputy Chairman of Planning
Commission.


v
“This one gold medal must make us introspect as to why India, a country that has
successfully taken its place in the world as a democracy, is still handicapped
at this level.”


— Sonia Gandhi,
Congress President.

(Source : India Today, dated 15-9-2008)

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New tax haven blacklist likely

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New Page 2

24. New tax haven blacklist likely


Seventeen countries led by France and Germany decided to draw
up a new blacklist of tax havens, which could include Switzerland, in a first
step toward rewriting the rules of global finance.

The world’s 40-odd tax havens, such as the Cayman Islands and
Jersey, are known hideaways for undeclared revenue and host many of the
non-regulated hedge funds that came under fire following the recent financial
meltdown.

French budget minister Eric Woerth said the 17 governments at
the Paris meeting agreed to task the OECD with drafting a new expanded blacklist
of countries that fail to cooperate on tax evasion and transparency.

“Banking secrecy has its limits,” Woerth added. “Switzerland
has made progress… but we must take matters farther.”

(Source : The Economic Times, dated 23-10-2008)

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PART d: GOOD GOVERNANCE

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Shiv Nadar:

Shiv Nadar, chairman of HCL, states that India Inc is not doing enough at the philanthropy front.

Talking about “Shiv Nadar Foundation”, he says:

“I firmly believe that philanthropy is most effective and outcome-oriented when you ensure that your pledge actually gets spent. Disclosures further help build an environment of trust and transparency. Good governance is therefore not an added bonus; it is at the heart of what makes philanthropy successful. In its journey of two decades, we have operated on our core values of transparency and robust governance systems”.

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PART B: RTI Act, 2005

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DoPT of Ministry of Personnel, Public Grievances & Pensions have recently issued one Office Memo as under:

Sub: Disclosure of personal information under the RTI Act:

The
Central Information Commission in one of its decisions (Sh. Manoj Arya
vs. CPIO, Cabinet Secretariat: CIC/SIRS/P/2013/000058 of 25.06.13) has
held that information about the complaints made against an officer of
the Government and any possible action the authorities might have taken
on those complaints, qualifies as personal information within the
meaning of provision of section 8 (1) (j) of the RTI Act, 2005.

The
Central Information Commission while deciding the said case has cited
the decision of Supreme Court of India in the matter of Girish R.
Deshpandevs. CIC and others (SLP (C) no. 27734/2012) in whichit was held
as under:-

The performance of an employee/Officer in
anorganisation is primarily a matter between theemployee and the
employer and normally those aspects are governed by the service rules
which fall under the expression personal information, the disclosure of
which has no relationship to any public activity or public interest. On
the other hand, the disclosure of which could cause unwarranted invasion
of the privacy of that individual.” The Supreme Court further held that
such information could be disclosed only if it would serve a larger
public interest.

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From published accounts

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Section A:

Revision to Financial Statements

Compiler’s Note

The Companies Act, 2013 vide sections 130/131 permits revision of financial statements under the circumstances mentioned in the said sections. The Companies Act, 1956 does not contain similar provisions. However, some companies have resorted to revision of financial statements adopted by the Board of Directors, but before the same were adopted by the shareholders in the Annual General Meeting. Given below is one such instance where the financial statements have been revised for reversing the decision of the Board of Directors for recommendation of dividend. (Readers interested in similar instances can also refer BCAJ February 2013)

Nagarjuna Fertilizers and Chemicals Ltd 31st March 2013

From Notes to Accounts

Revision of Financial Statements

The Board of Directors at their meeting held on 3rd May, 2013 had considered and approved the Audited Financial Statements of the Company comprising of the Balance sheet as on 31st March, 2013, the statement of Profit and Loss and Cash Flow Statement for the year then ended together with significant accounting policies and other explanatory information.

The Directors had recommended a Dividend at a rate of 100% 1.e. Rs. 1/- per share on the fully paid up capital of the Company to be paid in accordance with the Articles of Association of the Company out of the profits of the Company, absorbing a sum of Rs. 5,980.65 lakh, apart from dividend tax of Rs. 1,016.41 lakh.

The recommendation of the Board for payment of Divided was based on Profits available and the expectation of realisation of government subsidy, and market outstanding which ensure the ability of the Company to meet its commitment in respect of Dividend payment and repayment obligations to the Lenders.

Consequent to the approval of the Board of Directors on a review of the financial position of the Company, the Board noted that in view of the non-receipt of subsidy from the Government of India which has accumulated to substantial amounts and the unlikelihood of receipt in the near term having regard to the increasing uncertainty in the economic situation, market realisations not being to the expectations, higher commitments and outlays on account of appreciated value of dollar, there could be a stress on the cash flows as the same would be required for the operations. The Company accordingly may not be able to meet its commitments of payment of dividend which is required to be paid out immediately on approval by the shareholders at the ensuing Annual General Meeting.

In view of the changed circumstances as stated above, the Board has reconsidered the decision to recommend the dividend payment as stated above and resolved to withdraw the recommendation made earlier and accordingly, the Board has resolved to cause revision of the financial statements of the year 2012-2013.

In view of the above decision, financial statements which were considered and approved at the meeting held on 3rd May, 2013 have been revised for reversal of the provisions made for proposed dividend and dividend tax aggregating to Rs. 6,997.06 lakh and consequent reversal of transfer to General Reserve Rs. 850.00 lakh.

From Auditors’ Report

As stated in Note 3, the financial statements for the year ended on March 31, 2013 approved by the Board of Directors and reported by us on May 3, 2013 have been revised to give effect of reversal of provision made for proposed dividend and dividend tax of Rs. 5,980.65 lakh and Rs. 1,016.41 lakhs respectively consequent to the Board’s decision

Your Directors consequent to a review of the financial position of the company, in view of the company facing severe financial stress owing to the non-receipt of subsidy from the Government on India which has accumulated to substantial amounts, market realisations not being to the expectations, higher commitments and outlays on account of appreciated value of dollar, the unlikelihood of the cash flow improving in view of the increasing uncertainty in the economic situation, have re-considered the Audited Annual accounts and Audited Financial Results of the company for the year ended 31st March, 2013.

The Board of Directors after careful re-consideration of the Audited Accounts and having explored all available options have approved the Audited Accounts and decided to withdraw the recommendation for payment of dividend to conserve the funds for the future in view of the present outlook of the Industry.

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LECTURE MEETING

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LECTURE MEETING:
Lecture Meeting on Important Provisions under the Companies Act, 2013, 24th October 2013



Investigation Office (SFIO), constitution of National Financial Reporting Authority (NFRA), Class action suits, Corporate Social Responsibility (CSR) etc.

After the success of the previous lecture meeting on the same topic in South Mumbai, the Society organised this second lecture in the suburbs to help members understand the various issues arising from these new provisions. The meeting was addressed by Mr. Himanshu Kishnadwala, Chartered Accountant.

More than 100 participants benefited from the analysis made by the learned speaker.

The Companies Act 2013 has introduced key provisions regarding several topics of importance including duties and liabilities of Directors, Auditor rotation, establishment of Serious Fraud The presentation and video of the Speaker is made available at www.bcasonline.org & www. bcasonline.tv respectively, for the benefit of all members and subscribers.

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ICAI and its members

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1. Some Ethical Issues

The Ethical Standards Board of ICAI has given answers to some Ethical Issues as under on Pages 694 and 696.

Issue No.1

Whether the information contained in the website of Chartered Accountants and/or Chartered Accountants’ firm can be circulated on their own or through e-mail or by any other mode or technique?

Response

Sub-paras (3) & (4) of para (m) in the Code of Ethics under commentary to Clause (6) of Part 1 of the first schedule to the C.A. Act prescribes that Chartered Accountants and/or Chartered Accountants’ firms should ensure that none of the information contained in the website be circulated on their own or through E-mail or by any other mode or technique except on a specified “pull” request. ‘Chartered Accountants’ firms would ensure that their websites are run on a “pull” model and not a “push model” of the technology to ensure that any person who wishes to locate the Chartered Accountants or Chartered Accountants’ firms would only have access to the information and the information should be provided only on the basis of specific “pull” request.

(ii) Issue No.2

Can a member put up his photograph on the website?

Response

Revised sub-para (8) of para (m) in the Code of Ethics under commentary to clause (6) of Part 1 of the First Schedule to the C.A. Act provides that display of passport size photograph is permitted.

(iii) Issue No.3

Whether a Chartered Accountant in practice can use expressions like Income Tax Consultant. Cost Accountant, Company Secretary, Cost Consultant or a Management Consultant?

Response

Council direction under Clause (7) of Part 1 of the First schedule to the C.A. Act prescribes that it is improper for a Chartered Accountant to state on his professional documents that he is a Income tax consultant, Cost Accountant , Company Secretary, Cost Consultant, whereas it is permitted to mention his degrees.

(iv) Issue No.4

Can a Chartered Accountant in practice give the date of setting up of the practice or date of establishment on the letterheads and other professional documents, etc.?

Response

Council direction under Clause (7) of Part 1 of the First Schedule to the C.A. Act prescribes that the date of setting up of the firm should not be mentioned on the letterheads and professional documents, etc. However, in the website, the year of establishment can be given on a specific “pull” request.

(v) Issue No.5

Whether a Chartered Accountant in practice can use the designation ‘Corporate Lawyer’?

Response

A Chartered Accountant in practice is not permitted to use the designation ‘Corporate Lawyer’.

2. ICAI Council Affairs

Attention is invited to the following Times of India Newspaper Report of 02-11-2013 from Chennai. Let us hope that the council issues detailed clarification on the issue.

