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FROM THE PRESIDENT

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Dear members of BCAS family,
On this 15th August, after a long time, I wasn’t enjoying my usual Independence Day holiday. No movie, picnic, cards or eating out. Instead, I was in Jaipur, hosting the BCAS ITF Conference. I was going over the arrangements for the conference with Nitin Shingala and the other coordinators. As we went to inspect one of the open air venues, we saw the Indian flag fluttering in a wet Jaipur morning. The hotel staff had just concluded the flag hoisting ceremony. I instantly rued the missed opportunity of being there. Gosh! I hadn’t attended a flag hoisting ceremony in so many years.
The realisation shamed me. A volley of thoughts ran through my mind, all of them violently shaking me up. Last month, I had attended a celebration of the US Independence Day in India. The joy and vigour with which it was being celebrated in India amazed me. And here I was, an Indian, in India, but not a witness to any flag hoisting, national anthem singing or celebrations. To be honest, there wasn’t any joy that I was feeling on this occasion. Does it mean that I and others who felt like me are not patriotic?
I love my country. I get goose bumps when I hear or recite our national anthem. I am fiercely protective of anyone criticising my country (and unfortunately, it is fellow Indians who criticise the most). If this is not patriotism, then what is?
But I don’t feel any different on the Independence Day than any other day. It may not appeal to you and I apologise for the same, but this is an honest confession. Is it just me not valuing my independence or is it because I don’t feel independent in an independent India? On 15th August 1947, we gained ‘Independence’ from the British Raj. We were earlier ruled by someone we did not choose, we now get to elect the people who rule us. That bit has surely changed. Let us think back on how that has changed India…
History tells us that under the British Rule, we were suppressed, oppressed and exploited. Even today, there is abject poverty, lawlessness, corruption, communalism, casteism, rising crimes against women and children, hunger, exploitation and what not. I wonder if those affected by these factors feel ‘Independent’. How does a child, deprived of her right to education, enjoy her independence? What does Independence mean to the scores of children suffering from malnutrition or to the farmers who committed suicide out of poverty?
We have read that under the British Rule, we toiled to fill the Queen’s coffers. Is our toiling to fill Swiss Bank lockers any different?
We were fighting for Independence from the British Raj then. Most of us continue to fight for independence from corruption, poverty, crime, lawlessness and communalism. Some fight for a separate state and some for autonomy. Some through agitation and some through violence. I fear that at this rate, we may be on the way to become the next USSR.
Today’s “freedom fighters” (the conscience keepers) are won over by fear, force or just lured. The Press had no freedom then. Today this ‘freedom’ can be bought over. There were communities that were suppressed then. After six decades of independence, they still cry ‘reservations’.
Think honestly, how many of us really celebrate the Independence Day? Some old timers maybe, but what about the youth? Is Valentine’s Day celebrated more?
On the economic front, many opine that we have gone back to the scenario similar to that prevalent in the preliberalisation days. On the socio-political front have we gone back to the pre-Independence days? Is this state of mind on account of the events of the last few years?
This year’s front page news was about the mumbling PM and grumbling PM-in-waiting. Will next year’s front page news be about the roaring Indians and soaring Economy? Will we see true freedom soon? Freedom from oppression, suppression, corruption, poverty, illiteracy, inequality, hatred and hostility? This Independence Day I didn’t sing Tagore’s National Anthem. But I did read his Gitanjali as a prayer.

Jana Gana Mana
Thou art the rulers of the minds of all people,
dispenser of India’s destiny.
Thy name rouses the hearts of Punjab, Sind, Gujarat
and Maratha,
Of the Dravida and Orissa and Bengal;
It echoes in the hills of the Vindhyas and Himalayas,
mingles in the music of Yamuna and Ganga and is
chanted by the waves of the Indian Sea.
They pray for thy blessings and sing thy praise.
The saving of all people waits in thy hand,
thou art the dispenser of India’s destiny,
Victory, victory, victory to thee.

Gitanjali
Where The Mind Is Without Fear
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.

I look forward to the day when we celebrate our Independence day with pride, joy and in complete freedom. This is possible. Possible if we the citizens dream it, wish, desire, toil and command it. It will happen. Hopefully soon.

Here’s wishing everyone happiness and love.

With Warm Regards
Naushad A. Panjwani

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PART d: Good Governance

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  •  Progress of Governance


Writing on Narendra Modi, Mr. Pavan Varma (former diplomat and currently adviser to the Bihar C.M.) writes-

And, finally—and this is something that touches the life of every Indian—of what good is governance if it revives communal strife thereby jeopardising the very project of governance?

  •  From TISCO’s annual report under the title “Governance Systems”


Policies
A number of policies have been put into place to ensure that governance standards are met. They are based on zero tolerance towards corruption and unethical behaviour. These include:

• The Gift Policy
• Whistle Blower Policy
• Whistle Blower Reward Policy
• Vendors Whistle Blower policy
• Sexual Harassment Prevention and Redressal Guidelines

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PART C: Information on & Around

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  •  Pending cases at magistrate courts in Mumbai:

In 75 magistrate courts in Mumbai as on 01-04- 2013, pending cases as per reply received to the query made under RTI are 3.82 lakh. As on 31- 07-2013 number is 3.72 lakh. When classified it reveals that 8464 cases are pending for more than 20 years, 51074 pending more than 10 years and 67721 are pending since more than 5 years. Highest number of cases, (11953), are in 26th court, Borivali and lowest, (102) in 19th court, Esplanade.

  •  Relief to sexual crime victims

Gopal Kansara has proved that RTI is potent weapon in the hands of humble citizens.

Acting on the 2011 Supreme Court directive to States to formulate a plan to provide relief and rehabilitate women who had been assaulted or raped, Kansara has used RTI to make sure the verdict is implemented. In the process, he has brought succor to a minor rape victim in his locality, a woman publicly molested in Guwahati and several trafficked children in Delhi.

“On January 2 this year, newspapers reported that a minor girl had been raped by a driver nearby. I wrote to the district collector seeking monetary relief for her,” said Kansara. As he got no response to his letter or fax, Kansara filed an RTI in February asking for a copy of the FIR, the medical report, action taken report and details of rehabilitation.

“After the RTI application, the collector wrote to the local authorities and Rajasthan chief minister. Soon Rs. 3 lakh was sanctioned for the girl and deposited in a bank,” he said.

He did something similar in the case of the public molestation of a 20-year-old girl outside a Guwahati pub by over a dozen men in mid-2012. “I did not know her, nor have I ever been to Assam. But I strongly felt I should do something. I filed an RTI application with the Assam government asking what relief had been given to her [as per the SC order]. Soon she was given Rs. 50,000 by the state government,” he added.

Since 2006, Kansara has filed more than 750 RTI applications on a range of issues and says he will continue to do so even though he has been threatened with murder several times. “The RTI has done what no other law in the country has done. It has made the common man a VIP. It has freed him from approaching local politicians every time for little things.”

  •  Refund of Security Deposit etc. by Kelkar College:

RTI activists, Ranjit Mahanti in reply to his RTI application to Kelkar College, Mulund was informed that data he had sought would require much work and asked him if the activist will pay for the expense involved in compiling information sought. Mr Mahanti had sought information from the college about the practice in refunding security deposit taken from its students. College replied:

“We wish to inform you that information required by you about security deposits is extremely large work. It may require one year’s time. It is not possible for us to complete this during our routine work, for which we have to appoint two additional employees on contract basis. Kindly let us know whether you are ready to pay for the expenditure towards this work for information required by you.”

In this connection it is worth noting the judgment of S.C. in the case of Institute of Chartered Accountants vs. Shaunak H. Satya reported in A.I.R. 2011 S.C. 3336, [RTIR IV (2011) 82 (SC)]

“One of the objects of democracy is to bring about transparency of information to contain corruption and bring about accountability. But achieving this object does not mean that other equally important public interests including efficient functioning of the Government and public authorities, optimum use of limited fiscal resources, preservation of confidentiality of sensitive information, etc. are to be ignored or sacrificed.“

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PART B: RTI Act, 2005

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  •  When the Government announced that it will bring the bill in the Parliament to do away with the decision of CIC ruling that political parties are covered u/s 2(h) of the RTI Act (see BCAJ of July 2013) RTI Activists all over the country huddled together in a group and held the view that it is appropriate that political parties should be considered as “public authority”. Disregarding civil society’s strong objection as all political parties are in favour of exempting themselves from the RTI Act, Government tabled the bill in the Lok Sabha on 14-08-2013. Same reads as under:

BE it enacted by Parliament in the Sixty-fourth year of the Republic of India as follows: –

1. (1) This Act may be called the Right to Information (Amendment) Act, 2013 (2) It shall be deemed to have come into force on the 3rd day of June, 2013.

2. In section 2 of the Right to Information Act, 2005 (hereinafter referred to as the principal Act), in clause (h), the following Explanation shall be inserted, namely:-

‘Explanation- The expression “authority or body or institution of self-government established or constituted” by any law made by Parliament shall not include any association or body of individuals registered or recognised as political party under the Representation of the People Act, 1951.’

3. After section 31 of the principal Act, the following section shall be inserted, namely:-

“32. Notwithstanding anything contained in any judgment, decree or order of any court or commission, the provisions of this Act, as amended by the Right to Information (Amendment) Act, 2013, shall have effect and shall be deemed always to have effect, in the case of any association or body of individuals registered or recognised as political party under the Representation of the People Act, 1951 or any other law for the time being in force and the rules made or notifications issued thereunder.”

It is interesting to note that Prime Minister in his Independence Day speech on 15-08-2013 covered RTI as under:

“Through the Right to Information Act, the common man gets more information than ever before about the work of the government. This legislation is being used on a large scale at all levels. The Act frequently brings to light irregularities and corruption and opens the door for improvements. I am sure that the RTI will lead to further improvements in the way the government functions.”

Isn’t this a contradiction that in his speech he states “I am sure that the RTI will lead to further improvements in the way the government functions,” while by introducing the RTI Amendment Bill it excludes the way political parties function?

• In BCAJ of June 2013, it was reported that online RTI facility is created by the Government. The portal is a facility for Indian citizens to file RTI applications online and first appeals and also to make online payment of RTI fees. The facility was then made available only by a few ministries/ departments.

Now DoPT has extended facility of online filing of RTI Application and the first appeal to all ministries. Office Memorandum, dated 30-07-2013 reads as under:

Subject: Extension of RTI web portal for online filing of RTI application.

1. In continuation of this Department’s O.M. of even number dated 22-04-2013, it is intimated that the facility of RTI online web portal has been extended to 37 Ministries/ Departments of Government of India, so far (list enclosed). It is planned to extend this facility to all the remaining Ministries/Departments of Government of India by mid-August, 2013. This facility is presently not proposed to be extended for field offices/attached/subordinate offices.

2. It is again requested that training to all the CPIOs and First Appellate Authorities (FAAs) may be provided by the concerned Ministry/ Department, through the officials trained by DoPT/NIC. If required, further training can be provided by DoPT/NIC, on the request of the concerned Ministry/Department. User name/ password to all the CPIOs and FAAs are to be provided by RTI Nodal Officers of the concerned Ministry/Department. It is imperative that the RTI Nodal Officers update the details of the CPIOs/ FAAs in the system and issue user name and password to them at the earliest.

List of 37 ministries/departments include: –

1. DEPARTMENT OF ECONOMIC AFFAIRS

2. DEPARTMENT OF REVENUE

3. DEPARTMENT OF HEAVY INDUSTRY

4. MINISTRY OF SHIPPING

5. MINISTRY OF CORPORATE AFFAIRS

Full list & further details can be viewed on https:// rtionline.gov.in

• Mrs. Deepak Sandhu succeeds Shri Satyananda Mishra as Chief Information Commissioner at Central Information Commission.

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From published accounts

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Section B:
Losses on account of Robbery of Plant and Machinery, Factory shed and building etc.

Vikash Metal & Power Ltd (15 months ended 30-06-2012)

From Notes to Financial Statements
As the incident of the Robbery had taken place on 12th April, 2012, depreciation on the item lost was taken till that date and removed from the gross block and accumulated depreciation and booked as Loss Due to Robbery under Extraordinary Item. The Written Down Value as on date of incident was booked as Loss under the Profit & Loss Account. The company has filled the Insurance Claim but as the company predicts the time period will be long to get the claim thus loss was booked to show the clear picture of Financial Statements

Note on inventories:

 a) Raw Materials

b) Work in progress

c) Finished goods

d) Stock in trade
(in respect of goods
acquired for trading)
e) Stores & Spares

f) Others (Steel Scrap)

 C.Y (Rs.)

P.Y (Rs.)

684,043,644

12,556,443

396,346,810

1,916,244

13,746,757

108,972,788

– 1,217,582,686

Note –  As the incident of the Robbery had taken place on 12th April, 2012, Inventory item lost was booked as “Loss Due To Robbery” under Exceptional Item. The company has filed the Insurance Claim but as the company predict the time period will be long to get the claim thus loss was booked to show the true and fair view of Financial Statements.

From Auditor’s Report

1.  We have audited the Balance sheet of VIKASH METAL & POWER LIMITED as on 30th June, 2012 and also the Profit & Loss Account and the Cash Flow Statement for the period from 01.04.2011 to 30.06.2012, annexed thereto. These financial statements are the responsibility of the Company’s management.  Our responsibility is to express an opinion on these financial statements based on our audit.

2.  We have conducted our audit in accordance with auditing standards generally accepted in India.  Those standards required that we plan perform the audit to obtain reasonable assurance about whether the financial statements are free of material misstatement.  An Audit includes examining, on a test basis, evidence supporting the amounts and disclosures in the financial statements.  An audit also includes assessing the accounting principles used and significant estimates made by management, as well as evaluating the overall financial statement presentation.  We believe that our audit provides a  reasonable basis for our opinion but restricted to the following:-

Since in the referred period, a major incident took place at the work site of the company.  A robbery took place at the works site and major parts of plants has been reported lost and looted thus putting the question on the going concern concept of the company and moreover the company operation was suspended from October, 2011.

The management of the company has explained to us that in the said robbery, many important papers were found missing and the company is trying to recreate all the missing papers.

Further, the management has explained that during the said period the company has loss to tune of Rs. 16,064.84 lakh which has eroded the company capital and the net worth becomes negative and still the liabilities on the company are huge. The company is indebted to bankers; statutory liabilities are also here and not being paid up from more than six months and outstanding liabilities to many trade payables which is again a point of concern.

4.    Further to our comments in the annexure referred to in paragraph 3 above, we report that:

a)    The management could not provide us all the information and documents due to papers destroyed in robbery as explained by the management.

b)    Limitation of Scope, In our opinion, proper books of account, are maintained as required by law, and kept by the Company so far as appears from our examination of those books kept at the company’s office, but we are unable to form any opinion on factory accounts as we were not in a position to examine the books kept at factory due to its destruction during robbery.

c)    The management has not ascertained the impairment loss, if any, required to be provided form in accordance with the requirement of mandatory Accounting Standard-28 “Impairment of Assets” issued by the Institute of Chartered Accountants of India. In view of it involving judgment of the management, we are unable, to quantify the same;

d)    As explained by the management, no actuary valuation for gratuity has been made by the actuarial as no employees was there as on 30th June, 2012.

e)    The Balance Sheet, Profit & Loss Account and Cash Flow Statement dealt with by this report are in agreement with the books of accounts maintained.

f)    In our opinion, the Balance Sheet, Profit & Loss Account and Cash Flow Statement dealt with by this report comply with the Accounting Standards referred to in s/s. (3C) of Section 211 of the Companies’ Act, 1956;

g)    On the basis of the written representations received from the directors and taken on record by the Board of Directors, none of the directors of the Company is disqualified as on 30th June, 2012 from being appointed as a director in terms of clause (g) of s/s. (1) of Section 274 of the Companies Act, 1956;

h)    In our opinion and to the best of our information and according to the explanation given to us, the said statement of accounts, read with the Accounting Policies & Notes thereon, give the information required by the Companies Act, 1956 in the manner so required and give a true and fair view in conformity with the accounting principle generally accepted in India:

1)    in the case of the Balance Sheet, of the state of affairs as on 30th June, 2012,

2)    in the case of the Profit and Loss Account, of the Company for the period from 01-04-2011 to 30-06-2012, and

3)    in the case of the Cash Flow Statement, of the cash flows of the Company for the period from 01-04-2011 to 30-06-2012.

Society News

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Workshop on ‘How to conduct a Tax Audit’, 2nd August 2013



L to R: Mr. Himanshu Kishnadwala (Speaker), Ms. Nina Kapasi (Speaker), Mr. Gautam Nayak, Mr. Naushad Panjwani (President) and Mr. Jagdish Punjabi

The Taxation Committee at BCAS had organised a full-day workshop for students and fresh Chartered Accountants on “How to conduct a Tax Audit”. This workshop was intended to revisit the nuances of Tax Audit in light of the revised Guidance Note issued by the ICAI as well as the e-filing procedures recently prescribed. The speakers amplified the knowledge of the audience with their rich experience and case studies.