“Holding that all is not well with the functioning of the Institute of Chartered Accountants of India (ICAI)the Madras High Court has decided to hear the CBI and the Chief Vigilance Commission (CVC) before passing Orders on PIL seeking CBI/CVC probe into the irregularities in the establishment of Rs. 97.5 crore centre of excellence at Nagpur.

“The ICAI is supposed to be the apex board to regulate the affairs of the body and monitor the functioning of its members. It also exercises disciplinary jurisdiction over its members. In case the apex body itself violates financial discipline, it is really a serious matter,” observed justice K. K. Sasidharan on Wednesday.

“Records indicate that all is not well with the statutory body. The council members have expressed their strong views and the President and Secretary on account of entering into certain financial dealing without taking the council into confidence. The transaction is not confined to the centre of excellence at Nagpur. There are other land dealings also involving substantial amount,” the judge said.

In his PIL, V. Venkata Siva Kumar wanted the court to order a probe by the CBI or the CVC into the project, and ‘unravel irregularities, conspiracy and criminal breach of trust’ committed by the president and other office bearers of the ICAI.

Minutes of the meeting revealed that the ICAI secretary had told the members that CVC regulations were not applicable to ICAI. The Nagpur land deal was cancelled due to protests by members.”

3. EAC Opinion

Accounting treatment of share application money pending for allotment invested by the holding company in subsidiaries:

Facts:

Consequent to State Electricity Reforms Transfer Scheme 2000. the erstwhile State Electricity Board (SEB) was reorganised into three Corporations namely, State Power Corporation Ltd. (SPCL), State Vidyut Utpadan Nigam Ltd. And State Jal Vidyut Ltd. we.f. 14-01-2000. The City Electricity Supply Area was separated as a subsidiary company of SPCL and christened as the City Electricity Supply Company Limited (CESCO) vide State Transfer of K Zone Electricity Distribution Undertaking Scheme, 2000.

SPCL (hereinafter referred to as ‘the Company’) is dealing with bulk purchase and sale of electrical power in the State and had a turnover of Rs. 12,197.66 crore in the financial year (F.Y)) 2007- 08. It purchases electricity from various power generation utilities. Further, it sells the electrical power to its wholly owned subsidiary companies holding distribution license under the Electricity Act, 2003. The company is a Government company and is holding 100% shares in its subsidiaries, which are also Government companies as ‘Investments’.

The funds received from the State Government are invested by the company in the subsidiary distribution companies as ‘share application money’. The allotment process from share application money to share capital rests with the respective subsidiary distribution companies. Pending allotment of share application money, these subsidiary distribution companies have utilised such amounts in the creation of capital assets.

The subsidiary distribution companies have negative net worth and, accordingly, the auditors advised the company to make suitable provisions in the annual accounts for diminution in the value of investments in accordance with Accountant Standard (AS) 13, “Accounting for Investments” considering that such investments in subsidiary distribution companies was made as long term investment.

Query:

Now, the company has sought the opinion of the Expert Advisory Committee on the issues: (i) Whether share application money is to be considered for making provision for diminution in the value of investments even though the shares for the same are yet to be allotted. (ii) Whether share application money, in respect of which shares are allotted subsequent to the end of the financial year but before the adoption of accounts of the company, should be considered as share capital for the purpose of making the provision for diminution in the value of investments. (iii) For making provision for diminution in the value of investments, whether the company can consider the fact that the revaluation of assets under progress and that the fair market value of assets would be higher than the historical value/cost of assets?

EAC Opinion:

The Committee notes that the erstwhile SEB was restructured into three corporations, one of which is the company. Further, its electricity distribution business has been divested to its wholly owned subsidiary companies. The company as well as its subsidiary companies are Government companies. The company has invested the funds received from the State Government as share application money in subsidiary companies, some of which is pending for allotment. In this regard the issue raised is whether the provision for diminution in the value of investments should made against the share application money, even though the shares for the same are yet to be allotted as on the balance sheet date. The Committee notes the definition of the term ‘Investments’ as defined in AS13, and ‘Advance’ as defined in the ‘Guidance Note on Terms Used in Financial Statements’, issued by ICAI.

After considering the above, the Committee is of the view that although the share application money pending for allotment may not give any benefits to the company (neither dividend, interest, rental nor capital appreciation) till shares are allotted against it to the company. However, since the money has been given to the subsidiary companies, this application money for shares may be considered to be held ‘for other benefits’. Further, the Committee notes that the money so provided has been utilised by the companies for acquisition of capital assets and all the companies being State Government companies operate as per the instructions of the State Government. Further, it indicates existence of a ‘contract of contribution’ to share capital against which shares have been allotted after the balance sheet date but before the approval of accounts. The Committee is therefore, of the view that all this indicates that irrespective of the fact that whether shares are allotted to the company or not, the money given as share application money would not be refundable to the company. Therefore, considering ‘substance over form’, the Committee is of the view that these are of the nature of long term investments. Accordingly, provision for diminution in the value of investments other than temporary should be considered against the same. Further, the Committee is the view that it should be disclosed in the financial statements with an appropriate nomenclature and notes to accounts so as to give the correct picture of the situation, viz., shares are yet to be allotted against these investments. The Committee is also of the view tht even if shares are allotted against such application money after the balance sheet date, but before adoption of accounts, there is no need for disclosing it as ‘shares’ till the date of allotment, as it is taking place in the subsequent year. However, additional disclosures regarding allotment (which takes place in subsequent year before adoption of accounts) may be made in the financial statements. (pages 720-724 of C.A. Journal of November, 2013)

4.    ICAI News

(Note: Page Nos. given below are from C.A. Journal of November, 2013)

(i)    Announcement:

All the members of the Institute of Chartered Accountants of India (ICAI) are hereby informed that in terms of the authority granted under Section 30(1)(i) of the C.A. Act, the Council of ICAI has prescribed Regulation 47 of the C.A. Regulations, 1988, which reads as under:

“No amount shall be charged from, or be payable by, an articled assistant or any other person on his behalf, directly or indirectly, whether by way of premium or as loan or deposit or in any other form in connection with his engagement as an articled assistant.”

In view of the above, charging of premium from articled assistants is misconduct under the provisions of C.A. Act and punishable u/s. 21B(3) of the C.A. Act (page 696)

(ii)    Health Insurance Scheme for Members of ICAI

ICAI has taken a major initiative for arranging in the form of specially designed Health Insurance scheme with the special features like no health check-up, no age limit & entry barrier, premium discount in lieu of cumulative bonus, 5% discount in premium to be paid to the Insurance company, where the Member has not preferred any claim in the expiring policy in case of renewal of the policy, wide coverage for pre-existing diseases etc. for Members & Students of ICAI. The scheme has been in force from 12th March, 2013 for the Members of ICAI. Please visit http:/icai. newindia.co.in, to apply online for Insurance policy and to view other formalities as well as details about the aforesaid insurance scheme. (page 804)

(iii)    Professional Indemnity Insurance for Members & CA Firms of ICAI

ICAI has arranged insurance protection for members in practice/firms in the form of specially designed professional indemnity insurance at a reasonable premium i.e. 85% discount in market rate. The scheme has been effective from 12th March, 2013 for the Members in practice/ Firms of the ICAI.

Members and CA firms desirous to avail the benefits of the aforesaid scheme may please visit http:/icai.newindia. co.in & online solution for the same. (page 804)

(iv)    64th Annual Report and Accounts of ICAI

The 64th Annual Report of the Council and the Annual Accounts for the year 2012-13 have been published in the Gazettee of India and will shortly be hosted on the website of the institute – www. icai.org. The same is being e-mailed to the members whose e-mail ids are on the record of the Institute.

In this connection, members who have not furnished their e-mail ids are requested to provide their e-mail ids to enable the said report being sent to them also. Further, hard copy of the above Report would also be forwarded to those desirous of the same. Accordingly, members desirous of a hard copy of the above Report may write, giving their membership number and complete postal address, to Shri G. Ranganathan, Deputy Secretary (e-mail: councilaffairs@icai.in). (page 806)

(v)    New ICAI Publication

Compendium of Opinions (Vol XXXI) (Page 813)

FROM THE PRESIDENT

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Dear members of BCAS family,

On 5th November 2013, the Indian Space Research Organisation launched Mangalyaan into the earth’s orbit on its 780 million kms journey to Mars from its launch base at Sriharikota. India is only the 4th country in the world to have successfully achieved this. It is indeed a proud moment for all Indians. Amidst all the other achievements and accolades related to this project, the one significant aspect which impressed me was the cost of the project; ? 450 crores, a fraction of what expeditions of other countries cost. This proves a point that India has technological wherewithal to carry out complex projects, innovating on the way. Congratulations to Dr. K. Radhakrishnan and his team for this achievement.

India has an abundance of entrepreneurial resources. But individual enterprise can achieve precious little if the environment is not enabling. There are many shackles that need to be broken. The state needs to play its role of the facilitator. In the times of elections, everyone has their wish list. I have mine too.

India has gained a name for itself for IT/ITES. But its true potential is in the manufacturing services. That’s where value addition happens. That’s where we can use our natural resources and the abundant skilled labour to its potential. And that’s where capital creation will happen. And this sector needs liberalisation in Land, Labour and Licences.

Licence means a permit from an authority to own or use something, do a particular thing, or carry on a trade. After the initial spurt of liberalisation, we have stopped opening up our economy. Whether it pertains to investments, way of doing business, transfer of ownership, access to national natural resources etc. There are restrictions needing multiple permits for most aspects of businesses. One-window-clearance is unheard of. The next government should commit itself to creating an enabling, facilitative, non-interfering and progressive environment.

Labour laws are another area which needs liberalisation. Traditionally, the state has always tried to control the labour force. Reasons are obvious; vote bank, extortion and what not. There are over fifty national laws and many more state-level laws. These laws have hampered the growth of the formal manufacturing sector. According to a World Bank report in 2008, heavy reform would be desirable. The executive summary stated,

“India’s labor regulations – among the most restrictive and complex in the world – have constrained the growth of the formal manufacturing sector where these laws have their widest application. Better designed labor regulations can attract more labor- intensive investment and create jobs for India’s unemployed millions and those trapped in poor quality jobs. Given the country’s momentum of growth, the window of opportunity must not be lost for improving the job prospects for the 80 million new entrants who are expected
to join the work force over the next decade.”

Gone are the days of Zamindari and Maaliki. Labour needs no protection. There are ways to prevent exploitation. Inclusive growth will ensure that capital and labour work in tandem.

In my opinion, land is going to the biggest spoiler for the India Story. Everybody believes in the India story. Some are hugely optimistic, some cautiously optimistic and then a few are cynics. The chief constituents of our GDP are agriculture, services and manufacturing. The contribution of Agriculture to the GDP in terms of percentage will only keep shrinking as other sectors grow faster. More and more agricultural land is being converted to NA for non-agricultural purposes. Moreover due to the restrictive nature corporatisation or cooperative farming is a non-starter. Any progress in agriculture will involve improving yields hence more harvests in a year and more crops from same land. Agriculture will then not be constrained for want of land.

Services are another major contributor to the GDP, who will soon reach a plateau as they are not capital intensive and thrive on cheap labour. Such contracts will flow to other developing countries as labour and real estate become expensive in our country. Even otherwise, this sector is largely urban-centric, as it needs qualified labour and infrastructure. The availability of land for this sector can be easily addressed partly by improving infrastructure and connectivity to peripheral areas or by simply changing Development rules by granting higher FAR/FSI. Vertical development suits this segment. So there seems to be no constraints to this sector for want of land. Same is the case for residential development. High-rise, high-density is a solution to address scarcity of land.

The manufacturing segment will raise its share in GDP significantly. India has great enterprise, talented workforce, availability of many raw material, natural resources and cultivable, development of ports and other infrastructure. However, land for manufacturing segment has special requirements. This facility needs horizontal development, which means it needs higher ground coverage as compared to any other development. The high-rise concept cannot work here. Also, it needs to be away from cities and farms. Hypothetically, if the manufacturing segment doubles its output in the next ten years, it will need twice the land that this segment occupies today. Where is this land? The Land Acquisition Bill makes getting land thatmuch more difficult. The states are shying away from helping aggregation. The courts are taking pro-farmer stands. Barring a few states like Gujarat, no state is in a position to allot land for manufacturing when investors are queuing up with opportunities of setting up large facilities in India. Industrial development Corporations are failing to make land available for manufacturing. In a place like Chakan, off Pune, MIDC has over 7,000 applications pending for allotment of land. SEZ’s, a great vehicle for organised manufacturing, have fizzled out.

Hence, availability of land will be a major bottleneck to India’s growth story.

Solutions are obvious. There is no rocket science. We are not lacking in ideas. We are lacking in our political will. Politicians are playing their game of vote banks. Growth can only benefit all. Thus, I would like my next government to promise liberalisation of Labour, Licences and Land. Here’s wishing everyone happiness and love.

With Warm Regards

Naushad A. Panjwani

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Direct Taxes

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Government notifies Cyprus as a “notified jurisdictional area under Section 94A – Notification No. 86/2013 dated 1st November, 2013

The CBDT has issued Order No. 5/FT&TR/2013 dated 04-11-2013 specifying the jurisdiction of the Dispute Resolution Panel at Delhi and Mumbai and the cases or classes of cases that they are assigned. The CBDT has also issued Order No. 6/FT&TR/2013 dated 04-11- 2013 specifying the reserve members of the DRP at Delhi and Mumbai. Both these orders are available at www.bcasonline.org

Procedure for dealing with Revenue objections – CBDT Instruction No. 16/ 2013 dated 31-10-2013

E-returns filed with payment of self-assessment tax to be treated as deemed defective and standard operating procedure notified by CBDT. – F.No. DIT(S)/II/CPC/2013-14/Unpaid self assessment tax/13798 dated 13th November 2013 – available on www.bcasonline.org

Circular clarifying DRP law under section 144C of the Act – Circular no. 9/2013 dated 19th November 2013

On analysis of the existing track record where there are unsatisfactory settlements, despite detailed procedure laid down by the CBDT, it has now fine tuned the procedure by awarding more powers to the supervisory authorities to fasten the process of settlement and prevent revenue loss for the Government as well as harassment to the tax payers.

CBDT has rectified its mistake made in Circular no. 5/2010 where it was inadvertently mentioned that Section 144C would apply from AY 2010-11 onwards. It is now clarified that section 144C is applicable to any order which proposes to make variation in income or loss returned by an eligible assessee, on or after 1st October, 2009 irrespective of the assessment year to which it pertains. Amendments to other sections of the Income-tax Act referred to in para 45.3 of the circular no. 5/2010 dated 3rd June, 2010 shall also apply from 1st October, 2009

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FROM THE PRESIDENT

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Dear Members,

By the time this issue reaches you, the mood would be to make plans to celebrate the last festival of the year 2012 – Christmas. It’s time for parties full of fun and high spirits. It’s that time of the year, where everyone is waiting for the year to end and eagerly looking forward for a new and fruitful 2013, by taking vows, setting goals and challenges for the coming year.

The Ministry of Finance has also started formulating plans and proposals for the Union Budget 2013-2014, and has invited suggestions from various Professional bodies and Industry and Trade Associations with respect to direct and indirect taxes. Many of our members must have assisted various industry and trade associations in formulating the suggestions. At BCAS, we are in the process of preparing the Pre-Budget Memorandum, and I invite suggestions on issues or areas that are of concern to large Tax payers, and which if accepted or implemented can bring a sigh of relief.

In order to develop our Society into a learning organisation besides the ongoing professional activities, the entire BCAS team, full of innovative ideas, determination and oneness of purpose, will continue to redefine the manner in which our Society operates towards achieving its vision and mission, albeit maintaining its values and traditions in 2013 as well, and will work towards giving value to members.

We have immensely benefited by the expert guidance and suggestions from our seniors and all of you, and I once again urge you to provide your feedback and suggestions on areas, where you would like your Society to progress and march ahead.

Last month, the death sentence given to Ajmal Kasab, the lone surviving terrorist involved in the 2008 Mumbai attacks, was executed after due process of law and a full and transparent trial. But still, for the victims’ kin, the loss of their dear and near ones is irreplaceable. By awarding the death sentence and executing it, India sent a clear message to the world that anyone who commits an unruly act of terror will not be spared.

Considering the judicial process in our country, the execution of Kasab within a period of four years after commission of the crime, is welcome, and one hopes will act as a precedent. Expeditious disposal of cases related to terrorism must become a rule and not remain an exception. Thereafter, speeding up of the judicial process must percolate to all other pending litigations.

With profound grief I have to inform you that Mrs. Vandana M. Randive, Sr. Accounts Manager of BCAS, working since last 17 years, passed away at a young age of 43 on 23-11-12 after a short period of illness. It is understood that stress was a major cause of this unfortunate and untimely incidence. May her soul rest in eternal peace and may God give her family the strength and courage to bear this irreparable loss.

This is definitely an eye opener for all of us. We must not only accept the fact that today we all are living under some stress or the other, but also take concrete steps to reduce that stress. It may seem that there’s nothing you can do about stress. The bills won’t stop, there will never be more hours in the day, and your career and family responsibilities will always be demanding. But you have more control than you might think. In fact, the simple realisation that you’re in control of your life is the foundation of stress management. Managing stress is all about taking charge: of your thoughts, emotions, schedule, and the way you deal with problems.

To identify your true sources of stress, look closely at your habits, attitude, and excuses:

  •  Do you explain away stress as temporary (“I just have a million things going on right now”) even though you can’t remember the last time you took a breather?

  •  Do you define stress as an integral part of your work or home life (“Things are always crazy around here”) or as a part of your personality (“I have a lot of nervous energy, that’s all”).

  •  Do you blame your stress on other people or outside events, or view it as entirely normal and unexceptional?

Until you accept responsibility for the role you play in creating or maintaining it, your stress level will remain outside your control.

I hope that in the New Year, you all will ponder over this and pay greater attention to your life and stressful situations, which in turn will have a larger impact on one’s health and will help to lead a healthy life. Just remember – We Work for a Living and not Live for Working.

Incidentally, the Theme for BCAS Calendar 2013 is “HEALTHCARE”. Good Health is a kind of Freedom, and being healthy gives us the freedom to live our life the way we want. The 12 months interlaced with subtle preambles of healthcare will guide you throughout 2013 towards Health and wellness.

I would end by a saying of our famous leader Mahatma Gandhi – “It is Health that is real wealth and not pieces of gold and silver”.

Hope you all had a wonderful 2012 and wish you all much purposeful and prosperous 2013 !!

With Warm Regards,
Yours truly,
Deepak R. Shah
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Ethics and u

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Shrikrishna (S) – My dear Arjun, how was your Diwali? Enjoyed?

Arjuna (A) – Yeah, it was cool. M-Vat date was extended. So I could relax.

S – But whenever I called, you were always out of your office.

A – Actually, my friend is contesting our Council’s elections. He used to take me along for canvassing.

S – Did you go for voting?

A – No. On the same day, we had a family gettogether. And after all, what is the use of voting!