Himanshu V. Kishnadwala

Overview and expert

 

observations on the
audit-

 

related clauses of
Form 3CD

 

including the recent
guidance

 

note issued by the
ICAI

 

 

Anil J. Sathe

Overview and expert

 

observations on the
tax-related

 

clauses of Form 3CD
including

 

the recent guidance
note issued

 

by the ICAI

 

 

Sonalee A. Godbole

Tax Audit – Clause – 12A to 21, 25

 

to 27

 

 

Nina P. Kapasi

Discussion on 3CD Clauses – 1 to

 

12, 22-24

 

 

Samir L. Kapadia

E-filing of Tax Audit Report

 

 

The Brains Trust session chaired by the Trustees Anil J. Sathe and Himanshu V. Kishnadwala was very ably managed with a threadbare analysis of the provisions of law vis-a-vis the question bank circulated to the participants. Nina P. Kapasi and Sonalee A. Godbole covered all the clauses of Form 3CD with examples and solutions for practical issues faced while conducting such audit. The handy tips and virtual experience of e-filing of the Tax Audit report conducted by Samir L. Kapadia was very interesting and the audience had a large number of queries sorted out in this session. For the

first time, a practical demonstration was given for e-filing of the tax audit report which was appreciated. Considering the popularity of this workshop held in the past, this year a bigger venue was chosen in the western suburbs (Vile Parle) wherein more than 400 participants benefitted from the workshop.

The video recording of the same is available at www.bcasonline.tv to all subscribers.

Tree Plantation-Visit to Dharampur, 2nd August 2013

The Human Resource Committee of the Society, in their pursuit to contribute to the conservation of nature and rural economic development, organised a tree-plantation programme at Dharampur – Pindval on 2nd and 3rd August 2013, with the support of the Sarvodaya Parivar Trust.

This was a landmark project of planting about 25,000 trees of different types with the twin purpose of developing Gram Vans on village land (to take care of environmental crises) as well as carrying out captive plantation on the land of farmers.

The members of BCAS and their friends donated generously for the project in their endeavour to contribute to this noble task. The group of 15 members from BCAS, looking ahead for active participation in the venture, visited Dharampur.

They distributed 1,500 saplings of mango trees to the farmers. Along with the farmers of village, they planted some mango trees. It was indeed a most satisfying feeling to be with those farmers on the field for a few hours and touch the roots of their life.

They had also great opportunity of  sparing time at Nandigram and had a chance of sharing time with Smt. Kundanikaben Kapadia  who is the founder  trustee of Nandigram. Along with the earlier efforst of Respected Late Shri Makarandbhai Dave,  she has also dedicated her life for the upliftment of this tribal area.

We learned about the fantastic contribution of these NGOs towards rural economic development, nursery developments, healthcare, education, environment and water management, among other areas.

It was an excellent, enriching, elevating and divine experience for the participants.

17th International Tax & Finance Conference, 2013

The 17th Residential International Tax & Finance Conference organised by the International Taxation Committee from 15th August to 18th August 2013 at ITC Rajputana, Jaipur, received an enthusiastic response from over 180 participants from various parts of India including Hyderabad, Bangalore, Chennai, Coimbatore, Delhi, Ahmedabad, Pune, Goa, Secunderabad, Jamnagar, Kolkata and Mumbai.

The following papers were presented by eminent faculties:

Papers for Group Discussion

•    Recent trend in Indian Treaties including Tax Information Exchange Agreements by Mr. T. P. Ostwal who analysed recent trends in Indian tax treaties in respect of various topics such as taxation of partnership firms, persons covered, appropriate adjustments arising from transfer pricing additions, anti-abuse provisions, user-based royalty, service PE and automatic review of treaty provisions. The faculty also dealt with Tax Information Exchange Agreements including Foreseeable relevance and concept of Fishing Expedition.

•    FII, Participatory Notes, Private Equity – Structuring, regulatory and taxation aspects by Mr. Siddharth Shah who dealt with regulatory framework of foreign investment into India such as FDI, FVCI, FII & QFI, indirect FDI, FVCI investment into VCF, FII regulations, FII investment under FDI route, investment in NCDs, Participatory Notes and Derivative Instruments, domestic PE investments, structuring for PE funds and key taxation issues.

•    Cross border outsourcing— Tax aspects including transfer pricing—Case Studies by Mr. Padamchand Khincha who analysed intricate issues in respect of outbound outsourcing such as interplay of sections 5 and 9, detailed analysis of section 9, treaty provisions, other relevant areas of concerns such as reimbursement of expenses whether taxable as FTS, location savings, employee secondment or deputation, body shopping and transfer pricing.

• Cross    Border    Merger/ Demerger—Tax and relevant regulatory  aspects  by  Mr. Pranav Sayta who presented intricate case studies involving issues such as indirect transfer, investments structured by way of CCPS or CCD, taxation of dividend, inbound and outbound mergers and demerger of a PE by a foreign company.

Papers for Presentation

•    Real  estate  investment  in India—Structuring, regulatory and taxation aspects presented by Mr. Nishchal Joshipura who covered regulatory milestones, various investment regimes, types of instruments, FDI policy on real estate, permitted investments, NCD structure & comparison with CCD, FII vs. QFI, Singapore listing, regulatory & tax challenges and key structuring issues.

•    The Foreign Account Tax Compliance Act (FATCA) of the US including Bilateral FATCA Agreements presented by Mr. Sunil Kothare on behalf of Mr. David Weisner where the learned faculties highlighted key provisions of the FATCA and implications in India.

The participants gained rich knowledge from the knowledge and experience shared by eminent faculties, group discussions and informal interactions. The audience also appreciated the overall ambience and comfort at the venue.

Representation

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13th August 2013
To,
The Hon’ble Chairperson
Central Board of Direct Taxes
North Block, Parliament Street,
New Delhi – 110001.

Madam,

subject : Representation in respect of hardships likely to be faced by assessees in respect of returns of income for AY 2013-14

We wish to draw your attention to the hardships likely to be caused while filing Return of Income for Assessment year 2013-14 and give our suggestions for your kind consideration:

1. Hardships in respect of Electronic furnishing of the report of audit under section 44AB, 92E or 115JB of the Act

1.1 Proviso to Rule 12(2) of the Income-tax Rules, 1961 [the Rules], inserted by IT (Third Amdt.) Rules, 2013 notified on 1-5-2013 w.r.e.f. 1-4-2013, provided as under:

“Provided that where an assessee is required to furnish a report of audit under section 44AB, 92E or 115JB of the Act, he shall furnish the same electronically.”

1.2 After the notification, the forms and the utility files were hosted on the efiling website in the month of July 2013 and have undergone several changes. After each change, an assessee, who has partly filled in a report but has not uploaded it, is required to re-feed the entire data, verify and then upload in the latest version for the report to be furnished on the website.

1.3 Considering the time involved in re-entering the voluminous data in the specified format for uploading the reports in Form 3CD, considerable time will be required by each assessee / tax practitioner / Chartered Accountant to upload a tax audit report.

1.4 In addition, there are many issues / difficulties in filling in the various clauses / columns of electronic Form 3CD, which requires immediate attention and clarification. For example:

i) Attachment of the Financial Statements – It is not clear as to whether the Financial Statements to be attached MUST BE A SCANNED COPY of manually signed statements or a PDF file digitally signed will be treated as sufficient compliance.

ii) Clause 14 – Depreciation – There is no column to give details of additional depreciation. Whether date wise details of all the minor items of additions to fixed assets are to be given? This data could run into a few thousands for many businesses, and would take substantial time to reenter. Is there any limitation on the number of items one can enter?

iii) Clause 15 – Under sub clauses a) & b) is it necessary to select each section & put ‘0’ in the amounts column if there is nothing to report under this clause? Or can we simply skip filling any information in this clause?

iv) Clause 17 & 17A – Under sub clauses a) & b), h)B) of Clause 17 & Clause 17A, it is normal practice to give appropriate comments by the assessee / tax auditor. But for e filing form, the space provided is not sufficient. So in that case is it proper for the assessee tax auditor to keep the appropriate comments / remarks / explanation in the hard copy but in the online form we only fill “NIL’ or ‘0’?

v) Clause 19 – Under this clause whether we have to select each section and fill NIL ‘0’ or we can skip filling this clause, if there is no information to be reported?

vi) Clause 21 – Under sub clause (i)(B) (b), normally the Tax Auditor fills the information till the date of signing of the Audit Report. If the payment is made after the date of Audit Report but before the due date of filing ITR u/s 139(1) of the Act the same is allowed u/s 43B of the Act. Now if the Tax Audit Report is signed on 20.6.2013 and the amounts unpaid are shown under the above sub clause and the Form 3CD is being uploaded on 16.8.2013, by which time the said amounts have already been paid, what information should be filled in this sub clause? Further suppose the payment is not yet made, and the Form 3CD is uploaded on 16.8.2013 and the assessee makes the payment after 16.8.2013 but before 30.9.2013, and while uploading the ITR does not disallow the amounts u/s 43B of the Act, will there be a problem of disallowance while processing the ITR by CPC, Bengaluru?

vii) Clause 24 – Under sub clauses a) & b) if the loan is accepted or repaid by way of any journal / transfer entry or electronic funds transfer, the remark to that effect is given in Tax Auditor’s report. However, in the e filing of the Form 3CD, the assessee/ tax auditor has to only state whether the amount was accepted / repaid by otherwise than by account payee cheque or demand draft, and options available are only ‘Yes’ or ‘No’. In this case, selection of option ‘No’ without appropriate remarks may lead to penal proceedings under the Act.

viii) Clause 27 – Under sub clause a), the tax auditor normally gives the appropriate remarks/comments/explanation in this regard. But in the online form 3CD, only ‘Yes’ or ‘No’ options are provided under this sub clause. So in that case is it proper that in tax auditor’s hard copy he keeps the appropriate remarks / comments / explanation, but in the online form he only fills “Yes’ or ‘No’?

ix) Clause 27-Sub clause b)(ii) – Besides the normal short deduction, a Tax Auditor normally reports the cases wherein the tax is deducted under wrong section resulting in short deduction, e.g. if tax is deducted u/s 194C instead of u/s 194J. However, in the online form 3CD, short deduction only in the respective section can be reported. Under these circumstances, how does one report the fact of short deduction due to wrong section?

x) Clause 27 – Sub clause b)(iii) – In addition to the late deduction, the tax auditor normally gives the information about tax deducted but paid late i.e. after the due date of payment. However, there is no such option in the online form 3CD. In that case is it proper that the tax auditor gives this information in the hard copy but no reporting is done in the online form3CD?

xi) Clause 27 (b)(iv) – Normally nowadays there is no such situation wherein tax is deducted but not paid to the Central Govt. as in such a situation the entire expense gets disallowed. However, it is possible that till conclusion of the Tax Audit Report, the TDS may not have been paid. So in a situation wherein the Tax Audit Report is finalized on 20.6.2013, and under this clause a default is reported. Till uploading of the online Form 3CD, say on 16.8.2013, the TDS is not paid. The assessee pays the TDS after 16.8.2013 but before 30.9.2013 and uploads the ITR without disallowing any amount U/S 40(a)(ia). What will be the consequences?

xii) Clause 28 – This clause deals with quantitative details. In case of Trading / Manufacturing Unit normally the data is available. But if the same is not available, the tax auditor simply reports “Information Not Available”. Now the questions are 1) If the data is not available at all till uploading of the report, can a tax auditor skip this clause? 2) If the data is made available after signing of the Tax Audit Report but before uploading the Form 3CD, whether the same should be filled in? In that case, whether the signed Tax Audit Report needs to be revised?

xiii) Clause 28(b)(A) – In case of manufacturing assessees, if yield is more than 100%, the utility does not accept it.

xiv) Clause 32 – In case of service industry or professionals, normally the tax auditors report states that “The activity of the assessee is neither trading nor manufacturing – as such these ratios are not applicable.”

In the online filing there is no space for this comment. In this situation can a tax auditor simply skip this clause? In that case, is it proper that a tax auditor gives this statement in the hard copy but no reporting is done in the online form3CD?

xv)    In addition, many other clauses of Form 3CD need appropriate disclosures by way of Notes etc. No disclosure can be made unless space is provided in required fields, e.g. Disclosure of section 145A, Payments made by cheque or bank draft for section 40A(3), 269SS and 269T, etc.

xvi)    The Annexure II is still part of the Form 3CD. However, from A.Y. 2010-11 the provisions of FBT are made ineffective. The online Form 3CD also does not provide this Annexure II. What is the exact position? Are tax auditors supposed to report NIL under this annexure? Normally, tax auditors report NIL and the fact that provisions of FBT are made ineffective from A.Y. 2010-11 is also reported.

1.5    Certain voluminous data needs to be keyed in into the utility, such as asset wise addition to fixed assets, which would take a considerable amount of time for many assessees. Presently, no software is readily available which will automatically convert existing tax audit reports in word or excel format into xml files.

1.6    Suggestions

a.    In view of the above difficulties/issues, it is suggested that the requirement of furnishing report of audit electronically be made applicable from Assessment Year 2014-15 (i.e. next year) onwards, by which time appropriate software would be available for conversion.

b.    Alternatively, the due date for furnishing the report of audit be extended to 31st December 2013 instead of 30th September 2013 (i.e. extension of three months for furnishing the report), while the return can still be uploaded by the due date of 30th September/30th November, as the case may be.

c.    Clarification should be issued immediately in respect of various issues arising in respect of electronic filing of Form 3CA/3CB/3CD, as pointed out above.

2.    Schedule AL in Form ITR-3 & ITR-4

2.1    From Assessment Year 2013-14, in Return Forms ITR 3 and ITR 4, an additional Schedule AL is inserted. In cases, where the assessee’s total income exceeds Rs. 25 Lakh, he is required to disclose the cost of certain assets, which are not business assets, which includes cost of Land, building, balance in bank, shares and securities, Insurance policies, loans and advances given, cash in hand, jewellery, bullion, drawings, painting, vehicles, yachts, air crafts, etc.

2.2    There are various issues / difficulties in giving the cost of certain assets mentioned above, some of which are as under:

i)    Insurance policies: What is the meaning of ‘cost’ of life insurance policy? Whether bonus to be included? It is not clear whether the premiums paid, or the surrender value or the maturity value is to be mentioned. Premiums may have been paid by either parent or spouse, and may not necessarily have been paid by the assessee. It is not clear as to what the cost should be taken as in such cases. Whether only life insurance or also general insurance?

In cases of partial cash back received, whether cost to be reduced? By amount of cash back or proportionately?

ii)    Land/ building and Jewellery / bullion: These may have been acquired by way of gift or inheritance. The cost would be zero in such cases. In case of self acquired assets, the exact cost may not be known if the property is old and same is not shown in personal Balance Sheet of the assessee. It is also not clear whether it includes property agreed to be purchased – possession & conveyance pending? Whether includes property agreed to be purchased & possession taken – conveyance pending? Cost – whether payment yet to be made to be included? In relation to Cost – whether includes stamp duty, registration fee, transfer fee, brokerage? Whether pre-EMI interest on housing loan forms part of cost? Whether interest on loan for purchase of land forms part of cost? All this need clarification.

iii)    Archaeological Collections, Drawings, Paintings, Sculptures, Works of Art: Many works of art may have been received as gifts, etc. from friends or relatives. The schedule does not draw any distinction between works of art costing a few hundred rupees, and works of art costing a few thousand rupees. Assessees may not have details of the cost of inexpensive works of art. It is also not clear whether the following have to be included:

•  Stamp Collections

•  Coins/Currency Note Collections

•  Valuable Old Edition Books, Maps

•  Photographic Collections etc.

iv)    Deposit in banks: It is not clear whether the Savings bank balances to be mentioned have to be – as per bank passbook/ statements or as per personal accounts of assessee? Fixed Deposits – whether interest accrued to be added? PPF Account/ Senior Citizens Savings Scheme Account with banks – whether to be included? Whether Post Office MIS Deposits or Savings Accounts to be included?

v)    Loans and Advances given: Interest bearing as well as interest free loans to be taken.

Whether to include loans to partnership firm by partner? Advances for purchase of property/other assets – whether to be taken?

vi)    Whether in case of non-residents, foreign assets and liabilities are to be included in this schedule? How to disclose assets received as gift/inheritance?

In addition, there are various other practical difficulties in filling up this schedule.