S – Why? You should be concerned about who sits in your Council.

A – Our Council members do nothing except selfpromotion. They hardly care for the profession.

S – But then, that was all the more reason why all of you should have voted. It means you are yourself not serious about the profession. And then, what is the point in cursing the Council members? And have you enquired as to what they do in the council? I know a few of them who really slog for the members at the cost of their own practice?

A – I know, one should always vote. But the way the candidates were canvassing, it was nauseating. The less said the better!

S – Anyway! A few of my friends have received your Diwali greetings. But they said they don’t know you directly. How did they come on your mailing list?

A – While canvassing for my friend’s election, I thought, why not tap a few strangers for business. I took a few addresses from Satyabhama bhabhi.

S – But it is not permitted to write to such strangers. Don’t you know?

A – Why? What is objectionable about it? Other wise. How can you reach the potential client?

S – It is a misconduct for a professional.

A – This is too much! Whatever we do, you point out some misconduct. I think we should become Sanyasis. See, this is what our Council does. Then why should we vote for them?

S – Arey wah! Brilliant argument! Full of selfcontradictions.

A – Last time you told me, I should not do any business other than my practice. Now in practice, you are saying I should not even send greetings. Then how can I promote my practice?

S – See, your quality of service is your sole advertisement. Nothing else. You should build up reputation by your quality, sincerity and integrity.

A – Too idealistic! Remember, we are presently in Kaliyuga and not in Satyayuga. Who will listen to such orthodox thinking? In foreign countries, all this is permitted.

S – Are you sure about it?

A – I mean I have heard about it.

S – There were pressures on the Council too. But your Council in its wisdom rightly took a decision not to permit any form of advertisement. Unabashed publicity will ultimately work to your own detriment.

A – How?

S – Then resourceful firms will resort to rampant marketing. Can you afford to match that kind of spending?

A – That they are already doing. My friends are working there. They are fed up with the business targets.

S – To have such targets in itself is rather unethical. How can there be monetary targets for a professional firm?

A – Tell me then, what else is prohibited?

S – Just read clause 6 of the First Schedule. You should not solicit clients or professional work by circular, advertisement or even personal communication.

A – What if somebody does it for me?

S – No. The prohibition is for both direct as well as indirect publicity. Also, there is Clause 5 of the First schedule. It says, you cannot secure any work through the services of any person who is not your employee or partner. You cannot use any means which are not open to a CA.

A – Then how will a new entrant get any assignment?

S – You can approach another CA and request him for assignments. That is permitted. So also, you can respond to the tenders or enquiries issued by the users of professional services.

A – But why such restrictions?

S – Only then you can command respect. You can then be independent. Otherwise, you will be viewed by the society as a businessman. Remember, your profession is not a business.

A – It is a very slow process to build up confidence and reputation. Today’s world is so fast.

S – I agree. But your services are of personal and intimate nature. A satisfied client is the best advertisement. Quality alone will attract and retain clients; and not any other gimmick.

A – You mean to say, we should not advertise at all?

S – Not exactly. Certain ads are permitted – like changes in your partnerships; or dissolution; change of address or change in telephone numbers. But these should be in the nature of announcements. A bare statement of facts. Discretion should be used as to in which locality the concerned newspaper or magazine is circulated.

A – What about small classified ads?

S – That is also allowed. But only in the journal or newsletter of the Institute. Through this, you can give information about your services and seek work or even employment. It should contain only basic details like your name, address, phone, fax number and e-mail address.

A – But can we apply for empanelments?

S – Yes. But you cannot enquire whether any organisation is maintaining a panel. So also, having empanelled, you cannot make roving enquiries with such organisations.

A – I had heard that we cannot even quote our fees.

S – No. You can always quote your fees on enquiries being received or respond to tenders.

A – Some guys were after me, to have my name in their yellow-page directory. I refused since I was not very sure. Moreover, it was very expensive.

S – You can have it in the Directories published by Public Bodies or Private Bodies. But there are certain guidelines. Firstly, there should not be any extraordinary payment. It can be in the specified groups also. But it should be in your own town or city. It should be in normal print – but neither in bold font nor in a separate box.

A – Interesting. You mean, it should not be conspicuous.

S – That’s right. It should be in alphabetical or logical order. Not very prominent. No unreasonable payment. And any CA of that locality should be permitted to have his name in it. It cannot be exclusive for a few selected group of CAs. It can also be in electronic media.

A – What if you publish a book or an article?

S – You can mention your name but not the name of your firm. Even in your CVs when you deliver lectures, reference to your firm’s name should be avoided.

A – We started this discussion from my greeting cards. Can I not even mention the designation ‘chartered accountant’?

S – You can. In greeting cards or on invitation cards for marriages, other ceremonies, inauguration of your office, and so on. But remember, it should be sent only to your clients, relatives and friends!

A – I see CAs appearing on TVs, what should they do? Is it not their advertisement?

S – They have to use restraint. The details about themselves or of their firms should not be given in a manner that highlights their professional attainments.

A – And what about websites?

S – Websites are permitted; but I don’t have time to tell you so much in detail. Why don’t you refer to the detailed guidelines of your Council? There are as many as 22 points – about website!

A – In many journals, I see questions being answered by CAs. I feel, that is also a form of advertisement.

S – Yes. It is permitted. It can be in journals or magazines or newspapers or websites or TV channels. But remember, they should not mention anything beyond the fact that the person answering is a chartered accountant. No mention of his contact address; or his professional achievements.

A – My God! So many points involved! But I agree that I would not go to a doctor or a lawyer without any personal reference or recommendation. Certainly not by advertisement. It is futile for a professional.

S – Good. So better concentrate on quality. Growth will follow. More greeting cards will never fetch your clients.

A –  I agree; Bhagwan.

Om Shanti.

This is based on Clause nos (5) and (6) of First Schedule

Clause (5) – secure, either through the services of a person who is not an employee of such chartered accountant or who is not his partner or by means which are not open to a chartered accountant, any professional business:

Provided that nothing herein contained shall be construed as prohibiting any arrangement permitted in terms of items (2), (3) and (4) of this Part;

Clause (6) – solicits clients or professional work either directly or indirectly by circular, advertisement, personal communication or interview or by any other means:

Provided that nothing herein contained shall be construed as preventing or prohibiting –

(i)    any chartered accountant from applying or requesting for or inviting or securing professional work from another chartered accountant in practice; or
(ii)    a member from responding to tenders or enquiries issued by various users of professional services or organisations from time to time and securing professional work as a consequences.

Further, readers may also refer pages 135 to 153 of ICAI’s publication on Code of Ethics, January 2009 edition (reprinted in May 2009).

From the President

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Dear readers,

The year 2011 draws to a close. As I write this communication there is a mention in the media of the third anniversary of the dastardly attack by terrorists in Mumbai popularly known as 26 /11. Have things changed. For those who lost their near and dear ones on that day life would never be the same again. However for others that day has merely remained a memory. For some time individuals, organisations kept up the pressure on the government to take serious look at security concerns. Gradually the public went back to its daily struggle for existence and 26/11 was forgotten. Like many other events we now remember the event on anniversary days. There will be a number of reasons for this but the fact leaves one sad. Most of the much-publicised security measures have remained only on paper. As long as this attitude continues we will always be soft targets waiting for another attack to occur.

While the attack in Mumbai is now history, the attack on an eminent leader of Mr. Sharad Pawar brought to light many facets of those whom we term as leaders in public life. While the attack needed to be denounced in the strongest terms and it was, the events thereafter were avoidable. The comment on the attack by a person who is today considered an icon of the movement against corruption brought forth his serious limitations. I believe that the comment was an off-the-cuff remark and a clear mistake. After all every leader is human and is prone to make errors. The best thing to do was to accept the mistake unreservedly. This does not appear to have been done with ego probably being the obstacle. Many may perceive this to be a very harsh assessment but for me the comment is the culmination of the instrangient attitude of the person and those who surround him. It is absolutely essential that the persons leading this movement against corruption do a serious introspection for if they fail to frame a proper strategy, the energy that the movement has been able to galvanise will be frittered away. I hope those in charge of the movement make the necessary changes so that it does not lose focus.

It is now clear that the Direct tax code and GST will not meet their appointed dates. Though there could be substantial debate about the necessity of the Direct tax code itself the delay in implementing it as well as much other legislation is puts a question mark on the sincerity of the government. Innumerable man-hours of bureaucrats, professionals and others have been spent in drafting discussing and suggesting amendments to these proposed legislations. If they do not become law all this effort will go down the drain.

For the past year or so the government seems to be in a deep slumber. None of the decisions regarding policy initiatives which were a part of the UPA manifesto have been taken. One reason for this lack of decision making is said to be the fear of bureaucrats who are afraid of their decision being subject to public scrutiny and malafide intent being attributed to them. To an extent this is on account of the media glare on any event. Anything that goes wrong is attributed to an erroneous decision and an investigation is promptly ordered. We must also accept that it is only those who act will make mistakes. It is often easy to find fault with decisions in hindsight. As long as an action is taken bona fide and with due care the person must not be held responsible if the decision turns out be erroneous. People must understand the distinction between error and fraud.

One way of avoiding this inaction on account of fear is to make the decision making process as transparent as possible. If the rationale behind decisions is made known to the public much before the consequences of the decision occur this may help all concerned. One of our past Presidents always says that change is the only constant thing in life. For nearly two decades Mr.Ratan Tata has been the leader of one of the largest industrial house is in our country. His actions have taken the Tata Empire to new heights. One was therefore curious to know as who would take his place. What one liked most about that change in the leadership of this group was the manner in which it will take place. Mr. Ratan Tata had announced his date of retirement well in advance and his successor has been named a year before Mr. Tata calls it a day. This is the manner in which the baton should be passed. Our political class and others need to take a leaf out of Mr. Tata’s book. If there is an age of retirement for industrialists there ought to be one for those who run this country. We hope that Mr Cyrus Mistry who will now head the group will maintain the standards of ethics, integrity and excellence which his predecessor has set.

The year 2011 has seen turmoil and turbulence in public life. However without churning there is no Amrut. Though there are dark clouds on the economic horizon I am sure that they will pass. I am an optimist. The nation was disappointed when the little master was unable to complete his century of centuries on his home ground. However while achieving that milestone on his own turf would have gladdened hearts, to achieve it overseas and against a challenging side will give him greater satisfaction. Let us wish him all success and hope that his achievement will enable us to begin 2012 on a high note. I take this opportunity to wish all readers a very happy and prosperous 2012!

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MINUTES OF THE MEETING OF REPRESENTATIVES OF ASSOCIATIONS OF TAX CONSULTANTS WITH CHIEF COMMISSIONERS OF INCOME TAX

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Bombay Chartered Accountants’ Society
7, Jolly Bhavan No. 2, New Marine Lines, Mumbai-400020.
Tel. : 61377600 to 05 / Fax : 61377666
E-mail : bca@bcasonline.org;
Website : www.bcasonline.org WebTV : www.bcasonline.tv
11th November, 2011

To,
Central Board of Direct Taxes,
New Delhi.
Dear Sir,

Re : Representation on Tax Accounting Standards

With reference to the discussion paper on Tax Accounting Standards and the draft Tax Accounting Standards circulated along with the discussion paper, we enclose herewith our representation in respect thereof.

We trust you will take our suggestions into account.

Thanking you,
Yours faithfully,
For Bombay Chartered Accountants’ Society,

(Pradip K. Thanawala)               (Gautam Nayak)
  President                                     Chairman
                                                   Taxation Committee


Representation on Tax Accounting Standards
Bombay Chartered Accountants’ Society

The Central Board of Direct Taxes (‘CBDT’) has released a ‘Discussion Paper on Tax Accounting Standards’. Drafts of Tax Accounting Standards (‘TAS’) on Construction Contracts and Government Grants are annexed to the Discussion Paper (‘DP’). The CBDT has invited comments/suggestions on the DP and the drafts of the TAS.

In respect thereof, we give hereinbelow our comments/suggestions on the above DP and TAS.

1. At the outset, it is submitted that there is absolutely no need for notifying a different set of Accounting Standards (TAS) for the purpose of computing income under the provisions of the Income-tax Act. Though phased introduction of Ind-AS would mean that some taxpayers would be following Ind-AS while others would be following AS notified under the Company Rules, even today the position is that corporates are following Accounting Standards notified under the Company Rules, while non-corporates are following Accounting Standards issued by ICAI. Each set of taxpayers may be permitted to compute their taxable income as per the relevant accounting standards applicable to each of them.

 2. If an accounting standard is not to be followed for the purposes of maintenance of accounts but only for computation of taxable income, then it is not an accounting standard, and it is an enactment of computation provisions. It can be compared to section 145A which requires an adjustment to the reported profits based on the specific statutory provision.

3. The standards notified under section 145 are required to be followed while maintaining books of account and it is not open to prescribe standards u/s.145 which are not to be followed while maintaining books of account. This amounts to incorporating computational provisions in the garb of accounting standards.

4. Amendments cannot be made in the computation provisions in the guise of introducing an accounting standard without making a specific provision in the statute in that behalf and without requiring the said accounting standard to be followed while maintaining the books of account.

5. By notifying TAS, there is an attempt to nullify the effect of well-settled legal positions that have stood the ground since more than half a century, namely, the pre-eminence of the commercial accounting standards, which yield only to statutory provisions, e.g., distinction between capital and revenue, etc. The effect of the decisions of the Supreme Court would be nullified by a notification of TAS, which ignores the commercial accounting principles and sets its own subjective standards of accounting.

6. The tax accounting standards are now meant to be the basis of computation of taxable income by a mere notification. This will open the door to amendments in the law without requiring amendments in the Act, and thereby the executive will be encroaching on the powers of the Legislature. This is not permissible.

7. The basic premise on which the new TAS are proposed, as laid down in para 3.2 of the DP, does not hold water. The accounting standards are for correctly arriving at commercial profits and cannot be in harmony with the provisions of the Act, since otherwise there can be no scope for provisions such as section 43B, which drastically alter the commercial profits in order to arrive at the taxable income. Again, the question of accounting standards providing for specific rules to enable computation of income with certainty and clarity does not arise since the purpose of accounting standards, even those to be notified u/s.145(2), is not that. The alternatives remaining in the accounting standards, which have drastically reduced, have been retained after much deliberation, and a lot of thought process has gone into it keeping in mind its need in the Indian scenario.

8. In order to even make the reconciliation statement, in some cases, elaborate workings will be required to be prepared, kept and maintained to the satisfaction of the Assessing Officer which would amount to re-writing accounting entries passed in the books of account and may be equivalent to maintaining separate books of account. This itself would cast a substantial burden on taxpayers.

9. The corresponding effects in some cases not having been made in the books of account may lead to disastrous consequences. For instance, an assessee who has written off the amount due in respect of a construction contract, would not have written off the retention amount, since he has not accounted for the same as his income. In the reconciliation statement, he would be required to add the retention amount as his income, but will he be allowed deduction for bad debts in respect thereof if he is unable to recover it, without having written it off in the books of account?

In view of the above, the justification to prescribe new TAS in the DP itself does not stand and there is absolutely no need to prescribe new TAS.
Further as regards the draft TAS, we give our comments as follows:
Common
Both the TAS contain elaborate requirements as to ‘disclosure’. Since the said Standards are not to be followed while maintaining books of account, nor in the preparation of financial statements, it is not all clear as to where the disclosure is required to be made.

Tax accounting for construction contracts

1. The TAS states that contract revenue shall include retentions; in other words, retentions would become part of the income, even though conditions specified in the contract have not been satisfied. This is clearly against the principle of accrual, where there has to be reasonable certainty of receipt for an income to have accrued.

2.    The TAS does away completely with the provision for recognising expected loss and omits the following words which are present in AS-7 “An expected loss on the construction contract should be recognised as an expense immediately”. This is contrary to the principle of ‘prudence’, which has also been recognised as such in the Accounting Standard I relating to disclosure of accounting policies which has been notified u/s.145(2) at para 4(i) which reads as under:
“Prudence — Provisions should be made for all known liabilities and losses even though the amount cannot be determined with certainty and represents only a best estimate in the light of available information.”

3.    The TAS seeks to place an artificial limit of 25% completion beyond which contract cost and revenue should be recognised, even if the outcome of the contract cannot be estimated reliably. It is submitted that costs and revenue should be recognised on 25% completion, only if the outcome of the contract can be estimated reliably.

Tax accounting for government grants

1.    The TAS does not provide for the capital approach method for grants. This seeks to do away with the well-established distinction between capital receipt and revenue receipt and is wholly unwarranted. The well-established concept of capital grant, which is not in the nature of income, cannot be nullified by mere notification of a Tax Accounting Standard, without a specific amendment to the definition of income in section 2(24).

2.    AS-12 provides that mere receipt of grant is not necessarily conclusive evidence that conditions attached to the grants have been or will be fulfilled. The TAS specifically provides that recognition of a government grant shall not be postponed beyond the date of actual receipt. This is also against the basic principle of accounting that income should not be fully recognised if certain obligations are yet to be performed.

ICAI News

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(i) Empanelment to carry out circulation Audits of Publications
Audit Bureau of circulations which certifies figures of Member Publications desires to empanel firms of Chartered Accountants in the States of
(a) Assam & North Eastern States,
(b) Bihar,
(c) Chhatisgarh,
(d) Goa,
(e) Haryana,
(f) Himachal Pradesh,
(g) Madhya Pradesh,
(h) Punjab,
(i) Orissa,
(j) Uttaranchal and
(k) UP.

The criteria for empanelment and other details are given on page 691.

(ii) Tax Audit Reports

It is reported that according to the CBDT, in respect of financial year 2010-11, total number of Tax Audit Returns filed is about 16 lac. These tax audits were conducted by about 59000 audit firms. The data is further being processed with regard to fake membership numbers, members who have exceeded specified number (ceiling) of tax audit assignments, etc. In order to prevent misuse of membership numbers of tax auditors, it is proposed that, from next year, the uploading of tax audit reports along with digital signatures of auditors may be made mandatory. If members have any suggestions in this regard, the same may be forwarded to ICAI.

(iii) ICAI publications

(a) Compendium of Auditing Standards and Auditing Guidance Notes Vol. 1 and 2. (As on 1-10-2011)

(b) Guide to Audit of Complex Financial Instruments.

(c) Guidance Note of XBRL Financial Statements.

(d) Study on Manner of IFRS Implementation in EU and General Status of IFRS Implementation in Selected Countries. (Refer pages 787-788)

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EAC Opinion

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Accounting for leave salary laibility

 Facts

(i) In the case of a public sector company the rules relating to the leave by employees are as under:

(a) The entitlement of Earned Leave (EL) is related to the number of years of service put in by the employee. The earned leave has two components viz. Encashable Leave (EEL) and Non-Encashable Leave (NEL).

(b) The company gives advance credit of leave in terms of EEL and NEL on the standard dates i.e., 25th June and 25th December.

(c) The EL can be accumulated up to 300 days. Beyond this period, the EL will lapse.