2.3    Suggestions:

a.    It is therefore strongly suggested that further thought needs to be given to the applicability of this schedule and hence Schedule AL should not be mandatory for Assessment Year 2013-14.

b.    Schedule AL should be made applicable from Assessment Year 2014-15 to all taxpayers with income exceeding Rs. 50 lakh.

c.    Clarifications should be issued in respect of various issues in this regard particularly, what is meant by cost in different situations, with an additional column of remarks in the ITR, so that the assessee can make appropriate disclosure.

3.    Today there is no provision for making disclosure of certain debatable claims while filing the income tax returns. At times, this gives rise to unnecessary litigation regarding levy of penalty u/s.271(1)(c) for concealment. In such cases, though there is no intention to conceal, no disclosure can be made on account of the e return format.

Just as in the case of tax audit report, where scanned copies of signed accounts have to be annexed, provision should also be made in the e return for attaching a pdf statement making disclosures which the assessee desires to make. This will avoid unnecessary litigation
.

In view of above, we therefore request you to grant extension of time for filing Report u/s 44AB & 115JB at the earliest, to defer the applicability of the Schedule AL to AY 2014-15 and to permit filing of disclosures in pdf format as attachments to the e return. Your early action in this regard shall be highly appreciated.

Yours truly,

For Bombay Chartered Accountants’ Society

Naushad Panjwani
President

Gautam Nayak
Chairman
Taxation Committee

ICAI and its members

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1. Code of Ethics:

The Ethical Standards Board of ICAI has given answers to some ethical issues raised by our members. These are published on pages 226 to 228 of C. A. Journal for August, 2013. Some of these issues are as under:

Issue:

What is Code of Ethics?

Every profession has its own Code of Ethics. The Chartered Accountants Act, 1949 has been enacted by Parliament for the regulation of the profession of Chartered Accountants and for the purpose of carrying out the object of the Act, the Chartered Accountants Regulations, 1988 have been enacted. The Act has two schedules i.e., First Schedule and Second Schedule.

The first Schedule has four parts:

Part I – Professional misconduct in relation to Chartered Accountants in Practice.

Part II – Professional misconduct in relation to Members of the Institute in Service.

Part III – Professional misconduct in relation to Members of the Institute generally.

Part IV – Other Misconduct in relation to the Members of the Institute generally.

The Second Schedule has three parts:

Part I – Professional misconduct in relation to Chartered Accountants in Practice.

Part II – Professional misconduct in relation to Members of the Institute generally.

Part III – Other misconduct in relation to members of the Institute generally

These two schedules along with the decisions of the Courts on profession misconducts, decisions, directions, guidelines, statement, clarifications and also interpretations of the Council on the various clauses of these two schedules constitute the Code of Ethics for the accountancy profession.

Issue:

What is Professional or other misconduct?

Section 2 of the Act defines professional or other misconduct as follows:

For the purposes of this Act, the expression “professional or other misconduct” shall be deemed to include any act or omission specified in any of the Schedules, but nothing in this section shall be constructed to limit or abridged in any way the power conferred or duty cast on the Director (Discipline) u/s.s. (1) of Section 21 to inquire into the conduct of any members of the Institute under any other circumstances.

What constitutes “misconduct under any other circumstances” has to be determined on a caseto- case basis keeping in view the facts of the circumstances of each case. Fraud, intention to deceive and committing an act which affects the public or society at large could be in the ambit of such misconduct. Following are few examples of “misconduct under any other circumstances” by a member:

1. Conviction by a competent Court for an offence involving moral turpitude punishable with imprisonment or for an offence not of a technical nature committed by a member in his professional capacity.

2. Retention of books and documents of the client and failure to return these to the client on request without a reasonable cause.

3. Material misrepresentation e.g. misrepresenting to a firm, while seeking employment as an accountant, that he has worked for three years as a senior assistant with another firm.

4. Publishing an advertisement in a newspaper with mala fide intention to malign any person.

5. Using objectionable, derogatory and abusive language or/and making irrelevant, incoherent, irresponsible and insane statements in his correspondence with a person.

Issue:
Whether a member in practice is permitted to undertake the management of NRI funds?

No, the member is not permitted to undertake such assignment because the same is not covered under “Management Consultancy and Other Services” permitted to be rendered by the practicing members of the Institute.

Issue:

Can a Chartered Accountant provide ‘Portfolio Management Services’ (PMS) as part of CA practice?

No, the Explanation to Clause (xix) of the definition of “Management Consultancy and other Services” expressly bars the activities of broking, underwriting and Portfolio Management.

Issue:

Whether a Chartered Accountant in practice is not required to obtain any trade license for practicing?

No, a Chartered Accountant in practice is not required to obtain any trade license for practicing as a professional. The certificate issued by the Institute is the only requirement to practice as a Chartered Accountant.

Issue:

Can a Chartered Accountant in practice work as a Collection Agent/Recovery Agent?

No, a Chartered Accountant in practice cannot work as a Collection Agent. However, he can act as a Recovery Consultant as provided in clause (xxv) of “Management Consultancy and other Services”.

2. EAC Opinion:

Adjustment of losses on Sale of Fixed Assets, Writing-Off Inventory and Doubtful receivables against Capital Reserves Arising Out of Acquisition of Business, Capital Redemption Reserves and Revaluation Reserves.

Facts
A company (hereinafter referred to as ‘the company’) is a 50:50 joint venture between two companies. The company is in the business of manufacture and sale of power/telecom cable joining kits, transformers, gas meters, energy meters & corrosion protection products and providing services. During the financial year 2010- 11 (i.e., w.e.f. 24th September, 2010), the company acquired the energy business, consisting of manufacture and sale of connectors, fittings and insulation products from another company, ‘A’ Pvt. Ltd, Bangalore, on a going concern basis under slump sale agreement. Based on valuation report from an independent valuer, the company has recognised fixed assets, inventories and liabilities at fair value and a capital reserve of Rs. 1476.72 lakh being excess of assets acquired over purchase consideration paid. A part from the above-mentioned capital reserve, the company also has capital redemption reserve and revaluation reserve in its books as on 31-03- 2011. This break-up is as follows:

Rs. in lakh


Capital reserve created as above 1,476.72
Revaluation reserve                      82.17
Capital redemption reserve           250.00


1,808.89


2. During the financial year 2012-13, the company has passed the following two entries by debiting the above capital reserve:

(i) Non-moving inventory acquired out of the above acquisition amounting to Rs. 1,06,813.10 written off by debiting the above capital reserve.
(ii) Fixed assets acquired out of the above acquisition have been scrapped and loss amounting to Rs. 1,04,117.81 has been debited to the above capital reserve.

Query
In this context, the querist has sought the opinion of the EAC as to whether the correct accounting treatment has been applied by the company by debiting the above-mentioned reserves as per the provisions of the Accounting Standards and the Companies Act or any other law?

Opinion:
The Committee noted that the basic issue raised by the querist relates to adjustment of losses on sale/disposal of fixed assets, writing-off inventories and old and doubtful receivables against capital reserves created from business acquisition, and capital redemption reserves and revaluation reserves already standing in the books of the company.

The Committee notes that the Companies Act, 1956, does not specifically contain any provision for utilisation of capital reserve and revaluation reserve, Further, the Companies Act, 1956, does not envisage utilisation of capital redemption reserve for writing-off losses on sale of fixed assets as well as for writing-off inventory and doubtful receivables.

As regards accounting for non-moving inventories, the Committee is of the view that these represent obsolescence of inventories which would be reflected in the determination of net realisable value of the inventories. In the context of writing down the inventories to their net realisable value, the Committee after considering paragraphs 5 and 12 of Accounting Standard (AS) 5, ‘Net Profit or Loss for the Period, Prior Period Items and Changes in Accounting Policies’, notified under the ‘Rules’, is of the view that write-off of non-moving inventory should be included in the statement of profit and loss.

Further, as regards write-off of inventories due to shortages observed in the acquisition of business and writing off of old and doubtful receivables, the Committee is of the view that these represent losses. The Committee after considering paragraphs of the Framework for the Preparation and Presentation of Financial Statements, issued by the Institute of Chartered Accountants of India, is of the view that losses also represent expenses and accordingly, these should be charged to the statement of profit and loss as per the requirements of paragraph 5 of AS 5.

Accordingly, the Committee is of the view that any write-off of inventories and receivables cannot be adjusted against capital reserves, capital redemption reserves and revaluation reserves.

[Please refer to pages 263 to 265 of C.A. Journal, August vbn, 2013]

3.    ICAI News:

a)    Non-applicability of SA 700 on Tax Audit Reports:

The members are well aware that all audit reports in respect of audits of financial statements for the period beginning on or after 1st April, 2012 have to be issued in accordance with the requirement of SA 700 (Revised) – “Forming on opinion and Reporting on Financial Statements”.  The ICAI has clarified that since all the tax audit reports i.e., Form No./3CA/3CB are now mandatorily required to be filed online and that format of tax audit report is prescribed by the Central Government requires suitable changes in the forms, the applicability of SA 700 (Revised) on tax audit report is deferred by one year.

[Refer Page 203 & 204 of C. A. Journal, August, 2013]

b)    Examination Results:

Results of C. A. final and CPT examinations held in May, 2013 have been declared in July 2013. The details of percentage of candidates passed along with percentage are given below:

[Refer pages 329 & 330 of C. A. Journal, August, 2013]

c)   Certificate course on concurrent Audit of Banks:

   Members can take advantage of certificate course conducted by ICAI on Concurrent Audit of banks

[For details, refer Page 341 of C. A. Journal, August, 2013]

d)  New ICAI Publications:

i)  Compendium of Implementation Guides to Engagements and Quality Control Standard

ii)  Implementation Guide to Standard on Auditing (SA) 501 “Audit Evidence – Specific Consideration for Selected Items”

iii) Compendium of Technical Guides on Internal Audit (Five volumes)

iv) Compendium of Standards on Internal Audit

[Please refer pages 347 & 348 of C.A. Journal, August, 2013]

Direct Taxes

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DTAA between India and Estonia notified: Notification No. 27/2012 dated 25th July, 2012

The Double Tax Avoidance Agreement signed between Estonia and India on 19th September, 2011 has been notified to be entered into force on 20th June, 2012. The treaty shall apply from 1st April, 2013 in India.

DTAA between India and Lithuania notified : Notification No. 28/2012 dated 25th July, 2012

The Double Tax Avoidance Agreement signed between Lithuania and India on 26th July, 2011 has been notified to be entered into force on 10th July, 2012. The treaty shall apply from 1st April, 2013 in India.

Income tax (Eighth amendment) Rules, 2012 – Amendment in Rule 12 and substitution of ITR 7 – Notification no- 29/2012 [F.No. 142/31/2011-TPL] dated 26th July, 2012

Due date of filing returns for assessee required to file their return by 31st July extended till 31st August 2012 – Direct Tax Order F.No. 225-163-2012-ITA.II dated 31st July, 2012

Disallowance of expenses u/s 37(1) incurred in providing freebees to Medical Practitioner by pharmaceutical and allied health sector Industry – Circular No. 5/2012 dated 1st August, 2012

The Medical Council of India (Governing Body) has imposed a prohibition on the medical practitioner and their professional associations from taking any Gift, Travel facility, Hospitality, Cash or monetary grant from the pharmaceutical and allied health sector Industries. It has been clarified by the Board that in cases where such freebees are provided, such expenses would be disallowed as per the provisions of section 37(1) read with its Explanation. Since such expenses would be covered under “prohibited by any law”, and cannot be claimed as business expenses. Further, the AOs of such medical practitioners and their professional associations have been directed to look into and consider the value of such freebees as either business income or income from other sources as the case may be.

Mandatory E-filing of return of income by representative assessees of non-residents and in the case of private discretionary trusts relaxed for assessment year 2012-13 – Circular No. 6/2012 [F.No. 133/44/2012-SO (TPL)] , dated 3rd August, 2012

It would not be mandatory for agents of nonresidents, within the meaning of section 160(1) (i) of the Income-tax Act and for ‘private discretionary trusts’ to electronically furnish the return of income for assessment year 2012-13, though its total income exceeds Rs 10 lakh.

Tax Information Exchange Agreement (TIEA) entered with Guernsey – Notification No. 30 dated 9th August 2012 – India has entered into a TIEA with Guernsey for sharing of information with respect to taxes. The Agreement shall enter into force from 11th June, 2012.

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Business Etiquette

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In the previous article on the subject of business etiquette, we discussed e-mail etiquette norms. In the current article we will discuss norms for mobile phone etiquette and business meetings.

Mobile phone etiquette

It was not a long time ago that there were training sessions on how to speak on the landline telephone. While technology is making landline telephones obsolete with introduction of mobile phones, fundamentals have not changed on how to communicate effectively on the phone. In fact, the need to know basic etiquette norms for handling conversations on the mobile phones has increased because of breach of privacy it can create. Hence, while some basic etiquette, such as speaking softly, introducing yourself if you are the caller and always asking for the person by his name followed by a designation when dialling a board-line in large organisations is taken for granted, some of the points that one must bear in mind about mobile etiquette are discussed below.

  •  Always ask whether the receiver is comfortable taking the call at that time. If not, find out what time would suit him.
  •  Please be careful in selection of the ring tone of the mobile. A wild ring tone will be very embarrassing in the business circle and will not be appreciated, as it could label you as frivolous. Imagine the negative impact a ring tone of a crying baby can create when you are in public place with business associates. As a professional, your ring tone as well as caller tune should be as sober as possible since it reflects who you are and your work culture.
  •  Always keep your mobile on silent or vibration mode during business meetings or while in club, auditorium, hospital or dispensary. Sometimes mobile phone usage is prohibited at certain public places, especially overseas; hence it is better to check the signs before using the mobile. For instance, there are some compartments in long-distance trains abroad where mobile phones are not allowed to be used.
  •  Do not ever listen to music on mobile phone at a public place without using headphones.
  •  If your phone is not responded, follow up by a text message with a request to call up when free. If your call is diverted to a voice mail, then leave a brief message as to why you called up and end with a date and time. If there is urgency, then state that on the voice mail. For instance, you may say that you called up to inform that you have not received the missing information which is required for submission of appeal and you should be contacted urgently to discuss the same.
  •  Do not take a call when you are in an important business meeting or consultation. It is extremely insulting and irritating to other members. If still unavoidable, then excuse yourself, walk away a short distance and quickly finish the call. Do not let it happen too frequently.
  •  While sending text messages, be brief and discreet. Never send any message of a sensitive nature. It is better to convey such message during one-on-one conversation. The reason is that you do not have control over the confidentiality on the recipient’s mobile.
  •  If you have put the call on a speaker phone, then inform the other side. Unaware, he could blurt out something that might not be appropriate for others to hear.

Etiquette for business meeting

It is important to set the agenda for the business meeting and set the time duration in advance. This is expected to be generally done by the initiator in consultation with the person with whom meeting is requested. It is always preferable to clarify whether any special hardware/software or Internet will be required during the meeting, so that arrangements could be made in advance. Having a back-up arrangement, should something fail, always saves embarrassment.

Be punctual. In case of an unavoidable delay, call up, apologise and request for revised time. If meeting for the first time, remember a few protocols. The host should introduce himself first with the guest and then his colleagues. The guest should then introduce his colleagues to the host and allow his members to self introduce to the members from the host side. Exchange of visiting cards should be done with the right hand or both hands with a slight bow. Do not put the visiting card in the wallet if you are a male. It literally means that you are sitting on someone in your pocket. As far as possible, let the visiting card remain in front of you on the table during the meeting, so that you are constantly reminded of the name and designation of the other person. It is advisable to distribute your card only to the main member and not to all the participants in the meeting unless asked specifically by someone.

 In formal meetings, wait for the Chairman to take the seat and sit where directed. Never jump to business talk without a few positive and polite statements of gratitude and appreciation. There are a few ice-breakers or a small talk on subjects of common interest like weather, current events, etc. which always helps set the ball in motion. Keeping time limit in mind give lead to get on with business. The lead could be something like . . . I will not take much of the precious time of the participants who have kindly consented to be present and with their permission whether it will be alright to move on to the first point of agenda.

After understanding the hierarchy, while presenting your point of view, always keep your eyes focussed on the anchor person. However, keep others also engaged with occasional eye-contact and enrolment by taking a small pause and asking if you are understood well enough. Keep your voice and body language soft and steady. Always voice your disagreement positively. For instance, you could say that you respect their viewpoint but you have certain practical considerations to be having a different viewpoint. Never show your impulse however unreasonable the contention from other side may be. Leave an escape vent to say that you are sure if that argument has come from person as distinguished as him then there must be some substance behind it and you will require some time to mull over it.

Start winding up before 5 minutes of the allotted time by summarising and end the meeting with thank you and wish to meeting again.