(d) EL can be encashed at any time during the period of 300 days. NEL can be encashed at the time of retirement.

(e) There are similar Rules for Half-Pay Leave (HPL).

 (ii) The accounting practice followed by the company in respect of Leave Liability is as under: Liability for encashable earned leave (EEL), nonencashable earned leave (NEL) and half-pay leave (HPL) is provided for in the books on accrual basis for the value of leave outstanding at the end of the year. According to the company, provision for half-pay leave is made for the total leave balance at the year end without restricting it to 480 half days (240 full days) per employee in line with the requirements of AS-15.

(iii) The Auditors were of the view that this was a long-term liability for the reasons that the past pattern indicates that the employees are unlikely to avail/encash the entire carried forward leave during the next twelve months and hence, the benefit would not be short-term. Accordingly, keeping in view of behavioural pattern of the employees, the leave benefit should be considered as long-term benefit and the provision should be made based on actuarial valuation.

Query
Based on the above, the company had sought the opinion of the Expert Advisory Committee of ICAI (EAC)

(a) whether the company’s view that ‘Leave Liability’ is a short-term liability is correct and

(b) if not, how the change in accounting treatment should be accounted in the books.

Opinion

After considering the various provisions of AS-15, the EAC has expressed the following opinion:

a) Short-term employee benefits are those benefits which fall due wholly within 12 months after the end of the period in which the employees render the related service. Therefore, the treatment of ‘Leave Liability’ as ‘short-term employee benefit’ as interpreted by the company is not correct.

(b) The change in the accounting treatment of Leave Liability from ‘short-term employee benefits’ to ‘other long-term employee benefits’ should be treated as ‘prior period item’. Accordingly, the nature and amount thereof should be included and disclosed in the profit and loss account for the period in which the error is revealed as provided in AS-5. (Refer pages 710-714 of C.A. Journal for November, 2011)

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Code of ethics

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The Ethical Standards Board of ICAI has considered some of the ethical issues which have been published in C.A. Journal of November, 2011, at pages 771-772. Some of these issues are as under:

(i) Issue: Whether an auditor is required to provide the client or other auditor of the same enterprise access to his audit working papers ? Working papers are the property of an auditor. An auditor is not required to provide the client access to his audit working papers. The main auditors of an enterprise do not have right of access to the audit working papers of the branch auditors, except in case it is required by the regulatory norms.

 (ii) Issue: Whether a joint auditor will be responsible for the work done by other joint auditor? Council direction under Clause (2) of Part I of the Second Schedule to the C.A. Act prescribes that in respect of audit work divided among the joint auditors, each joint auditor is responsible only for the work allocated to him, whether or not he has prepared a separate report on the work performed by him. However, on the other hand, all the joint auditors are jointly and severally responsible for the work which is not inter se divided among the auditors, and also for compliance of requirements of relevant statues.

(iii) Issue: Can a member in practice express his opinion on financial statements of any business or enterprises in which he, his firm or a partner in his firm has a substantial interest? As per Clause (4) of Part I of the Second Schedule to the C.A. Act, a Chartered Accountant in practice shall be deemed to be guilty of professional misconduct, if he expresses his opinion on financial statements of any business or any enterprise in which he, his firm or a partner in his firm has substantial interest. The word ‘substantial interest’ is defined in the Resolution passed by the Council in pursuance to Regulation 190A of the CA Regulations (Please refer Appendix F to Code of Ethics — P. 345).

(iv) Issue: Whether a statutory auditor can accept the system audit of the same entity? The statutory auditor can accept the assignment of a system audit of the same entity, provided it did not involve any scrutiny/review of financial data and information.

(v) Issue: Can a Chartered Accountant receive his professional fees in advance party or in full? There is no bar in the C.A. Act or in the CA Regulations as well as the Code of Ethics in taking the fees in advance.

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ICAI and its members

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1. Code of Ethics:

The Ethical Standards Board of ICAI has given answers to some of the Ethical Issues raised by our members. These are published on pages 726-728 of the CA Journal for November, 2012. Some of these issues are as under:-

(i) Issue: Whether a Chartered Accountant who is appointed as tax auditor for conducting special audit under the Income-tax Act by the IT Authorities is required to communicate with statutory auditor?

Comment:
Council direction under Clause (8) of Part I of First Schedule to the Act, prescribes that it would be a healthy practice, if a tax auditor appointed for conducting special audit under the Income-tax Act, communicates with the members who have conducted the statutory/tax audit.

(ii) Issue: Whether it is obligatory for the auditor appointed to conduct a special Audit u/s. 233A of the Companies Act, 1956 to communicate with the previous auditor, who has conducted the regular audit for the period covered by the special audit.

Comment:
Council direction under Clause (8) of Part 1 of the First Schedule to the Act prescribes that it is not obligatory for the auditor appointed to conduct a special audit u/s. 233A of Companies Act, 1956 to communicate with the previous auditor who has conducted the regular audit for the period covered by the special audit.

(iii) Issue: Whether communication with previous auditor is necessary in case of appointment as statutory auditor by nationalised and other banks?

Comment:
Clause (8) of Part 1 of the First Schedule to the Act is equally applicable in the case of nationalised and other banks and also to Government agencies.

(iv) Issue: Whether communication by the incoming auditor is mandatory with the previous auditor in respect of various audit assignments, like the concurrent audit, revenue audit, tax audit and special audits, etc?

Comment: The requirement for communicating with the previous auditor would apply to all types of audits viz. statutory audit, tax audit, internal audit, concurrent audit or any other kind of audit. The Council has laid down detailed guidelines in this regard and the same are appearing at pages 166-168 in the Code of Ethics, 2009 edition.

(v) Issue: Whether a Chartered Accountant or a firm of Chartered Accountants can charge or offer to charge professional fees based on a percentage of turnovers?

Comment
: In terms of Clause (10) of Part 1 of First Schedule to the Act, it is not permitted to a Chartered Accountant or a firm of Chartered Accountants to charge fees as a percentage of turnover, except in the circumstances provided under Regulation 192 of the CA Regulations, 1988.

“192, Restriction on fees

No Chartered Accountant in practice shall charge or offer to charge, accept or offer to accept, in respect of any professional work, fees which are based on a percentage of profits, or which are contingent upon the findings, or results of such work.

Provided that:
(a) in the case of a receiver or a liquidator, the fees may be based on a percentage of the realisation or disbursement of the assets;

(b) in the case of an auditor of a co-operative society, the fees may be based on a percentage of the paid up capital or the working capital or the gross or net income or profits; and

(c) in the case of a valuer for the purposes of direct taxes and duties, the fees may be based on a percentage of the value of the property valued”.

(vi) Issue: Whether a statutory auditor can be appointed in the adjourned meeting in place of existing statutory auditor, where no special notice for removal or replacement of the retiring auditor is received at the time of the original meeting.

Comment:
If any AGM is adjourned without appointing an auditor, no special notice for removal or replacement of the retiring auditor received after the adjournment can be taken note of and acted upon by the Company. U/s 190(1) of the Companies Act, such special notice can be given to the company at least 14 days before the meeting. In this section, reference is to the original meeting and not to an adjourned meeting.

2. EAC Opinion:

Facts:
A company is a wholly owned subsidiary of a listed public sector undertaking (‘the holding company’). The company was incorporated in the year 2002 under the Companies Act. The main object of the company, inter alia, is to acquire, establish and operate electrical systems etc. for distribution and supply of electrical energy, to undertake works on behalf of others and to act as engineers/consultants.

The company has stated that all the personnel of the company are employees on the rolls of the holding company and are under deputation to the company on Secondment basis. Every month, actual share of employees related expenses of the company, like salary, provident fund (PF) contribution, etc. are being debited to the company by the holding company, for payments and accounting purpose. Other employee benefits like retirement benefits are allocated at the year end and accordingly accounted for in the accounts of the company, payable to the holding company. The holding company has constituted separate trusts and administering and managing employee benefits towards gratuity and provident fund.

The company has further stated that the holding company gets the actuarial valuation done, at the year end, for all of its employees together, including those deputed to its subsidiary companies. In other words, no separate valuation report is obtained for the employees of subsidiary companies. Therefore, identifying employee liability and corresponding plan assets attributable to the personnel on deputation to its subsidiaries is not possible. However, the amount being proportionate share of expenses (for the year under consideration) is determined by the actuary and allocated to the subsidiary companies for accounting purpose. Therefore, the company and the auditor of the company rely upon the allocated figure for recognising expenses in the profit and loss account of the company. As a corollary, all the other information required to be disclosed as per paragraphs 119 and 120 of Accounting Standard (AS) 15, ‘Employee Benefits’ is not available, and is not disclosed in the Notes on Accounts. The expenses on account of long term defined benefits included for actuarial valuation are gratuity, leave encashment, post retirement medical benefits, transfer/travelling allowance on retirement/death, long service awards to employees, farewell gift on retirement of economic rehabilitation scheme.

In the case of provident fund, however, the accounting is done on the basis of actual contribution, although the holding company in its financial statements admits it as a defined benefit. The company is of the view that actuarial valuation is not required for provident fund liability. Further, the holding company (sponsor employer) is not making disclosures in its financials as required by paragraphs 19 to 120 of AS 15 in the case of provident fund, unlike in the case of other defined benefits.

Query
On these facts, the company has sought the opinion of the EAC on the issue: (i) whether the position of the company that it is not liable to make complete disclosure in its separate financial statements, in view of the facts that the same have been done by the holding company, is correct? and (ii) Whether the company’s policy of accounting for the provident fund based on actual contribution instead of actuarial valuation basis (and not making disclosures even in its parent’s financial as a defined benefit, as required in paragraph 119 and 120 of AS 15) is correct?