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ICAI News

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(i) New publications of ICAI (a) Indian Accounting Standards (Ind AS) Vol. I and II

(b) Technical Guide on Audit in Automobile Industry (Page 340)

(c) A Study on Prevention of Money Laundering Act, 2002

(d) A Study on, Drafting, Conveyancing, etc. of Commercial and other Documents

(ii) CA firms and SMP (a) ICAI has arranged a MCA 21 Compliance Software viz. ‘ICAI-ROC’ for members in practice and CA Firms (Page 341)

(b) ICAI has launched its exclusive website www.icai.org.in for members in practice and CA Firms (Page 341)

(iii) ICAI — Tax Suite ICAI has arranged a Tax Compliance Software viz. ICAI-Tax Suite for members in practice and CA Firms (Page 342)

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Code of ethics

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The Ethical Standards Board of ICAI has considered some ethical issues which are published in CA Journal for August, 2011, at page 214. Some of these issues are as under:
(i) Issue: Whether Companies in which Chartered Accountants have been appointed as Directors on their Board can publish their attainments:
In some cases, description about the Chartered Accountant’s expertise, specialisation and knowledge in any particular field as well as appellations or adjectives to their names are published in the prospectus or public announcements issued by the Company. The Council of ICAI has clarified that the inclusion of the name of the member of ICAI in such prospectus, public announcements or other public communication does not contravene Clauses (6) and (7) of Part I of the First Schedule of C.A. Act. However, the member should ensure that in such publications the Company does not advertise the professional attainments of the member. It is also necessary to ensure that by such publications member should not directly or indirectly solicit for professional work.
It is advisable for the member that as soon as he is appointed as a Director, he should specifically inform the Company about the above restrictions. He should request the Company that before any such communication is issued, the Company it should get the contents of the communication about the member approved by him.
(ii) Issue: Whether a Chartered Accountant/Firm is permitted to use logo on letter heads, stationery, etc.
The use of logo/monogram of any kind/form/style/ design/colour, etc. on any stationery, documents, visiting cards, magnetic devices, internet, letter heads, sign board, etc. is prohibited. Use/printing of member/QR:firm name in any other manner tantamounting to logo/monogram is also prohibited. However, a common CA logo has been allowed to the members, provided it is used in the correct manner within the terms of Council Guidelines.
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Lecture Meetings

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Taxation of Shares & Securities — Current Developments

A lecture meeting on the subject of ‘Taxation of Shares & Securities — Current Developments’ was addressed by Pradip Kapasi, Chartered Accountant and Past President of the Society on 3rd August 2011 at the Walchand Hirachand Hall, IMC.



Other programmes

Visit to Dharampur — Kaprada — Bilpudi — Vansada for Tree Plantation and Development Activities

Human Resources Committee of the Society organised a visit to Dharampur — Kaprada — Bilpudi — Vansada in Dist. Valsad and Dist. Navasari, Gujarat for tree plantation and development activities on 19th and 20th June 2011.

The tree plantation was carried out in memory of late Hiten C. Shah, a very active member of the Society, at village Matuniya. This village had been adopted by late Hiten C. Shah and the group pledged to continue the good work done by him. Chartered Accountant; and Introduction to International Taxation by Mayur Nayak, Chartered Accountant.

Students’ Annual Day Celebrations

The Students’ Annual Day now renamed as “The Jal E. Dastur Students’ Annual Day” in loving memory of Jal E. Dastur was celebrated on 6th August 2011 at Direct I-Plex, Andheri. Over 150 students enthusiastically participated in the programme. The students were addressed by Padmashri T. N. Manoharan on the topic ‘Design to Win’. This was followed by hotly contested elocution and quiz competitions.

The winners at the competitions were:

Elocution competition
1. Rutu Shah
2. Ashish Arvind Shukla

Quiz competition

1. Ajay Joshi and Janam Oza
2. Hrushabh Pai and Sagar Kothari Sohrab E. Dastur, Senior Advocate was present throughout the programme and blessed the students.


International Tax & Finance Conference 2011

The 15th International Tax & Finance Conference 2011 was organised by the International Taxation Committee of the Society from 12th August 2011 to 15th August 2011 at the very vast and scenic campus of the Infosys Leadership Institute at Mysore. The papers for group discussions were: ‘Qualification and Characterisation Issues’ by P. V. Srinivasan, Chartered Accountant; ‘General Anti-avoidance Rules’ by T. P. Ostwal, Chartered Accountant; and ‘Case Studies on International Taxation’ by Pranav Sayta, Chartered Accountant. The following technical papers were also presented : ‘Inbound Investment — Private Equity Fund, VCF, FII — Structuring, Regulatory and Tax Aspects’ by Shefali Goradia, Chartered Accountant; and ‘Cross-border Service-tax Issues’ by K. S. Ravishankar, Advocate.

A panel discussion on ‘Case Studies on International Taxation’ was presented by H. Padamchand Khincha, Chartered Accountant and Chythanya K. K., Advocate.

At the Certificate Distribution Programme jointly organised by BCAS and H.R. College of Commerce & Economics, Dr. (Mrs.) Indu Sahani, Principal was felicitated on her appointment as a ‘Member of University Grant Commission’, New Delhi.

  
 

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From the President

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Dear readers,

The events of the past few days makes one feel that India is passing through turbulent times. We are witnessing a strong movement led by Shri Anna Hazare against corruption, with the passing of the Jan Lokpal bill as its immediate aim. We have seen a whitewash of the Indian cricket team in the recently concluded Test series in England. Our country has also felt the tremors of downgrading of the US economy by Standard and Poor the renowned rating agency.

However, I believe that there is one common thread running through these three different events occurring in different countries. That common factor is the weightage that society is giving to the quantum of money one earns and spends, irrespective of the manner that it is earned and the way that it is spent. We have seen a gradual downfall in the value system with a corresponding rise in the importance of wealth. There are many other reasons for corruption but the social recognition that wealth has is a very significant factor. It is on account of the desire to earn the maximum money in the shortest possible time that people adopt undesirable means and our cricketers are no exception. In the US there is uncontrolled spending and consumption, without paying heed to earning abilities. This results in borrowing beyond one’s ability to repay and its consequences have already been experienced by the world.

However, even if one is worried at the turn of events there is still hope. From 13th of August the BCAS had arranged its International Tax and Finance Conference at the Infosys training centre in Mysore. The experience of those four days is something that all participants will cherish for a long time to come. The foresight with which this institution has been built makes one’s heart swell with pride. We were fortunate to experience the world class facilities of the centre as well as the high ethical standards of its creators. It is institutions like these that will ensure that India’s march towards becoming a global power continues unhindered.

Coming back what one witnessed on the streets of Mumbai, scenes which were also replicated all over the country is evidence of the fact that the youth of this country want a change and they are willing to participate in an agitation for that purpose. It is this enthusiasm that needs to be harnessed so that many other illnesses that face this country can also be addressed. I would suggest that those in charge of the agitation at Delhi pay heed to this aspect and use their resources to give direction to this large pool of youth energy.

In the wake of Shi Hazare’s agitation many other aspects have taken a back seat. Important bills and initiatives like the Direct Tax Code, GST and the Companies Bill are hardly being discussed. I am, however, sure that eventually these will have to receive attention. Society has made various representations in this regard and one hopes that the government will consider the views of the society before these bills become final acts.

At the micro level, the Society has been live to the problems that members face while complying with the requirement to file returns electronically. A large number of returns were filed electronically last year and the number has more than doubled this year. Unfortunately, the processing of these returns has created a number of problems. To address these, the Society had organised a visit to the Central Processing Centre, Bangalore and had interacted with the officials there. I am happy to note that the response was very positive and some issues have already been sorted out and others will also be addressed through further interaction in the near future.

Apart from the requirement to file returns electronically, the Ministry of Corporate Affairs has also made furnishing of accounts mandatory for a certain class of companies in the new business reporting language XBRL. The Society has already organised a couple of programmes to increase member awareness and will continue doing so in the days to come. This requirement which is applicable to a limited number of companies in this year will be extended in the coming years to other companies. The new schedule VI has already been notified and the Society has also held a lecture meeting to discuss various issues emanating from the same.

When this communication reaches you, many will be engrossed in carrying out tax audits so that they can meet the 30th September deadline. We will be celebrating the festival of Ganapati in the coming week. Lord Ganesh is the God of wisdom and learning. I pray that the elephant God will give all members the encouragement to continue their learning and give wisdom to those in power to enact laws that are fair!
With warm regards,
Pradip K. Thanawala, CA
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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 254-256 of CA. Journal for August, 2012. Some of these issues are as under:

(i) Issue:
Can a member in practice indicate in a book or an article, authored/contributed/ published by him, his association with any firm of Chartered Accountants?

As per Para (c) under Clause (6) of Part 1 of First Schedule to the Act as appearing in the Code of Ethics, 2009, a member is not permitted to indicate in a book or an article, authored/contributed/ published by him, the association with any firm of Chartered Accountants.

(ii) Issue:

Whether the word “Chartered Accountants” and name of city after the name of the members of the Institute be mentioned in the articles contributed by such members and published in the Institute’s Journal?

Under Clause (6) of Part 1 of the First Schedule to the Act, there is no restriction in the Code of Ethics for mentioning the word “Chartered Accountant” and also the name of city in an article contributed by a member in the Institute’s Journal as well as in newspapers and other periodicals.

(iii) Issue:

Whether sponsorship or prizes can be instituted in the name of Chartered Accountants or a firm of Chartered Accountants?

An individual Chartered Accountant or a 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 the First Schedule regarding advertisement and publicity is complied with.

(iv) Issue:
Can a Chartered Accountants firm give advertisement in relation to Silver, Diamond, Platinum or Centenary celebration of the firm?

While considering the implications of Clause (6) & (7) of Part 1 of the First Schedule of the Act in relation to such advertisements and also the need of interpersonal socialisation/relationship of the members through such get-together occasions, the advertisement for Silver, Diamond, Platinum and Centenary celebrations of the firms has been permitted to be published in any newspaper or in the newsletters.

(v) Issue:
A Chartered Accountants firm issued circulars to the non-clients that a Chartered Accountant who was the former partner in-charge of Taxation of one of the largest accounting firms of the world, had joined them as partner. Can they do it?

Clause (6) of Part 1 of the First Schedule to the Act prohibits solicitation of clients or performing work either directly or indirectly by circular, advertisement, personal communication or interview or by any “other means”. The issuance of circular to persons who are not clients, but may likely require services of a chartered accountant would be tantamount to advertisement, since it is solicitation of professional work by making roving enquiries. As per Clause (7) of Part 1 of the First Schedule to the Act, the usage of the words “one of the largest accounting firms of the World” and the specification of specialisation in “taxation” would also amount to advertisement and, thus, constitute professional misconduct.

2. EAC Opinion
Accounting Treatment of Liability for Unbilled Work-in-Progress in the Books of Executing Agency.

Facts:
A government company was set up as a special purpose vehicle for executing the infrastructure development and related projects in a State with quality and speed. The projects are identified by the Government and these projects are entrusted for execution to the company.

For executing the projects, the company engages the services of various contractors who are required to use their own men, materials and machines and the company does not supply any of these. The company has also clarified that it has not received the projects from the Government in the capacity of a contractor, rather, the Government has entrusted the work in the capacity of executing agency through Memorandum of Understanding (MOU). The projects have not been sub-contracted by the company. Further, as per the company, the ownership interest relating to contract assets and liabilities vest with the Government.

The company is not raising any bill for the work executed by it. The company is charging development fees at certain pre-fixed percentage of the development expenditure incurred, to the Government towards the services rendered.

As per agreed terms of contract, the contractor raises running account (R.A.) bills on the company for the work done by him and final bill is raised after completion of the project. The billing period generally falls into two or more financial years.

The company is providing for the liability towards work executed upto the financial year end based on bills received till the finalisation of accounts. However, on the basis of advice from the Comptroller and Auditor General of India (CAG), the company started providing for work executed till financial year end towards the work for which bills have not been received on the basis of estimated value worked out by the engineering department of the company.

Query:
On the above facts, the company has sought the opinion of the Expert Advisory Committee as to whether or not the company should recognise liability in respect of unbilled work-in-progress.

Opinion:
The Committee notes from the Facts of the Case that the company in this case is acting merely as an execution agency of the Government, for which it is getting a development fee for rendering its services. The Committee further notes that the terms ‘Assets’ and ‘Liabilities’ are defined in paragraphs 49(a) and 49(b) respectively of the ‘Framework for the Preparation and Presentation of Financial Statements’.

After considering the said paragraphs, the Committee notes that in this case, the future economic benefits from the project assets are not expected to flow to the company. On completion of the project, the assets would be taken over by the Government. Further, the Committee notes from the MOU between the company and the Government that the project assets are not funded by the company. In substance, they are funded by the Government. Accordingly, the liabilities which arise during the transactions are those of the Government and not that of the company. Thus, all the significant risks and rewards relating to the ownership of project assets and liabilities vest with the Government. In so far as the company is concerned, the Committee is of the view that the project assets and project liabilities do not meet the definitions of “Assets and Liability” respectively and as such, the project assets and liabilities of the said business should not be recorded in the books of account of the company.

On the basis of the above, the Committee is of the view that the liability for work-in-progress and the corresponding asset, viz. the work-in-progress (billed or unbilled) in respect of the project, if any, should not be recognized in the books of account of the company.

[Pl. refer pages 287 to 289 of C. A. Journal of August, 2012]

3. Examination Results

(i) Results for CA Final Examination held in May, 2012, were declared in July, 2012. 16.38% candidates passed in Both Groups. 25.32% candidates passed in Group I and 29.62% passed in Group II. Abhishek Gupta (Kolkata), Divyang Bhandari (Chennai) and Shruti Sodhani (Bangalore) secured 1st , 2nd , and 3rd Rank respectively in the Final Examination.

(ii) Results for CPT examination held on 17-6-2012 have been declared. 37.56% of candidates passed in this examination. Girls have taken a lead over Boys by a margin of 2% i.e. 40.04% against 37.56%

(Refer Page 238 of CA Journal of August, 2012.)

4.    Elections to Regional and Central Council

The next elections to the Central Council and Regional Councils of ICAI are scheduled to be held on Friday, 7th December and Saturday, 8th December, 2012 in cities having more than 2,500 Members. In other places, the elections will be held on Saturday, 8th December, 2012. Members from Mumbai, Kolkata and New Delhi, where there are more than one polling booth, have option to select the booth of their choice. For this purpose, they have to exercise option in writing before the specified date. Full details about the procedure for elections is hosted on ICAI website www.icai.org (Refer Page 362 of CA Journal of August, 2012).

5.    ICAI News

(Note : Page Nos. given below are from CA Journal of August, 2012)

(i)    New ICAI Publications

(a)    Compendium of Accounting Standards (Up dated as on 1-7-2012) (P. 376)

(b)    Technical Guide on Internal Audit of Infrastructure Industry (P. 377)

(c)    Technical  Guide  on  Internal  Audit  of Not-for-profit Organisation ) (P. 377)

(d)    Technical Guide on Internal Audit of Mining and Extractive Industry (P. 378)

(ii)    Annual Membership Fees

Annual Membership Fees for 2012-13 can be paid on or before 30-9-2012 (P. 387)

(iii)    Certificate Courses

Members can take advantage of Certificate Courses conducted by ICAI, including those on Indirect Taxes, Enterprise Risk Management, Concurrent Audit of Banks, Internal Audit, Master in Business Finance, International Taxation, Forensic Accounting & Fraud Detection using IT & CAATs and International Financial Reporting Standards. Interested members must consult ICAI website for the list of the complete courses available. Many post-qualification courses are available to promote and enhance members’ career prospects. List of these courses include Information Systems Audit (ISA), CPE Course on Computer Accounting and Auditing Techniques (CAAT), Diploma in Insurance and Risk Management (DIRM), etc.: for complete list of such courses, members must refer to ICAI website (Page 250).


(iv)    International Assignments

Members interested in international assisnments can take advantage of the existing memorandums of understanding (MoUs), mutual recognition agree-ment (MRAs), and joint declarations of ICAI with international institutions. The list is available on the ICAI website. At present, there is an MRA with The Canadian Institute of Chartered Accountants (CICA), CPA Australia and CPA Ireland. ICAI has MoUs with The Institute of Chartered Accountants in Australia (ICAA), The Institute of Chartered Accountants in England and Wales (ICAEW), Higher Colleges Of Technology, Ministry Of Higher Education And Scientific Research, UAE, and University of Djbouti. ICAI has signed a joint declaration with the Bahrain Institute of Banking and Finance and a License Agreement with ISACA (Page 250).

FROM THE PRESIDENT

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Dear Members,

Kudos, to our young TEAM INDIA for lifting the ICC Under 19 Cricket World Cup. As of date, India holds both the Senior and Junior O.D.I. World Cup titles. A proud moment for every Indian.

The months of August and September are festival months. Last month, we saw different festivals being celebrated all across the country. Rakshabandhan, Janmashtami, Nowruz, Ramzan Id, and Paryushan were celebrated with the same zest. This diversity of culture is one thing of which we are proud of. These festivals were celebrated by distinct religious groups, while Independence day was celebrated by one and all.

With Ganesh Chaturthi less than a fortnight away, millions of devotees of the elephant god are eager to celebrate the 11 day long festival, which is observed with great fervour. I pray to Lord Ganesha to shower his blessings on all, to overcome the hectic Audit season without any stress.

On the Society front, I am happy to share with you that the Indirect Tax and Allied Laws Committee of BCAS had made a timely representation to the Government of Maharashtra, on the most debated and controversial issue of VAT Liability on builders and developers, on the sale of Flats in construction buildings. This tax affects a large number of flat purchasers across the state. In response to the said representation, the office of the Commissioner of Sales Tax, has released FAQ which would be of great help.

Last month, we had various programmes like seminars and lecture meetings on varied topics of current interest, and the ITF Conference at Goa. I, on behalf of the Society, am grateful to all those who contributed to the success of these events. The enthusiastic participation of members motivates us to plan more programmes. I would request you all to give your suggestions and feedback, which will help us to serve you better and give what you desire.

In this communiqué, I would like to express my thoughts on issues related to our youth, in general and to those in our CA fraternity in particular. The idea arose when I read an article last month about United Nations’ International Youth Day (IYD) which is celebrated worldwide on 12th August.

Just as other awareness days, it is an awareness day meant as an opportunity for the Government and others to draw attention to youth issues worldwide, and to develop and engage in partnership with and for the youth. Many activities and events take place around the world on IYD to promote the benefits that young people bring to the world.

Talking about our Youth, we have pretty amazing statistics. 51% of Indians are less than 25 years of age. Recently, the Indian Government drafted a proposal to cap the age of ‘youth’ at 30 – scaling it down from previous limit of 35.

Young people represent a growing class, that is yearning to have its voices heard and make its presence felt. Today, the feeling is that we have failed to provide young people our constant support, and the opportunity to realise their basic aspirations. Their growth is hampered by the problems we all face, from security issues and the economy to changes in governments and society.

We have all witnessed, over the last few years, that the youth are shaping the political landscape in other countries. It has been seen that young people are driving innovations, and economic and social entrepreneurship in every region of the world. I believe that the best solutions to our problems will come from supporting and harnessing the energy and creativity of our youth.

Today, everyone sees in the youth a lot of talent and innovative minds. At the same time we do feel that the attitude of the Youth constantly harp on the line – if it directly doesn’t affect our life, it’s not our problem.

So the challenge before us is to find out : What does the young Indian care about the most ??

Coming to the Youth in our Profession, as per the latest statistics, as of April 2012, ICAI has more than 192,000 registered members, out of which around 53% are below the age of 35, and around 12% in the age group of 35-40. Further, the number of youths wanting to take up CA is increasing as never before and we have about 10 lakh CA students.

Hon’ble Prime Minister Mr Manmohan Singh recently said, “An Indian CA is recognised worldwide as being among the best and the brightest in the profession, and I sincerely hope the best is yet to come.”

The young CAs have a distinct advantage today. Almost all the major laws where CAs work (in Industry or practice) are changing substantially , viz Ind AS( IFRS), Service Tax, Companies Bill, Direct Tax Code , Goods and Service Tax. The older CAs have issues of time, as also unlearning what they have learnt and practised for number of years. New CAs will not be carrying the same burden viz., they will have time to learn the new changes and will also have an open mind to accept the same. So, together we need to work towards developing the necessary knowledge, insights, network & commitment to take advantage of these opportunities. Thus, the world of young CA is expanding its horizon.

At the same time, we see that young Chartered Accountants today face pressing challenges such as high level of competition, placements, etc on account of recession in industry, and to some extent because of Government policy paralysis. The only soothing factor is that we CAs are better off than others.

The other issue is that a majority of our young CAs prefer to work in the industry rather than to be in practice. They also shy away from taking up responsibilities and involve themselves in giving their much needed services to voluntary bodies.

It is incumbent on the seniors in profession – to mentor and to cultivate the next generation. It is only through the guidance and support that we can equip young people with the skills, resources, and networks they need, while also empowering them to be agents of change in our profession, and in turn building our nation.

We should thus stand with young CAs everywhere, so as to work to build a brighter future together. For that, a majority of us have to come on board and contribute in developing these young creative minds.

I firmly believe that the full potential of these young CAs has to be tapped and constantly be supported by the experienced ones.

Let us attempt to discover ways to make them more actively involved in making a positive contribution to our noble profession.

I would end by an Inspirational Quote by Swami Vivekanand, that our youth should remember :

“Struggle hard to get money, but don’t get attached to it”.

With warm regards
Deepak R. Shah

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PART C: Information on & Around

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CAG SEEKS RTI ACCESS TO GOVT FILES::

The Comptroller and Auditor General (CAG) of India wants the Centre to grant to Right to information (RTI ) powers as it has been facing problems in securing details relevant to its audits of government finances and decision- making.

CAG Shashikant Sharma has written a letter of finance minister Arun Jaitley demanding that the federal auditor be given RTI powers to access information and a penal provision be included in the existing CAG’s Duties and Powers Act (DPC Act) to make it mandatory for furnishing of information in a time bound manner.

The federal auditor has issued a note on how information denial has been causing the problems.

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PART B: RTI Act, 2005

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THE WHISTLE BLOWERS PRO TECTION ACT, 2011:

The above Act received the assent of the President on the 9th May, 2014. The objectives of the Act are noted here under:

AN ACT to establish a mechanism to receive complaints relating to disclosure on any allegation of corruption or willful misuse of power or willful misuse of discretion against any public servant and to inquire or cause an inquiry into such disclosure and to provide adequate safeguards against victimisation of the person making such complaint and for matters connected therewith and incidental thereto.

Please note that in mentioning year 2011 in the title is not my or printing mistake. The fact is that the Bill was introduced in the Parliament in 2011. It took 4 years to finally become an Act. It may also be noted that though it is now an Act, it is not in operation because no rules and regulations are notified per section 27 of the Act. The said section reads:

” 27. The Competent Authority may, with previous approval of the Central Government or the State Government, as the case may be, by notification in the official Gazette, make regulations not inconsistent with the provisions of the Act and the rules made there under to provide for all matters for which provision is expedient for the purposes of giving effect to the provisions of this Act.”

It may also be noted that both the central and state Governments are authorised to make rules, The State Government is authorised to make regulations also.

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PART A: Decision Of CIC

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Section 19 (1) of the RTI ACT:
Vide an RTI application dated 15-05-2012 the appellant sought information on thirteen issues as contained in his RTI Application.

The first appeal was filed on 13-08-2012. As the desired information was not provided by the CPIO vide Order dated 14-08-2012, First Appellate Authority held that the Order of the CPIO is modification to this extent that the information pertaining to the undersigned is already available in public domain at SI. No. 183 of the Civil List, 2012.

Decision
It is to be seen here that the appellant, vide his RTI Application dated 15-05-2012, sought some information from the respondents on 13 issues. During the hearing of the appeal it was submitted by Sh. Harinder Dhingra, appellant that he had not been provided the required information on any issues of his RTI application dated 15- 05-2012. However, it was rebutted by the respondents by stating that the required information, as sought for, was provided to the appellant vide their letter dated 06-07- 2012. It was further submitted by the appellant that his First Appeal was decided by the same officer, in respect of whom, the information was sought and it is against the Law.

Being aggrieved by the aforesaid response, First Appeal was filed by the appellant on 13-07-2012 before the FAA (Sh. Arun Kumar Addl, Commissioner (IGI) Airport, T-3 New Delhi 37), who vide his order dated 14-08-2012, upheld the decision of CPIO. Hence, a Second Appeal was preferred before this Commission.

On careful perusal of the record, it was revealed that the appellant sought some information in respect of Sh. Arun Kumar, Addl. Commission (ING), who decided the First Appeal. It has also been corroborated by the Sh. Arun Kumar, Asstt. Commissioner & CPIO, Sh. Dalveer Solanki, Asstt. Commissioner & CPIO, present before the Commission for making the submissions on behalf of the respondents, in the case.

It is a well settled position in the eyes of Law that there should be no judge of his own cause. This is one of the principles of natural justice and no one should violate the same.

Even the Hon. Judges of the High Court & Supreme Court take care of this Rule while deciding the cases. In the present case, it is now admitted fact that the person against whom the information was sought became a First Appellate Authority and decided his own case i.e. as to whether information in respect of himself is to be provided or not to the appellant.

Thus, the First Appellate Authority (Sh. Arun Kumar) violated the principles of natural justice. It is immaterial whether he has decided the case rightly or wrongly.

In view of the above, the order passed by FAA is not legally tenable and deserves to be quashed and set aside. Therefore, it is quashed accordingly. Thus, the case is remanded back to the respondents with a direction to put up the case to another FAA (to be nominated by the head of the department in case Sh. Arun Kumar is still acting as FAA ) for its disposal in accordance to the provisions of Law, within 30 days from the date of receipt of this order under intimation to this Commission.

(Harinder Dhingra vs. O/o the Addl. Commissioner of Custom, IGI Airport, Terminal 3, New Delhi, File No. CIC/ SS/A/2012/003238/KY decided on 02-04-2014. Citation: RTIR II (2014) 238 (CIC)

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From published accounts

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Section A:
Disclosures in quarterly results (Q1 of FY 2014-15) regarding adoption of revised norms for depreciation as per Schedule II of Companies Act, 2013

Compilers’ Note:
The Companies Act, 2013 has, effective 1st April 2014, made it mandatory to apply the revised norms of depreciation as per Schedule II to the Act. Schedule II requires re-assessment of useful life of the tangible fixed assets of a company vis-à-vis the useful life mentioned by the Schedule as well as requires depreciation to be provided on separate components of fixed assets based on the components individual useful life.

Given below are some diverse practices followed by listed companies in their unaudited results (which have been subjected to limited review by the statutory auditors) for the quarter ended 30th June 2014 for calculation of depreciation as per Schedule II. The disclosures are as submitted by the respective companies to the stock exchanges.

Bajaj Auto Limited:
Consequent to the enactment of the Companies Act, 2013 (the Act) and its applicability for accounting periods commencing after 1st April 2014, the Company has reworked depreciation with reference to the estimated economic lives of fixed assets prescribed by Schedule II to the Act or actual useful life of assets, whichever is lower. In case of any asset whose life has completed as above, the carrying value, net of residual value, as at st April 2014 has been adjusted to the General Reserve and in other cases the carrying value has been depreciated over the remaining of the revised life of the assets and recognized in the Statement of Profit and Loss.

As a result the charge for depreciation is higher by Rs.16 crore for the quarter ended 30th June 2014.

Century Textiles & Industries Limited
In accordance with the provisions of the Companies Act 2013, effective from 1st April, 2014, the Company has reassessed the remaining useful lives of its fixed assets. As a consequence of such reassessment, the charge for depreciation for the period is lower than the previously applied rates by Rs. 2,822 lakh, correspondingly as the transitional impact of Rs. 2,234 lakh (net of deferred tax Rs.1,151 lakh) has been adjusted to retained earnings.

TVS Motor Company Limited
During the quarter ended 30th June 2014, in accordance with Part A of Schedule II to the Companies Act 2013, the Management, based on Chartered Engineer’s technical evaluation, has reassessed the remaining useful life of assets with effect from 1st April 2014. As a result of the above, depreciation is higher by Rs. 0.71 crore for the quarter ended 30th June 2014. For assets that had completed their useful life as on 1st April 2014, the net residual value of Rs. 2.74 crore has been adjusted to Reserves.

Oberoi Realty Ltd.
The useful life of fixed assets has been revised in accordance with Schedule II to the Companies Act, 2013. The impact of change in useful life of fixed assets on depreciation expense for the quarter amounts to Rs. 323.45 lakh and on opening balance of general reserve amounts to Rs. 33.50 lakh (net of deferred tax).

Reliance Infrastructure Ltd.
During the quarter, the useful life of the fixed assets other than in respect of Electricity business has been revised in accordance with Part C of Schedule II to the Companies Act, 2013. Accordingly depreciation expense for the quarter ended 30th June, 2014 is higher by Rs. 3.88 crore. Similarly, in case of assets whose life has been completed as on 31st March, 2014 the carrying value (net of residual value) of those assets amounting to Rs. 4.75 crore has been debited to General Reserve.

Exide Industries Ltd.
Effective from 1st April, 2014, the Company has charged depreciation based on the revised remaining useful life of the assets as per the requirement of Schedule II of the Companies Act, 2013. Due to the above, depreciation charge for the quarter ended 30th June, 2014 is higher by Rs. 0.55 crore. Further based on transitional provision provided in Note 7(b) of Schedule II, an amount of Rs. 2.41 crore (net of deferred tax) has been adjusted with retained earnings.

PI Industries Ltd.
The useful lives of fixed assets have been revised in accordance with the Schedule II to the Companies Act, 2013 which is applicable from accounting periods commencing on or after 1st April 2014. Accordingly, an amount of Rs. 3.86 crore (net of deferred tax) representing assets beyond their useful life as of 1st April 2014 has been charged to General Reserve and in respect of the remaining assets, an additional depreciation amounting to Rs. 1.55 crore has been charged to the Profit and Loss statement for the current quarter based on residual useful life. Further, in respect of plant and machinery, management is evaluating useful life of certain components, impact of which, if any, would be accounted for in subsequent quarter(s).

Tata Coffee Ltd.
Pending detailed assessment of the useful life and clarification from the Ministry of Corporate Affairs, the depreciation charge for the quarter has been provided as in earlier period. Necessary effect, if required, will be given in the subsequent quarters.

From Limited Review Report
Without qualifying our report, we draw attention to: Note regarding depreciation being provided based on existing method pending evaluation of estimated useful life as required under Schedule II of the Companies Act, 2013.

Thermax Ltd.
Depreciation for the quarter has been computed based on the Company’s evaluation of useful lives of its fixed assets (including significant components thereof, if any) which in certain cases are different from those mentioned in Schedule II to the Companies Act, 2013. The auditors have qualified their report in this regard as in their opinion it is not permissible to have useful lives longer than specified for same class of assets in Schedule II.

From Limited Review Report Basis of Qualified Conclusion
Depreciation for the quarter has been computed based on company’s internal evaluation of useful lives of its fixed assets (including significant components thereof, if any) which in certain cases are more than those mentioned in Schedule II to the Companies Act, 2013. In our opinion useful lives of assets cannot be longer than those indicated in Schedule II. The impact of this on depreciation and profit and loss for the quarter under review has not been computed by the company hence we are unable to comment on the same.

Tata Steel Ltd.
During the quarter, the company and some of its subsidiaries have revised depreciation rate on certain fixed assets as per the useful life specified in the Companies Act, 2013 or re-assessed by the company based on technical evaluation. Accordingly, depreciation of Rs. 136.82 crs (net of deferred tax Rs. 69.64 crore) [Rs. 129.01 crore (net of deferred tax Rs. 66.43 crore) in the stand-alone] on account of assets whose useful life is already exhausted as on 1st April 2014 has been adjusted to retained earnings. Had there been no change in useful life of assets, depreciation for the quarter would have been lower by Rs. 22.74 crore (Rs. 22.33 crore in the stand-alone).

Tata consultancy services ltd.
The group has revised its policy of providing depreciation on     fixed     assets     effective     1st     April,     2014.     Depreciation    is now provided on straight line basis for all assets as against the policy of providing on written down value basis for some assets and straight line basis for others. Further, the remaining useful life has also been revised wherever appropriate based on evaluation.  The carrying amount as on 1st  april, 2014 is depreciated over the revised remaining useful life. as a result of these changes, the depreciation charge for the quarter ended 30th  june, 2014 is higher by rs. 6,063 lakh and the effect relating to the period prior to 1st april, 2014 is not credit of rs. 48,975 lakh (excluding deferred tax of rs. 11,890 lakh) which has been shown as an “exceptional  item’ in the statement    of    profit    and    loss.

Hindustan Petroleum Corporation Ltd.

Pending the determination of useful life and componentisation of assets, as required under schedule ii of the Companies act, 2013, the company has provided depreciation at the rates and in the manner as prescribed in the schedule XiV of the Companies act, 1956. The impact of     the     same     is     not     quantified     and    will     be     recognised     in    subsequent quarters. the PSU oil marketing Companies, have made representation to MCA for providing extension to comply with schedule  ii of the Companies act, 2013 by mandating application only for annual accounts for   2014-15 and not for quarterly accounts during 2014-15.