Opinion:
After considering paragraphs 33 to 35 of AS 15, the Committee is of the view that the multi-employer and group administration plans are completely different from each other. In case of group administration plan, it is merely an aggregation of individual employer plans and therefore, the Standard itself states that the accounting related information is readily available with the participating enterprises as any other single employer. Further, the Committee notes from the Facts of the Case that in the case of the company, the holding company gets the actuarial valuation done, at the year end, for all of its employees, including those deputed to its subsidiary companies. The amount being proportionate share of expenses (for the year under consideration) is determined by the actuary and allocated to the subsidiary companies for accounting purpose. This indicates that there is a contractual agreement or stated policy based on which the proportionate issue of expenses is being allocated to the subsidiary company. Further, since there is a common scheme for the employees of the holding company and the subsidiary company, keeping in view the Facts of the Case, it appears to the Committee that in substance, the holding company is running a group administration plan.

The Committee is further of the view that the existence of such contractual agreement or stated policy through which the current service costs and obligations of defined benefit plans for employees of subsidiary company are being allocated to it clearly provides a basis for allocating the assets and obligation of the plan too. The Committee is also of the view that in case there is no such contractual agreement or stated policy to bear entire obligation relating to the employee, as per paragraph 35 of AS 15, the net defined benefit cost should be recognised in the financial statements of the enterprise which is legally the sponsor employer (holding company in the extant case) for plan and other group enterprise (subsidiary company in the extant case) should recognise a cost equal to their contribution payable for the period. Therefore, the contention of the company that it is not liable to make complete disclosures in its financial statements, in view of the fact that the same have been done by the holding company, is not correct.

With regards to accounting for contribution being made to provident fund trust, administered by the holding company, the Committee notes paragraphs 25 to 27 of AS 15 and Issue No. 9 of ‘ASB Guidance on Implementing AS 15, Employee Benefits (revised) 2005, issued by the Accounting Standard Board of the ICAI, and is of the view that (EPF) Act, 1952 empowers the Government to exempt any establishment from the provisions of the Employees’ Provident Scheme, 1952 provided that the rules of the provident fund set up by the establishment are not less favourable than those specified in section 6 of the EPF Act and the employees are also in enjoyment of other provident fund benefits which on the whole are not less favourable to the employees than the benefits provided under the Act. As per AS 15, where in terms of any plan the enterprise’s obligation is to provide the agreed benefits to current and former employees and the actuarial risk (that benefits will cost more than expected) and investment risk fall, in substance, on the enterprise, the plan would be a defined benefit plan. Accordingly, provident funds set up by the employers which require interest shortfall to be met by the employer would be in effect defined benefit plans in accordance with the requirements of paragraph 26(b) of AS 15”. Hence, accounting for such benefit by the subsidiary would be advisable.

3.    ICAI News:

(Note: Page Nos. given below are from CA Journal for November, 2012)

(i)    International Conference to be held at Mumbai:

ICAI is organising an International Conference on 24th and 25th January, 2013 at Mumbai. Theme of this Conference will be “Accounting Profession: Enablers of Economic Growth”. Delegates from Asia and Pacific Region are expected to participate in this Conference (Page 711).

(ii)    The effects of changes in Foreign Exchange Rates (AS-11):

Financial Reporting Review Board (FRRB) has re-ported that in some instances, some companies have not followed the requirements of AS-II. These instances are reported on Page 834.

(iii)    ICAI Publications:

(a)    Compendium of Opinions – Vol XXX (Page 846)

(b)    Guidance Note on Accounting and Auditing of Political Parties.

Direct Taxes

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44.Extension of time limit for filing ITR V for AY 2010-11 and AY 2011-12 – Notification No 1/2012 under CPR Scheme 2011 dated 23-10-2012

The time limit for filing ITR V forms relating to returns filed electronically for AY 2010-11 (filed during financial year 2011-12) and AY 2011-12 (filed on or after 1 April 11) is extended. These ITR V forms can now be filed upto 31 December 2012 or 120 days from the date of e-filing the return whichever is later.

45.The Capital Gains Account (First Amendment) Scheme, 2012 – Notification no. 44/2012 dated 25-10-2012

Capital Gains Account Scheme, 1988 is amended to extend the benefit to Individuals and HUF, who have earned capital gains on transfer of a residential property and who intend to claim exemption u/s. 54GB of the Act.

46.Specified companies authorised to issue taxfree, secured, redeemable, Non-convertible Bonds during F.Y. 2012-13 – Notification no. 46/2012 dated 06-11-2012

CBDT has notified the companies eligible to issue bonds as prescribed u/s. 10(15) of the Act. Copy of the notification available on www.bcasonline.org.

47.India and United Kingdom have signed a protocol on 30th October, 2012 to amend the India – UK Treaty.

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From published accounts

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Section A:

I. Change in accounting policy in Consolidated Financial Statements (CFS)

II. Adjustment of loss on exiting of business adjusted to Business Restructuring Reserve in Consolidated Financial Statements (CFS)

Hindalco Industries Ltd (31-3-2012)

From Notes to CFS
47. Effective from financial year 2011-12, the Company has changed its accounting policy for preparation of consolidated financial statements relating to actuarial gains or losses arising out of actuarial valuation of long term employee benefits and post employment benefits with respect to one of its overseas subsidiaries (Novelis Inc.). Till the previous year, the amount of actuarial gains or losses was accounted, though the along with related deferred tax have been adjusted against Reserves and Surplus. The adjustment is cash neutral. Had the Company not changed the accounting policy as above, Employee Benefits Expenses would have been higher by Rs. 1,014.91 crore, Tax Expenses would have been lower by Rs. 299.88 crore, Net Profit for the year would have been lower by Rs. 715.03 crore and Foreign Currency Translation Reserve in Reserves and Surplus would have been lower by Rs. 44.39 crore. Consequently, the Basic and Diluted Earnings per Share for the period is higher by Rs. 3.73.

46. Pursuant to a court approved scheme of financial restructuring under sections 391 to 394 of the Companies Act, 1956, Business Reconstruction Reserve (BRR) was established during 2008-09 for adjustment of certain specified expenses. Accordingly, costs in connection with exiting certain business during the year have been adjusted against the BRR in consolidated financial statements. Had this adjustment not been done, Other Expenses would have been higher by Rs. 536.33 crore, Tax Expenses would have been lower by Rs. 35.86 crore and Net Profit for the year would have been lower by Rs. 500.47 crore. A summary of adjustments made so far against BRR is given in the following table Had the Scheme not prescribed aforesaid treatment of certain specified expenses, the Profit for the period and the Earnings per Share (EPS) thereof would have been higher/(lower) by:


Table 2


From Auditor’s Report on CFS

4) Without qualifying our opinion, attention is drawn to the following:

a) Note no.47 of Notes to Consolidated Financial Statement regarding change in accounting policy with respect to recognition of actuarial losses of Rs. 759.42 crore (net of Deferred Tax) relating to pension and other post-retirement benefit plans in the Actuarial Gain/(Loss) Reserve under Reserves and Surplus of Novelis Inc. (the Company) and its subsidiaries and associates (Novelis Group) for reasons as stated therein. Had the Novelis group followed the earlier practice of recognition of actuarial losses on the aforesaid defined benefit plans in the Statement of Profit and Loss as per the Accounting Standard (AS 15) on Employee Benefits, Employee Benefits expenses would have been higher by Rs. 1,014.91 crore, tax expenses would have been lower by Rs. 299.88 crore, the consolidated profit before taxes and minority interest would have been lower by Rs. 1,041.91 crore, Actuarial Gain/(Loss) Reserve would have been Rs. Nil and Foreign Currency Translation Reserve would have been lower by Rs. 44.39 crore.

b) Note no.46 of notes to Consolidated Financial Statement relating to loss on exiting foil and packing business in one of the foreign subsidiaries amounting to Rs. 500.47 crore (Net of deferred tax of Rs. 35.86 crore) has been adjusted with Business Reconstruction Reserve as per the scheme of arrangement u/s.391 of 394 of the Companies Act 1956 as approved by the High Court at Mumbai. Had the aforesaid treatment been not done, the reported group profit before tax would have been lower by Rs. 536.33 crore and Business Reconstruction Reserve would have been higher by Rs. 500.47 crore and deferred tax assets would have been higher by Rs. 35.86 crore.

c) Note no.4 of notes to consolidated financial statements regarding consolidation of accounts of an associate including for the year ended 31st March, 2011, resulting in profit for the year being higher by Rs. 62.02 crore.

From Directors’ Report on CFS

4. Changes in Accounting Policy

Effective from the Financial Year 2011-12, the Company has changed its accounting policy for preparation of the consolidated financial statements relating to actuarial gains or losses arising out of actuarial valuation of long term employee benefits and post employment benefits with respect to one of its overseas subsidiaries (Novelis Inc.). Until the previous year, the amount of actuarial gains or losses was accounted through the Statement of Profit and Loss. Consequent to the change in accounting policy, actuarial gains or loss along with related deferred tax have been adjusted against Reserves and Surplus. This is a noncash item. Had the Company not changed the accounting policy as above, the Employee Benefits Expenses would have been higher by Rs. 1,014.91 crore, Tax Expenses would have been lower by Rs. 299.88 crore, Net Profit for the year would have been lower by Rs. 715.03 crore and Foreign Currency Translation Reserve in Reserves and Surplus would have been lower by Rs. 44.39 crore.