From Limited Review Report
As     stated     in     Note     No.     5     of     the     financial     results,     the    company has continued to provide depreciation at the rates and in the manner as prescribed in the schedule XiV of the Companies act, 1956 pending determination of estimated useful life and componentisation of assets as required under  schedule  ii to the Companies  act 2013. As informed to us, the company has also made representation to the  ministry of Corporate  affairs for providing extension to comply with requirements schedule ii of the Companies act, 2013. The impact of this matter on    depreciation    and    profit    for    the    quarter    under    review,    is not    quantified.    Hence,    we    are    unable    to    comment    on    the    same. Based on our review conducted as above, except for the effects of the matter described in the above paragraph, …

Godrej Industries Ltd
Consequent to the enactment of the Companies  act, 2013, (the act) and its applicability for accounting periods commencing on or after 1st april, 2014, the Company has    adopted     the    estimated    useful     life    of    fixed    assets    as stipulated by schedule ii to the act, except in the case of plant and machinery where the Company, based on the condition of the plants, regular maintenance schedule, material of construction and past experience, has considered useful life of plant and machinery as 30 years instead of 20 years useful life as prescribed in schedule ii of the act.

Accordingly, the Company has re-worked depreciation with    reference    to    the    estimated    useful    lives    of    fixed    assets as prescribed by schedule ii to the act. in case of assets whose useful life has been completed based on such estimates, the carrying value, net of residual value and taxes, as at 1st april, 2014, amounting to rs. 3.67 crore has been adjusted in the opening balance of retained earnings and in other cases the carrying value is being depreciated over the remaining useful life of the assets and     recognised     in     the    Statement    of    Profit    and    Loss.    As a result of the above mentioned changes, the charge for depreciation is lower by rs. 3.07 crore for the quarter ended 30th june, 2014.

ICAI and its members

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1 Disciplinary cases:

ICAI publication on ‘Disciplinary Cases’ gives decisions by the Disciplinary Committee. Some of these decisions are given below. Names of members are not given for the sake of confidentiality. Page Numbers given below are from the Publication Vol.I – (Part II)

(i) Re. SRK:
If this case the CIT, Mumbai, had written to the Institute that the member had conducted Tax Audit u/s. 44 AB of an assessee for A/Y: 2004-05. In this case, the assessee had claimed Rs. 3.74 crore as interest paid to Bank on Loan. Out of this Rs.3.10 crore was not paid. According to CIT this was not allowable u/s. 43B. This fact was not pointed out by the member and this amounted to gross negligence on the part of the member.

The defence of the member was that section 43B(e) of the Income tax Act was amended w.e.f. 2004 -05 whereby the interest to Bank on loans and advances, if not paid by due date, was not allowed. Prior to this amendment the provision applied to interest on term loan from bank. Moreover, the assessee had brought forward losses of Rs.10 crore and therefore there was no loss to revenue. The member pleaded that it was only due to oversight that he failed to notice this amendment and therefore failed to give effect to it in the Tax Audit Report.

The DC has held that A.Y 2004-05 was the first year wherein the said amendment was made applicable and the member should have been careful in giving effect to it. Further, due to past losses, there was no loss of revenue by this non-disclosure. The D.C. was of the view that there was negligence on the part of the member but there was no mala fide intention on the part of the member. On this basis, the member was held to be “Not Guilty” of any Professional misconduct (P. 144 – 147)

(ii) Re. TRM: In this case, the outgoing auditor of a co-operative Bank had complained that the Member had accepted the audit for the subsequent year without first communicating with him and that the Bank had not paid his fees. The defence of the member was as under.
(a) T he appointment was made through empanelment with Registrar of Co-operative Dept and not by the Bank.
(b) T he communication about the appointment was made by a letter to the previous auditor which was sent through Courier. This letter was not by Regd. Post or Speed Post but there was evidence that it was received by the previous auditor.
(c) A s regards the outstanding fees the member was informed by the Bank that the audit fees fixed by the Registrar were only Rs. 9,000/- but the previous auditor had raised bill of over Rs. 66,000/-. Hence, this was in dispute and therefore not paid by the Bank.

The DC has held as under:

(a) T here was evidence to the effect that the member had sent communication about his appointment to the previous auditor and, therefore, this charge was not proved.
(b) A s regards the Fees it was proved that there was dispute with the Bank. It was also proved that subsequently the undisputed amount of audit fees of Rs. 9,000/- was paid by the Bank to the previous auditor.

On the basis of the above finding, the D.C. held that the member was not guilty of professional misconduct (P 167 – 172).

2 Financial reporting review board (frrb):

ICAI has published a “Study on compliance of Financial Requirements”. Some of the observations from this publication are given below.

(i) Disclosure about Prior Period Items: In some published Annual Reports disclosure about prior period items is made as under.

(a) Prior period expenses and income are adjusted in respective heads of expenses and income in the Profit & Loss A/c.
(b) P rior period expenses are shown under the head of selling and administrative expenses. (c) P rior period adjustment (net) is shown in the P & L A/c.
(d) P rior period expenses are shown under the head of other expenses.
(e) D epreciation charged during the year includes an amount of depreciation pertaining to previous year.

Observation of FRRB:

The disclosures are contrary to Para 15 of AS.5. Under AS-5, the nature of prior period items is required to be disclosed in the P & L in the schedules or in the Notes. Clubbing the prior period adjustments in their respective heads does not enable the reader to understand the effect of such adjustments on the current profit or loss which is against the requirements of AS-5.

(ii) Disclosure of Depreciation Policy:
Annual Report of one of the Companies stated that “Depreciation Rates on some of the Fixed Assets have been revised so as to keep them as per the requirements of Schedule XIV of the Companies Act”.

Observation of FRRB:

When Depreciation Rates are revised during the year, it will lead to change in Accounting Estimate as provided in Para 27 of AS-5. This may result in provision of depreciation which may be of higher or lower amount then that of provision at pre-revised rates. This will have material impact on the finance statements. In this particular case, the company has not complied with Para 27 of AS-5. The Company should have disclosed the aggregate effect of the revision in depreciation rates on the Profit/Loss for the year.

3 Accounting Treatment of Expenditure incurred on Stamp Duty and Registration Fees for Increase in Authorised Capital:

(Page 249 – 253)

A company was incorporated under the Companies Act, 1956 as a private Limited company. The company is registered as a non-banking financial company (NBFC) (non deposit accepting) as defined u/s. 45-1A of the Reserve Bank of India Act, 1934 (RBI). The company is primarily engaged in the business of lending for purchase of equipments.

The Company’s Authorised Share Capital as on 31st March, 2013 was Rs.7,00,00,000/- The Company received share application money of Rs. 55,62,55,000/-. To be able to allot further equity shares, the shareholders of the company, have approved increase in authorised share capital to Rs. 75,00,00,000/-. The company has incurred an expenditure of Rs. 47,60,000 /-(Rs. 34,00,000 towards stamp duty and Rs.13,60,000 towards registration fees paid to the Registrar of Companies) for the said increase in authorised share capital.

Post increase in authorised capital, the Board of Directors of the company has passed a resolution for allotment of 5,56,25,500 equity shares of the company of Rs. 10/- each at par amounting to Rs. 55,62,55,000/-.

The issue relates to accounting treatment of the expenditure of Rs. 47,60,000/- incurred by the company for increase in authorised capital.

Query:
On the basis of the above, opinion of the EAC is sought by the company, whether the company can treat the whole of the expenditure incurred on increase in authorised capital as ‘share issue expenses’?

EAC Opinion:
The Committee noted from the Facts of the Case that the company has received share application money in excess of the authorised share capital and subsequently increased its authorised share capital and made allotment of shares. The Committee notes that the query raised is in relation to expenses (stamp duty and registration fee) incurred for increase in authorised share capital of the company.

After considering paragraph 5 of accounting standard (AS) 26  ‘intangible assets’ and Guidance note on terms used  in  financial  statements,  the  Committee  is  of  the view that increase in authorised share capital is an independent process which does not necessarily lead to issue of shares. The need to increase the authorised capital and to incur expenses for increasing the same would not have arisen had the additional allotment of shares was within the limits of existing authorised capital. Accordingly, the Committee is of the view that the expenses incurred on increase in authorised share capital are distinct and separate from the expenses incurred on share issue. additionally, the Committee is of the view that accounting depends on the nature of expense and the fact that the share application money was received before increase in authorised share capital will not change the nature of expense. further, increase in authorised share capital does not represent issue of additional share capital and only sets a limit for the paid up capital of a company at any given point of time. Accordingly, the Committee is of the view that the expenses incurred on increasing the authorised share capital cannot be termed as share issue expenses

Further considering the paragraph 6.2 of as 26, the Committee notes that if an expenditure does not result into acquisition of an asset, it should be recognised as an expense as and when incurred. the Committee also notes that the amount spent towards increase in authorised share capital does not give rise to any resource controlled by the enterprise. in fact, such expenses are only permitting the company to enhance the limit for the paid up capital of the company which does not ensure any flow of funds to the company. Accordingly, it does not meet the definition of an asset. Thus, the amount aggregating to rs. 47,60,000/- incurred towards stamp duty and fees paid to the registrar of  Companies should be recognised as expense in the statement of profit and loss as per the requirements of paragraph 56 of as26.

[Pl. Refer page nos. 249 to 253 of C. A. Journal – August,2014]

4    ICAI News
Note: (page numbers given below are from C.A. journal of august, 2014)

(i)    Final C.A Examination (May 2014) results (TOI 9.8.2014)
final   C.A.,   may   2014,   examination   results   were declared on 8th august 2014. a comparative chart of pass percentage for last 3 examinations is as under.

In may, 2014, examination out of 42,533 students who appeared for the examination in both Groups only 3100 passed. Names of first three Rank Holders are as under:

Group

may, 2014

november,
2013

may, 2013

Both Groups

7.29

3.11

10.03

Group I

13.50

5.67

13.79

Group II

10.66

7.35

18.65

First        : Shri sanjay nawandhar (jaipur)
Second  : Shri Kunal jethani (jodhpur)
Third    : Ms. harsha Bhatted (pune)

Our Congratulations and Best Wishes to each of the above candidates.

(ii)    New Publication of ICAI(278)
Technical guide on internal audit of it software industry.

(iii)    Ind AS Implementation (P.147)
The  president  in  his  presidential  message  has  stated that the finance minister has proposed in paragraph 128 of the Budget speech for the year 2014-15 that there is urgent need to converge current indian accounting standards  with  international  financial  reporting  standards (IFRS) and that the new indian accounting standards (ind as) converged with ifrs shall be adopted by the Indian Companies from the financial year 2015- 16  voluntarily  and  from  the  financial  year  2016-17 on mandatory basis.

Company Law

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Full Version of the Circulars/Notifications can be accessed at http://www.mca.gov.in

1. Company Law Settlement Scheme, 2014
The
Ministry of Corporate Affairs, vide General Circular No. 34/2014 dated
12-08-2014, has launched the Company Law Settlement Scheme, 2014
(CLSS-2014), to enable companies who have failed to file annual
statutory documents (Annual Return and Financial Statements) an
opportunity to file them and enable them:

1. To make their default good by filing belated documents at a reduced additional fee of 25% of actual fees.

2. Avoid penal action, especially disqualification of the Directors u/s. 164(2) of Companies Act, 2013.

3.
I nactive companies can get their companies declared as ‘dormant
Company’ u/s. 455 of the Act by completing the filing at reduced penalty
and get themselves declared as ‘Dormant Company’ by filing e-form MSC- 1
at 25% of the fee for the form or apply for strike off by filing e-form
FTE at 25% of fee payable.

4. Grants immunity from prosecution
for delayed filing. Under the Companies Act, 2013 the quantum of
punishment has been enhanced for repeated defaults in section 451.

The Scheme is in force from 15th August, 2014 to 15th October, 2014.

CLSS shall not apply to the filing of belated documents other than the following:

1. Form 20B-Form for filing annual return by a company having share capital.

2. F orm 21A-Particulars of Annual Return for the company not having share capital.

3. F orm 23AC, 23ACA, 23AC-XBRL and 23ACA-XBRLForms for filing Balance Sheet and Profit & Loss account.

4. Form 66-Form for submission of Compliance Certificate with the Registrar.

5. F orm 23B-Form for intimation for Appointment of Auditors.

Further, CLSS shall not apply in the following cases:
1.
Companies against which action for striking off the name under s/s. (5)
of section 560 of Companies Act, 1956 has already been initiated by the
Registrar of Companies; or

2. Where any application has already
been filed by the companies for action of striking off name from the
Register of Companies; or

3. Where applications have been filed for obtaining Dormant status under section 455 of the Companies Act, 2013;

4. Vanishing companies.

Companies
need to file an application in the e-Form CLSS 2014 to seek immunity
for filing belated documents. After granting the immunity, the Registrar
concerned shall withdraw the prosecution(s) pending, if any, before the
concerned court.

2. Clarification With Regard Section 139 (5) and 139 (7) of Companies Act, 2013

The
Ministry of Corporate Affairs has vide General Circular No. 33/2014
dated 31st July, 2014 issued clarification regarding appointment of
Auditors to deemed Government Companies as no specific provisions of
deemed Government Companies are included in the New Act. It is clarified
that the new Act does not alter the position with regard to audit of
such deemed government Companies through C & AG and thus such
companies are covered under s/s. (5) and (7) of section 139 of the new
act.

Further, the Shareholders Agreement and the Articles of
Association envisaging control, are to be taken into account to decide
whether an individual Company other than those refereed above is covered
under the provisions of s/s. (5) and (7) of section 139 of the Act.
Also, clarified that where a newly incorporated Company requires the
appointment of Auditor by the C & AG, it is the primary
responsibility of the Company to inform the same to the C & AG and
to share such intimation to the relevant Government so that the
Government can also send a suitable request to the C & AG.

3. Clarification On Transitional Period For Resolutions Passed Under Companies Act, 1956

The
Ministry of Corporate Affairs has vide General Circular No. 32/2014
dated 23rd July, 2014, clarified that resolution approved or passed by
Companies under the relevant applicable provisions of the old Act during
the period 1st September, 2013 to 31st March, 2014, can be implemented,
in accordance with the Old Act, notwithstanding the repeal of the
relevant provision subject to the conditions:

(a) that the implementation of the resolution actually commenced before 1st April, 2014; and
(b)
that this transitional arrangement will be available upto expiry of one
year from the passing of the resolution or 6 months from the
commencement of the corresponding provision in the New Act whichever is
later.

It is also clarified that any amendment to the resolution must be in accordance with the relevant provision of the New Act.

4. Companies (Meetings of Board and its Powers) Rules, 2014

The
Ministry of Corporate Affairs has vide notification dated 14th August,
2014, issued the Companies (Meetings of Board and its Powers) Second
Amendment Rules, 2014, in exercise of the powers conferred u/s. 173,
175, 177, 178, 179, 184, 185, 186, 187, 188, 189 and section 191 read
with section 469 of the Companies Act, 2013 (18 of 2013), which shall
come into force on the date of their publication in the Official
Gazette.

In the Companies (Meetings of Board and its Powers) Rules, 2014:

(1)
in Rule 3, in sub-Rule (6), the words and commas,“which shall be in
India,” shall be omitted whereby the scheduled venue of the Board
meeting through video conferencing or audio visual will be the place
where the recording takes place.

(2) (a) in Rule 4, (a) in sub-Rule (1), for the brackets, figure and word “(1) The,” the word “The” shall be substituted;

(b)
in Clause (iv), for the words “consideration of accounts,” the words
“consideration of financial statement including consolidated financial
statement, if any, to be approved by the Board under s/s. (1) of section
134 of the Act” shall be substituted, i.e, Audit Committee meetings for
consideration of accounts is to now read, the Audit Committee Meetings
for consideration of any financial statement including Consolidated
Financial Statement cannot be done through video conferencing.

(3) in Rule 15, for sub-Rule (3), the following sub-Rule shall be substituted, namely:-

“(3)
For the purposes of first proviso to s/s. (1) of section 188, except
with the prior approval of the company by a special resolution, a
company shall not enter into a transaction or transactions, where the
transaction or transactions to be entered into, –

a. as
contracts or arrangements with respect to clauses (a) to (e) of s/s. (1)
of section 188, with criteria as mentioned below –

i) sale,
purchase or supply of any goods or materials, directly or through
appointment of agent, exceeding ten per cent. of the turnover of the
company or rupees one hundred crore, whichever is lower, as mentioned in
Clause (a) and Clause (e) respectively of s/s. (1) of section 188;
ii)
selling or otherwise disposing of or buying property of any kind,
directly or through appointment of agent, exceeding ten per cent. of net
worth of the company or rupees one hundred crore, whichever is lower,
as mentioned in Clause (b) and Clause (e) respectively of s/s. (1) of
section 188;
iii) leasing of property of any kind exceeding ten per cent. of the net worth of the company or ten per cent. of
turnover of the company or rupees one hundred crore, whichever is
lower, as mentioned in Clause (c) of s/s. (1) of section 188;

iv)    availing or rendering of any services, directly or through appointment of agent, exceeding ten per cent. of the turnover of the company or rupees fifty crore, whichever is lower, as mentioned in Clause (d) and Clause (e) respectively of s/s. (1) of section 188:

Explanation- It is hereby clarified that the limits specified in sub-Clauses (i) to (iv) shall apply for transaction or transactions to be entered into either individually or taken together with the previous transactions during a financial year.

b.    is for appointment to any office or place of profit in the company, its subsidiary company or associate com- pany at a monthly remuneration exceeding two and half lakh rupees as mentioned in Clause (f) of s/s. (1) of section 188; or

c.    is for remuneration for underwriting the subscription of any securities or derivatives thereof, of the company exceeding one per cent of the net worth as mentioned in Clause (g) of s/s. (1) of section 188.