5. Business Reconstruction Reserve

Pursuant to a court approved scheme of financial restructuring u/s. 391 to 394 of the Companies Act, 1956, Business Reconstruction Reserve (BRR) was established during 2008-09 for adjustment of certain specified expenses. Accordingly, costs in connection with exiting certain business during the year have been adjusted against the BRR in the consolidated financial statements. Had this adjustment not been done, Other Expenses would have been higher by Rs. 536.33 crore, Tax Expenses would have been lower by Rs. 35.86 crore and Net Profit for the year would have been lower by Rs. 500.47 crore. A summary of adjustments made so far against BRR is given in the following table:

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ICAI and its members

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1. Some Ethical Issues

The Ethical
Standards Board of ICAI has given answers to some Ethical Issues on
pages Page 610 to 612 of C A. Journal for Novemberg 2014. Some of these
issues are as under:

(i) Issue:

Whether sponsorship or prizes be instituted in the name of a Chartered Accountant or a firm of Chartered Accountants?

An
individual Chartered Accountant or firm of Chartered Accountants can
institute or sponsor prizes, provided that the designation ‘Chartered
Accountant’ is not appended to the prize and the Clause (6) of Part I of
the First Schedule to the C. A. Act, regarding advertisement and
publicity is complied with.

(ii) Issue
Can a Chartered
Accountant in practice give the date of setting up the practice or date
of establishment on the letterheads and other professional documents,
etc.?

Council direction under Clause (7) of Part I of the
First Schedule to the C. A. Act, prescribes that the date of setting up
of the firm on the letterheads and the professional documents etc.
should not be mentioned. However, in the website, the year of
establishment can be given on a specific “pull” request.

(iii) Issue
Can
a Chartered Accountant in Practice accept original professional work
emanating from a client introduced to him by another member?

The
first schedule Part 1 Clause (6) (J) of C.A. Act prescribes that a
member should not accept the original professional work emanating from a
client introduced to him by another member. If any professional work of
such client comes to him directly it is his duty to ask the client that
he should come through the member dealing with his original work.

(iv) Issue

Can a Chartered Accountant in practice also practice as an Advocate?

Under
the first schedule Part I Clause(7) of the C.A. Act, the council has
prescribed that a practicing C.A. who is otherwise eligible may practice
as an Advocate subject to permission of the Bar Council. In such a
case, he should not use the designation ‘Chartered Accountant’ in
respect of the matters involving the practice as an Advocate. In respect
of other matters, he can use the designation ‘Chartered Accountant’ but
he should not use the designation ‘Chartered Accountant’ and ‘Advocate’
simultaneously.

2. EAC Opinion

Disclosure of the Revenue as per AS 9

Facts:
A
company is primarily engaged in the business of owning and running
hotels and resorts. The company receives bookings for the hotel and
resort rooms and related facilities from individuals, corporates and
travel agents.

The company has a tariff card (rate list) for all
the room types which is inclusive of all taxes. Ideally, when a
customer approaches the company, he is offered the tariff rate. However,
the company has been using various marketing strategies to attract
guests. As a strategy, the company offers discounts to the guest
discretionally, based on various factors. The company has observed that
when the guest is given a discount, he feels happy about it and becomes a
loyal customers of the resort. This strategy has given to the company
an edge over its competitors and thereby helped the company to increase
its turnover year on year.

The Company has further stated that it is currently recognising revenue at tariff rate and is treating discount as an expense.

Query:
The
Company has requested the EAC to clarify how disclosure of the revenue
would be in compliance with the disclosure required in AS9 (Revenue
Recognition).

Opinion:
The Committee notes that the
basic issue raised by the Company is the accounting treatment of the
discount(s) allowed by the company and its presentation in the statement
of Profit and loss as per AS 9.

After considering the
definitions of ‘cash discount’ and ‘trade discount’ as given in the
Guidance Note on Terms used in Financial Statement issued by ICAI, the
committee is of the view that trade discount is not encompassed within
the definition of revenue since it represents a reduction of cost and
accordingly, the revenue is determined and recognised after deducting
the trade discount. Further, the Committee after considering the
definition of ‘Revenue’ given in Accounting Standard (AS 9) ‘Revenue
Recognition’ is of the view that the revenue is the charge made to
customers which in case of trade discount is the amount of net of
discount. Accordingly, the Committee is of the view that the
presentation by the company to present the revenue on gross basis and
then to present the trade discount as expense is not correct and is not
in accordance with the requirements of AS 9.

[Pl. Refer page nos. 643 to 645 of C. A. Journal – November, 2014]

3. Financial Reporting Review Board (FRRB)

ICAI
has published a “Study on Compliance of Financial Reporting
Requirements”. Some of the observations in this publication relating to
compliance with Accounting Standard (AS) 5 are given below for the
information of Members.

(i) Treatment of Foreign Exchange Loss / Gain (P.43)

It
was noticed that one of the Notes to Accounts given in the Financial
Statements stated that the company has opted to capitalise the Foreign
Exchange Loss/Gain on reporting of Long Term Foreign Currency monetary
items used for depreciable assets retrospectively w.e.f. 01-07-2007 in
view of GSR 225(E) dated 31-03-2009 issued by the Central Government as
regards AS-11, Consequently Rs.xxx lakh (including Rs.xxx lakh relating
to previous years) has been added to the cost of depreciable assets.

Observation of FRRB
Referring
to Para 32 of AS.5 (Net Profit and Loss for the period, prior period
Items and changes in Accounting Policies) it was evident that there are
two distinct aspects for dealing with the situation. The first requires
disclosure of change in the accounting policy which has a material
effect and the second aspect requires the disclosure of the impact of
such changes on the financial statements. In the case of company the
above note indicated that there was a change in an accounting policy but
the impact of such change was only partly disclosed. In this case such a
change had two fold impact due to write back of exchange difference of
earlier years viz., the aggregate impact due to the write back and
additional depreciation thereon on the profit or loss for the year. The
above note only discloses aggregate impact but does not disclose the
impact on the profit or loss of the current year. To this extent
requirement of AS-5 has not been complied with.

(ii) Disclosure of Extra – Ordinary Items (P.45)

In one of the Financial Statements, there is the following note in the Notes to Accounts:-

“FCCB
were considered as non-monetary liability during the previous period,
but keeping in view the provisions of AS-11 and the principle of
prudence as enunciated in AS-1, the foreign exchange loss of Rs.xxx
million arising out of revaluation in respect of outstanding FCCB of USD
xxx million as on 31.03.2008 has been recognized and charged to Profit
and Loss Account of the year as an extra ordinary item”.

Observation of FRRB
Referring
to Para 4.1 and 4.2 of AS-5, it was observed that the foreign exchange
gain or loss arising on outstanding balance of FCCB is an ordinary
activity since FCCB is taken by the company as a part of its business
only. Therefore, classification of the gain or loss on such foreign
exchange fluctuations as extra – ordinary item amounts to non–compliance
with the requirements of AS-5

(iii)    Adjustment of earlier year’s provision against general Reserve (P. 46)

In the case of a company excess depreciation charged in earlier years and Leave Encashment liability  of  earlier years was adjusted against credit balance of General Reserve.

Observation of FRRB
Referring to Para 15 of AS-5, FRRB has observed that the Prior Period items should have been accounted in the Profit and Loss Account instead of adjusting them against the general reserve. Further, it was also noted that no disclosure has been made with regard to such adjustments either in the related schedules or in the notes to the accounts explaining the reasons for such adjustment against the General Reserve.

4.    ICAI news
(Note: Page Nos. given below are from C.A. Journal of November 2014)

(i)    National Advisory Committee on Accounting Standards (NACAS)

This Committee has been recently reconstituted by the Government under the Chairmanship of C.A. Amarjit Chopra (Former President of ICAI). This committee will advise the Government on Accounting Standards as con- verged with International Financial Reporting Standards which are to be adopted in India from next year (2015-16) on a voluntary basis by companies in India. These stan- dards will become mandatory in 2016-17 (P. 598)

(ii)    ICAI initiative in E- learning

The following 10 hi-tech initiatives have been launched.

(a)    ICAI Mobile App – Information about all announce- ments, photo gallery, videos, news and other infor- mation about ICAI.

(b)    Flexi Working Portal for Women Members- To help women members to find suitable opportunities Part-time/Flexi-Hours Jobs and Jobs with work- from-Home option.
(c)    ICAI Knowledge Portal – Offers access of latest publications, announcements, articles, journals etc.

(d)    ICAI Video Podcast – Consists of audio, video, PDF, and ePub files that can be subscribed to and downloaded or streamed on line.

(e)    ICAI cloud campus – For students in India and abroad who can get education and training at their doorsteps.

(f)    ICAI Publications Online – ICAI Publications, ICAI stationery items and ICAI E-learning CDs can be delivered at your home.

(g)    ICAI E-learning – This is available to members, students and non-members. It is a self-paced, in- teractive and captivating learning experience.

(h)    ICAI Digital Library – This is a repository of various digital Publications, E-books, Journals etc.

(i)    ICAI Embraces Social Media – You can follow ICAI on Facebook, Twitter, You Tube and Google to catch up on the latest news, important announcements, press releases and updates.

(j)    ICAI TV – you can hear the President’s latest speech, lectures by professionals and important announcements through DTH Service (P. 640-641)

(iii)    Get C.A. Journal at your Residence

Members can apply to Editorial Board to get C.A. Journal at Residential Address (P. 652)

(iv)    ICAI News Publications.

(a)    Handbook of Auditing Pronouncements Compendium of Engagement and Quality Control Standards (As on 1st October,2014) Volume 1.A

(b)    Compendium of Statements on Auditing (VoL 1.B)

(c)    Compendium of Guidance Notes (VoL – II) ( P. 727– 728)