Explanation.-

(1)    the turnover or net Worth referred in the above sub- rules shall be computed on the basis of the audited Financial Statement of the preceding financial year.

(2)    in case of a wholly-owned subsidiary, the special reso- lution passed by the holding company shall be suf- ficient for the purpose of entering into the transactions between the wholly owned subsidiary and the holding company.

(3)    the explanatory statement to be annexed to the notice of a general meeting convened pursuant to section 101 shall contain the following particulars, namely:-
a.    name of the related party;
b.    name of the director or key managerial personnel who is related, if any;
c.    nature of relationship;
d.    nature, material terms, monetary value and particulars of the contract or arrangement;
e.    any  other  information  relevant  or  important   for the members to take a decision on the proposed resolution.”

5.    Second amendment to Companies (Management and administration) rules, 2014

The ministry of Corporate affairs has on 24th july, 2014 vide Gsr 537(e) amended the Companies (manage- ment and administration) rules, 2014 by insertion of the following:

i.    in rule 9 after sub-rule (3) – “provided that nothing contained in this rule shall apply in relation to a trust which is created, to set up a mutual fund or Venture Capital fund or such other fund as may be approved by SEBI.”
ii.    and in rule 13 the words “either value or volume of the shares “shall be and the explanation shall be omitted.
iii.    In Rule 23 (1) for the words “not less than five lakhs rupees,” the words “not more than five lakh rupees” substituted.
iv.    In rule 27, in sub-rule (1) and in the explanation, for the word “shall”, the word “may” shall be substituted.

6.    Addition to Schedule VII – of Companies act, 2013

The Central Government vide Notification dated 6th August, 2014, Gsr 568 (e) has made the following amendment to schedule Vii pertaining to Corporate social responsibility:

insertion of
“(xi) slum area development.

Explanation – for the purposes of this item, ‘slum area’ shall mean any area declared as such by the Central Government or any state Government or any other Com- petent authority under any law for the time being in force.”

7.    ‘Class of Companies “ for the purposes of Section 203 (1) of the Companies act, 2013

Vide Notification No. S O 1913(E) the Ministry of Corpo- rate Affairs has on 25th July, 2014 it has notified that public Companies having :

a)    paid up Capital of Rs. 100 crores or more; and
b)    annual turnover of Rs. 1,000 crores or more; and
c)    which are engaged in multiple businesses; and
d)    have appointed Chief Executive Officer for each such business shall be the ‘class of Companies’ for the purposes of section 203 (1) of the Companies act, 2013 which pertains to appointment of Key managerial personnel.

8. Companies (removal of Difficulties) Sixth Order, 2014

The ministry of Corporate affairs has vide s o 1894 (e) dated 24th july, 2014, issued the Companies (removal of Difficulties) Sixth Order, 2014. To overcome the difficulties arising, and resultant disharmonious interpretation of Clause 76 of section 2 pertaining to related party, due to absence of the word ‘relative’ in clause (iv), the Central Government has issued the said order and amended section 2 as follows:

“In Clause (76) in sub-Clause (iv) after the word ‘manager’ the word ‘or his relative’ shall be inserted.”

Direct Taxes

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84. New tax returns forms notified – Notification No.- 61/2015
[F.No.142/1/2015-TPL dated 29 July, 2015 – Income tax (Tenth amendment)
Rules, 2015

New forms FORM ITR-3, FORM ITR-4, FORM ITR-5, FORM ITR-6 and FORM ITR-7 have been notified.

85. Due date for filing Return of wealth extended – Circular No. 328 dated 27 July 2015

86.
CBDT has extended the ‘due date’ for filing Return of Income for
assessment year 2015-16 in respect of assesses falling under clause (c)
of explanation 2 of sub-section (1) of section 139 of the Income-tax Act
from 31.7.2015 to 31.8.2015. In view of the same, the ‘due date’ for
filing Return of wealth by such assesses for assessment year 2015-16
also stands extended from 31st July 2015 to 31st August 2015.

87.
Rules 114F, 114G and 114H inserted and Form 61B introduced in respect
of registration of persons, due diligence and maintenance of
information, for matters relating to statement of reportable accounts
-Notification No. 62 [S.O. 2155(E)] dated 7 August 2015 – Income-tax
(11th Amendment) Rules, 2015

88. Rule 126 inserted for providing
method for Computation of period of stay in India in case of seafarers –
Notification No. 70 dated 17 August 2015 – Income-tax (Twelfth
Amendment) Rules, 2015

89. Clarification on grant of
approval and exemption claim for income of universities and educational
institutions u/s. 10(23C)(iv) of the Act- Circular no 14/2015 dated 17
August 2015

CBDT has clarified on issues like scope of
inquiry while granting approval, necessity for registration u/s. 12AA
while seeking approval /claiming exemption u/s. 10(23C) (iv) of the Act,
generation of surplus out of gross receipts, collection of amounts
under different heads of fees from students and impact of extraordinary
powers of the Managing Trustees to appoint, remove or nominate other
trustees in this Circular.

levitra

Cancerous Corruption

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SIC Deepak Deshpande:
ACB raided State Information
Commissioner Deepak Deshpande, who had been appointed by Bhujbal after
he retired as PWD secretary. ACB found that he has one flat each in
Thane and Aurangabad and three in Pune. Deshpande also has four plots
and five hectares of land in Aurangabad, 1.53 kg. gold, 27 kg. silver,
investments of Rs.2.68 crore, 6,360 shares of companies and two cars.
ACB is yet to scan three bank accounts and four lockers. Sources said
the cabinet would advise removal of Deshpande from his post. When Mumbai
Mirror called Deshpande, he refused to comment.

He has since resigned from his post.

My
comments: If the RT I Information Commissioner, who is the instrument
for containing corruption turns out to be corrupt, it is a sad story.

Anti – Corruption Bureau:
The
number of corruption cases reported till April this year has risen. The
state’s Anti-Corruption Bureau registered a 23% hike in the number of
cases recorded in the first four months of 2015 as compared to 2014.

A
total of 479 offences were registered until April this year as compared
to 369 till April last year. Another 48 offences were registered in May
this year. A new trend witnessed in recent complaints is the rise in
the use of technology. Besides a helpline phone number, the
Anti-Corruption Bureau has also launched a mobile app and Facebook page
which have proved to be handy tools for the public to lodge complaints
and for the agency to nab offenders.

Within three months, the bureau’s Facebook page has been ‘liked’ by 24,478 people.

Director
General of Police (anti-corruption) Praveen Dixit said that their
Facebook page and helpline number 1064 have helped in nabbing corrupt
officials. “We hope to reach to even more people through our mobile
application which is becoming very popular especially with youngsters,”
said Dixit.

Until May this year, of the 527 cases registered, 50
pertained to disproportionate assets, and the bureau unearthed Rs.7.97
crore worth of assets acquired by public servants through illegal means,
of which assets valued at Rs.1.27 crore have been seized.

The
revenue department continues to lead the graft chart with 160 officials
caught in the first four months this year, followed by 142 from the
police department.

The bureau has also seen a sharp rise in the
conviction rate. This year the rate of conviction has also gone up to
50% as compared to last year, which was 22%.

An official from
the bureau said that the number of corruption cases was quite high in
the early part of the year. “Despite conducting awareness programmes in
government offices, corruption continues to plague various departments,”
said this official who asked not to be named.

CM Chandrababu Naidu:
The
Telangana Anti-Corruption Bureau (ACB) filed a charge sheet in the
cash-for-vote case identifying the person referred to as ‘Babu’, ‘Boss’
and ‘Naidu’ by the main accused as Andhra Pradesh chief minister
Chandrababu Naidu.

“We mentioned the name of Chandrababu Naidu
in the chargesheet after taking into consideration the details of
conversations of the accused and also the statement of complaint Elvis
Stephenson recorded by a magistrate u/s. 164 of the CrPC,” ACB special
public prosecutor Surendra Rao told TOI.

The ACB has narrated
how the accused in the case – Reddy, Sebastian, and Reddy’s aide, Udaya
Simha, and Sebastian’s friend, Jerusalem Mathaiah – held negotiations
with Stephenson to offer him with Rs. 5 crore in cash, of which Rs.50
lakh was delivered to Stephenson. The ACB recorded this cash delivery
with audio-visual equipment after Stephenson filed a formal complaint
about the allurements he was receiving from the TDP.

Can you believe? Yakub Memon in 2013 when he was in Central jail wrote an essay, in which the following lines were written:

“In
spite of a great Constitution, greed and corruption are posing a threat
to unity and India’s reputation as a civilised nation. People of India
need moral and spiritual cleansing to see that we do not succumb to the
evil of greed and corruption”.

Analysing the essay, a city
psychiatrist, who does not want to be named, said, “Fear of being hanged
cannot impair one’s basic intelligence. Yakub is well-educated.
Sometimes what you believe also reflects in what is said or written
spontaneously.”

Psychiatrist Dr. Sudhir Bhave said, “It may be a means to create an impression that he is indeed loyal to the country.”

Corruption in BMC:
The
Brihanmumbai Municipal Corporation (BMC), embarrassed by the spotlight
on it for all the wrong reasons as corrupt civic officials are routinely
trapped by the Anti-Corruption Bureau (ACB), has now made the
‘supervisory officer’ responsible, if more than one officer from their
department is caught.

The decision was taken after a meeting
held recently by municipal commissioner Ajoy Mehta with civic officials.
The commission, in a meeting told officials that when a citizen
approaches the civic body, he should be provided a reply within a time
limit. He said the direct supervisor should know what his staff is
doing. For instance, he said, the supervisor of the department issuing
birth certificates should know how many people have asked for a birth
certificate and how many were provided. If a certificate has not been
issued within a specific time limit, the supervisor should question the
concerned officers.

Complaint of corruption at ACB :
Over
64,000 corruption complaints were received by the Central Vigilance
Commission last year, a rise of 82 % than the preceding year.

The
Commission received 64,410 complaints, including 2,048 brought forward,
during 2014. “It is for the first time that the Commission had received
such a high number of corruption complaints,” a senior CVC official
said. Railways topped the list of government bodies with over 12,000
complaints of alleged corruption last year. It was trailed by 6,836
against bank officials, 3,572 against Delhi government employees and
3,468 against IT officials as per the annual report.

Out of
64,410 complaints received by the CVC, 36,115 were vague or
unverifiable, 758 were anonymous or pseudonymous and 24,012 were for
officials not under CVC.

There were 1,214 verifiable complaints
which were sent for inquiry or investigation to Chief Vigilance Officers
(CVOs), who act as distant arm of the CVC, and CBI.

Railways
topped the list of government organisations against whom maximum number
of complaints of alleged corruption – 12,776 – were received by the
CVOs, followed by 6,836 complaints against bank officials, 3,572 against
Delhi govt employees and 3,468 against Income Tax officials in 2014.

The
CVC had received 37,039, 16,929 and 16,260 complaints in 2012, 2011 and
2010 respectively, according to its annual reports for the respective
years.

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Part B RTI Act, 2005

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State CIC lauds civic chief’s circular on RTI red tapism:
Maharashtra’s Chief Information Commissioner Ratnakar Gaikwad has applauded a BMC circular issued by Civic Commissioner Ajoy Mehta, aimed at reducing red tape over the implementation of the Right to Information Act, and now wants the state government to issue the very same circular to all state departments.

The BMC circular talks of how citizens who seek information under the RT I Act are often summoned to inspect documents even when the information they seek is not voluminous, or when they have not asked for an inspection. The circular asks BMC officials not to do so. Instead, they have been instructed to send the information directly to applicants, they should count the number of pages asked for, and charge the applicant for the information per page.

When the information sought is voluminous and an RT I applicant is called for an inspection, the circular says, applicants should not merely be dumped with the information, but the documents should be indexed and the pages numbered so that it is easy for applicants to find the information they are looking for.
(Also see in the issue of August 2015: page 94, Inspection of Documents.)

Grant for online filing of RTI Applications:
States can get financial aid from the Centre to set up facilities for the online filing of applications under the Right to Information (RT I) Act and other initiatives aimed at simplification and promotion of the transparency law. Various Administrative Training Institutes (AT Is) working under the states can also get grant of a maximum of Rs.4 lakh for setting up a helpline in regional languages for answering queries of the general public under the RT I Act, the Department of Personnel and Training (DoPT) announced on Thursday. “The facility of filing RTI applications and appeals online through the RT I online web portal has been launched and is being implemented in all the ministries or departments of the Government of India situated in New Delhi.

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Part A Decision of CIC

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RTI Stamps:

[CIC/SA/A/2015/000743 dated 24.07.2015; A. S. Berar vs. Dte of Education (East)]

In response to a RT I application, the Central Commission writes:

Neither the Act nor Rules state anywhere that the Public Authority should charge Rs.2 for writing a response or answering certain points under RT I, like ‘yes’ or ‘no’ or “information attached”. The Act does not provide for pricing the information or for collecting cost of searching the files or writing notes from them. Charging Rs.2 for the covering letter, or typing on paper, information collected from other files, is unheard of. These methods by the Public Authority will lead to delay or denial of the information.

The Commission also found that certain RT I sections are wasting paper in many ways. They write ‘letter is attached’, and that letter contains two sentences like ‘information sought is not available’. Such letter sent through three or four wings of the office reflect the office’s response and responsibility. At each stage, a file was built, letter was written after the file noting was approved and then posted.

In a response from the Ministry of Communications and IT Department of Posts on 18th October 2013 to a RTI petition filed by Mr. Subhash Chandra Agrawal, sent through the Ministry of Finance, it was stated: “As per costing exercises 2011-12, the operational cost of a postal order is Rs.37.45”. This means to realise IPO of Rs.6, the department has to spend Rs.37.45, besides wasting man-hours and stationery for writing the letter. The cost must have increased in 2015.

There are the commonsense points that PIO failed to notice.
(a) Postal order for less than Rs.10 is discontinued, thus asking for Rs.6 is meaningless.
(b) Even if IPO for Rs.10 is given to pay Rs.6, the public authority has to incur operational cost for IPO Rs.37.45 to transfer the cash.
(c) In writing a letter to appellant to demand Rs.10, the public authority has to spend at least one manhour.
(d) To post the letter, the IPO has to spend Rs.17 (for local speed post, Rs. 28 for non-local), or Rs. 22 (17 plus 5 Registered Post, for every next 20 grams or part of it Rs.5 additional), Rs. 27 (Registered Post-Acknowledgement Due).

Chief Information Commissioner Sri Satyananda Mishra in his order on 30.05.2012, in a second appeal filed by Subhash Chandra Agrawal cautioned the PIOs “It is not prudent to ask for Rs.2 per page in giving one page of information, because in the process, much more public money is lost in correspondence”. The IPOs for Rs.1, 2, 5, 7 were discontinued, but IPO of Rs. 10 is retained, perhaps for helping payment of Rs. 10 RT I fee. Because of non-availability of IPOs of smaller denominations, the applicants have to |pay more money than what is prescribed. For instance to pay Rs.12 copying charges, one has to take IPO of Rs.20.

In order to avoid all these complex and costly affairs, considering delay and wastage of money in collecting fee and charges, the Commission recommends to the Government of India, especially, the Department of Personnel & Training and the Department of Posts, to arrange exclusive stamps for RT I on the lines of Radio licensing stamps, which were used to collect the license fee decades ago. (a picture of those stamps is given below, * how these stamps were fixed in a license book for Radio can also be seen). It will be useful and easy to pay RT I fee or cost of copying if these RT I stamps are made in different denominations of Rs.2, 10, 50, and 100.

The Commission directs the respondent authority not to deny information on such trivial causes and not to waste public money in demanding small amounts. If charges to be paid are not worth the cost of typing and posting a letter etc., they should avoid it. The Commission directs the respondent authority to train the personnel in the RT I wing and sensitise them to understand the difference between fee, cost and value of letter or sheet containing information.

The Commission is also not convinced with the demand for refund of 6. Appellant is right in questioning the demand of a paltry amount as explained above, but Lt. Col. A. S. Berar should not have sought refund of Rs.6, because even in doing so, the Public Authority has to spend once again unnecessarily.

The respondent officer submitted that she would furnish the information after the remaining school responded to her forwarded letters. The Commission directs the respondent authority to furnish the information for the remaining 42 schools which might not take more than a page, without asking an IPO for Rs.2, within one month from the date of receipt of this order.

With the above observations, the appeal is disposed of. Mr. Subhash Chandra Agrawal commenting on the above judgement writes:

In a colorful pictorial CIC-verdict dated 24.07.2015 in appeal – number CIC/SA/A/2015/000743 wherein strongly reasoned recommendations citing RT I responses and earlier CIC-verdict are given for introducing RT I stamps in denominations of Rs.2, 10, 50 and 100 as the most convenient and enormous revenue-saving (of crores of rupees) mode for payment of RT I fees and other charges under the RT I Act.

CIC-verdict comes as a ready reckoner for concerned departments, namely Department of Posts and Department of Personnel & Training (DoPT) when it incorporates colorful photos of Radio and TV License fees stamps on lines of which RT I stamps can be issued.

With postal-orders below Rs.10 discontinued, there is no practical mode for making payments in fractions like Rs.2, 4, 6 and 8. High handling cost of Rs.37.45 to get RT I fees of Rs.10 is the other reason for suggesting RT I stamps.

Red-tapism and ‘jaisa hai chalne do’ bureaucratictheory has obstructed issuing of RT I stamps earlier also suggested in a full-bench CIC-verdict dated 27.08.2014 in appeal-number CIC/BS/C/2013/000149/LS when Department of Posts informed that Security Printing Presses at Nasik and Hyderabad expressed inability to print RT I stamps because of shortage of paper. At least now sincere and serious steps should be made for immediate introduction of RT I stamps.

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Direct Taxes

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Due date for obtaining and filing tax audit report for the assessment year 2014-15 is extended to 30th November, 2014 – Notification No. F.No.133/24/2014-TPL dated 20th August, 2014

CBDT extends the due date for obtaining and filing the tax audit report u/s. 44AB of the Act for non-transfer pricing assessees to 30th November, 2014 since new formats have been issued for tax audit report. It has been clarified, that the tax audit report filed till 24th July, 2014 in the old format will be treated as valid reports.

Committee constituted for deciding on cases covered under the retrospective amendments relation to transfer of assets – Notification No. F.No. 149/141/2014-TPL dated 28th August, 2014

CBDT has passed an order u/s. 119 of the Act constituting a Committee consisting of three members of the CBDT viz. i) Joint Secretary (FT&TR-I), (ii) Joint Secretary (TPLI) and (iii) Commissioner of Income-tax (ITA ).

Any case pertaining to period before 1st April, 2014 wherein the AO feels that income deems to accrue or arise in India through transfer of capital assets in India as covered under the Amendments made u/s. 2 (14), 2(47), 9(1)(i) and section 195, such case would be referred to this Committee subject to conditions prescribed. The AO needs to seek approval from the Committee for any action in this matter. The Committee after giving an opportunity to the assessee, shall endeavor to decide the reference within 60 days of the receipt of the reference in writing, a copy of which would be given to the assessee. The decision of the Committee would be binding on the AO. The AO would proceed in the matter following the directions of the Committee.

CBDT has issued an office memorandum to all the officers instructing them to maintain the schedule of appointment given to the tax payers and not wasting their time by making them wait. – F.N.: DIR(Hqrs)./Ch.DT/20/2013 dated 22nd August, 2014

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From Published Accounts

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Section A: Impairment of Goodwill in Consolidated Financial Statements (CFS)

Vedanta Ltd . (31-3-2015)

From Notes to Financial Statements

Exceptional Items (Extracts)

Provision for impairment of goodwill includes:
(i) Non-cash impairment charge of acquisition goodwill, in respect of the group’s ‘Oil and Gas’ business aggregating Rs.19,180 crore. The impairment of goodwill was triggered by significant fall in the crude oil prices. For the purpose of impairment testing, goodwill has been allocated to the ‘Oil and Gas’ cash generating unit (“CGU”). The recoverable amount of the CGU was determined based on the net selling price approach, as it more accurately reflects the recoverable amount based on management view of the assumptions that would be used by a market participant. This is based on the cash flows expected to be generated by the projected oil or natural gas production profiles up to the expected dates of cessation of production sharing contract (PSC)/ cessation of production from each producing field based on current estimates of reserves and resources. It has been assumed that the PSC for Rajasthan block would be extended till 2030 on the same commercial terms. Discounted cash flow analysis used to calculate net selling price uses assumption for short term (five years) oil price and the long term nominal price of US$ 84 per barrel derived from a consensus of various analyst recommendations. Thereafter, these have been increased at a rate of 2.5% per annum. The cash flows are discounted using the post-tax nominal discount rate of 10.32% derived from the post-tax weighted average cost of capital. The impairment loss relates to the ‘Oil and Gas’ business reportable segments, however this has been shown as exceptional items and does not form part of the segment result for the purpose of segment reporting.

(ii) The mining operations at Copper Mines of Tasmania Pty Limited (“CMT”), Australia were temporarily suspended in January 2014 following a mud rush incident at the mines. On June 27, 2014, a rock fall occurred in the Prince Lyell mine affecting an access drive which connects the lower levels of the mine to surface. As a consequence, mining operations were put into Care and Maintenance. Non-cash impairment charge of acquisition goodwill, in respect of CMT aggregating to Rs.281.28 crore was recognised during the year ended March 31, 2015. The impairment of goodwill was as a result of continued care & maintenance of the operations with nil production and consequent delay in startup of operations which is dependent on fresh exploration efforts. For the purpose of impairment testing, goodwill has been allocated to the ‘CMT’ cash generating unit (“CGU”). The recoverable amount of the CGU was determined based on the net selling price approach. This is based on the cash flows expected to be generated by projected exploration & production profile of copper reserves. Discounted cash flow analyses used to calculate net selling price uses assumption for prices derived from the market projections. The cash flows are discounted using the post-tax nominal discount rate of 9.14% derived from the post-tax weighted average cost of capital. The impairment loss relates to the ‘Copper’ business reportable segment; however this has been shown as exceptional item and does not form part of the segment result for the purpose of segment reporting.

Tata Global Beverages Ltd . (31-3-2015)

From Notes to Financial Statements
During the year the Group recognised a non-cash impairment loss relating to its businesses in China and Eastern Europe. The impairment relating to the China business, a subsidiary company under joint venture control, of Rs.2,484 lakh within tea segment is on account of delays in start-up and stabilisation of technology for an enhanced product range. A pre-tax discount rate of 15.1% has been used for value in use computation.

In the case of Eastern Europe, the goodwill impairment mainly relates to Russia within coffee segment and to a lesser extent to Czech Republic within tea segment. In Russia, the impairment of Rs.4,480.51 lakh is arising due to adverse macroeconomic environment with resultant adverse impact on interest and discounting rates used for impairment assessment. A pre-tax discount rate of 20.4% has been used for value in use computation. In the case of Czech Republic, the impairment of Rs.2,573.91 lakh has been recognised based on current expectation of business performance. A pre-tax discount rate of 6.3% has been used for value in use computation. The impact of impairment has been accounted under exceptional items and is disclosed as unallocated items in the segment report.

Tata Steel Ltd . (31-3-2015)

From Notes to Financial Statements

Exceptional Items (Extracts)

During the year the Company has recognised a non-cash write down of goodwill and fixed assets of Rs.6,052.57 crore. The impairment is primarily due to the external economic environment and macro-economic conditions in each geography of operation, the underlying demandsupply imbalance facing the global steel industry, significant volatility in iron ore and coal prices in the last twelve months and the current long term view of steel and its raw material prices.

The impairment review was performed for cash generating units (CGUs) which were generally taken as legal entities or businesses within the group. The recoverable amount of CGUs and other assets were primarily based on their value in use. The discounting rates used for the value in use calculations were based on the pre-tax weighted average cost of capital and are in the range of 6% – 12%.

The impairment loss on tangible and intangible assets relate to the following primary business reportable segments, however the same has been shown as an exceptional item and does not form part of segment result for the purpose of segment reporting.

Tata Chemicals Ltd . (31-3-2015)

From Notes to Financial Statements

Exceptional Items (Extracts)

During the current year, the Group has recognised a noncash write down of goodwill of Rs.8.52 crore (previous year Rs.619.77 crore) and other assets (including capital work-in-progress and commitments in respect thereof) aggregating to Rs.188.43 crore (previous year Rs.363.91 crore) primarily relating to the Chemical and Bio-fuel overseas business (previous year relating to the Group’s Kenyan operations and the Fertiliser and Biofuel operations in India).

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FROM THE PRESIDENT

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Every one of us eagerly waited for and watched Prime Minister Narendra Modi’s historic address to the Nation from the Red Fort on our 68th Independence Day. Over the last several years, a major ailment that has afflicted the vast majority, especially the educated middle class, is corrosive cynicism, as pointed out by the noted thinker Pratap Bhanu Mehta. He berated that the cynicism had become a self-fulfilling prophecy. Few believed anything could change, and so little changed. With this exhilarating address, the Prime Minister reinforced a much-needed hope that things can and will certainly change. The Prime Minister has rightly exhorted the Citizens to shed the attitude of “Mera Kya” and “Mujhe Kya” and contribute to the Nation building. This inspiring address will go a long way in helping the Citizen overcome the cynicism. Let us be a part of the change instead of remaining shackled as an argumentative Indian.

In this address, the Prime Minister raised an important and extremely critical issue that has been largely unaddressed in Independent India. An all pervasive filthiness has plagued large parts of our beloved country. A search on Google reveals millions of web pages full of articles about filth in India with nasty comments that make us feel deeply ashamed. Some critiques also allege that Indians by nature are unhygienic! The then environment minister Jairam Ramesh went to the extent of saying that if there was to be a Nobel Prize for dirt and filth, India would get it.

It has come as a pleasant surprise that the topmost leader in independent India is leading from the front in the combat against this menace of filth. Given the magnitude, this push coming from the highest level was perhaps overdue. As rightly stated by the Prime Minister Modi, the solution requires whole-hearted participation from every single Citizen of India. Mahatma Gandhiji made cleanliness an important priority in his ashrams, teachings and writing. He gave us the golden quote “Cleanliness is next to Godliness” He also said “…a meticulous sense of cleanliness, not only personal, but also in regard to one’s surroundings is the alpha and omega of corporate life”. Indeed a Clean India will be the right tribute to Mahatma Gandhi on his 150th birth anniversary in 2019. Let us all commit ourselves to this noble cause and contribute our mite to it.

It is not just physical space, the way society conducts itself has been affected by this filth. Corruption has enhanced the decline in ethical standards. Various institutions and organisations too have been afflicted by this malaise of corruption. They are in need of urgent clean-up as well. A case in point is recent revelations exposing corruption in Judiciary by Justice Katju in his blog. This has created a storm and triggered a debate about one of the most important pillars of our democracy. In reply to allegations that exposing corruption defames the judiciary, Justice Katju has rightly asked: does corruption by Judges defame the judiciary, or does exposing such corruption defame it? Hitherto, the response from the custodians has been largely to brush such issues under the carpet.

Going by the well-known quote by the U.S. Supreme Court Justice Louis Brandeis, “Sunlight is the best disinfectant” from his book “Other People’s Money, and How the Bankers Use It” published in 1914, such open forum discussions will certainly help in the clean-up process. Incidentally, Justice Brandeis, while being a counsellor to President Woodrow Wilson, continued his investigations of the implications for democracy of the growing concentration of wealth in large corporations and set down his anti-monopoly views in this book that remain relevant even 100 years after it was first published.

In this season of being candid and forthright, the RBI Governor Raghuram Rajan, while delivering a lecture last month, expressed his concerns about crony capitalism. It was an admission that allegedly the rich and the influential have received land, natural resources and spectrum in return for payoffs to venal politicians. He lamented on how the vicious circle has perpetuated, whereas the poor and the underprivileged need the politician to help them get jobs and public services. The crooked politician needs the businessman to provide the funds that allow him to supply patronage to the poor and fight elections. The corrupt businessman needs the crooked politician to get public resources and contracts cheaply. And the politician needs the votes of the poor and the underprivileged.

The Governor suggests direct cash transfer instead of the promise of free or cheap public service as a solution to this problem. He believes that the financial inclusion and direct benefits transfer can be a way of liberating the poor from dependency on indifferently delivered public services, and thus indirectly from the venal but effective politician. This new approach seems ambitious and puts faith in the market economy. Let us hope that this innovation will eliminate corruption, reduce poverty and drive India towards true political independence.

As per the Annual Report of the Ministry of Finance for 2013-14, the gross non-performing assets (NPA s) of the public sector banks (PSBs) increased from Rs.1,55,890 crores (GNPA Ratio 3.84%) in March, 2013 to Rs.2,04,249 crores (GNPA Ratio 4.44%) in March 2014 (provisional). The Ministry reasons that the increase is due to sluggishness in the domestic growth in the recent past, slowdown in the recovery in the global economy and continuing uncertainty in the global markets. The recent arrest of the Chairman and Managing Director of a Public Sector Bank, however, suggests that growing political and bureaucratic interference in governance of the PSBs that has led to corrosive corruption is perhaps the major factor behind increase in the NPA s.

It seems that no lessons have been learnt from past episodes of such scandals and consequent bailouts. Bank finance is one more area that is in dire need of a clean-up. The debate is on as to how to improve the quality of governance in banks. Various suggestions are pouring in. However, the most effective remedy lies in stern and timely actions against the highly connected perpetrators without fear or fervour. While addressing recent meetings in Haryana and Maharashtra, the Prime Minister has termed corruption as a “disease and sin” deadlier than cancer and reiterated his Government’s commitment to banishing it from the country. One hopes these statements will translate into concrete and quick actions and help change the reality on the ground.

On the BCAS front, the new committees are lining up a slew of activities. The Human Resources Committee with the help of the Youth Brigade has planned a very ambitious program “JhanCAr”, a “Togetherness and Networking Carnival” for Chartered Accountants on 13th and 14th December, 2014. Do go through the announcement and look for further details of this very exciting event.

By the time this message reaches you, we will be celebrating the Teachers’ Day on 5th September. Our profession requires each one of us to be a student as well as a teacher and hence this day is special for us as well. I fondly remember all my Gurus, including my principals and seniors during my articleship and at the BCAS, and offer my deepest respect to each one of them. When we remember our great teachers, we should also think of how we should be a good teacher and mentor to the younger generation and be remembered for having inspired them and bringing positive changes in them.

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Indirect Taxes

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Reduced late fee Trade Circular 13T of 2014 dated 02-08-2014

Dealer may file any of the returns for periods up to February, 2014 along with payment of tax and interest up to 30-09-2014 with reduced late fee of Rs.1,000/- instead of Rs.5,000/-.

Computerised Desk Audit (CDA) for the period 2011-12

Trade Circular 14T of 2014 dated 06-08-2014

Department has developed a system by which a facility is provided to the dealer to access and comply with the findings of the department electronically on the website and no need to visit sales tax officer if he agrees with the findings of the CDA system. This facility is not available to dealer whose case is selected for comprehensive assessment. Parameters for selection of cases in CDA and procedure to comply with findings are explained in this trade circular.

Amendments to various Acts administered by the Sales Tax Department

Trade Circular 15T of 2014 dated 06-08-2014
Salient features of the various amendments as per Maharashtra Act No. XXVII of 2014 have been explained in this trade circular.

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Direct Taxes

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105. CBDT issues Standard Operating Procedures (SOP) to improve the quality of services to taxpayers and also identify the responsibilities of various departments in the Tax office for effective implementation – Letter dated 2 August 2016

106. CBDT issues Standard Operating Procedures (SOP) for handling AIR transactions which do not have valid PAN –

CBDT Directive File no: F No. 225/193/2016/ ITA.II dated 22 July 2016

107. Due date for furnishing returns due on 31 July 2016 extended till 5August 2016 –

F.No. 225/195/2016/ITA.II dated 29 July 2016

108. Income Declaration Scheme (Third Amendment) Rules, 2016 –

Notification No. 74/2016 dated 17 August 2016

IDS Scheme rules has been amended to provide an option to the tax payer to take the stamp duty value as increased by the same proportion as Cost Inflation Index for the year 2016-17 bears to the Cost Inflation Index for the year in which the property was registered or fair market value as on 1.4.1981 whichever is applicable, provided the property declared is evidenced by a registered deed with a competent authority as prescribed.

109. Additional clarifications issued on IDS Scheme –
Circular no. 29/2016 dated 18 August 2016

Miscellanea

1. Economy

7. With 109 Chinese firms making
it to the Fortune Global 500-2017, where does India Stand?

While Walmart topped the Fortune
Global 500 list, China’s State Grid, oil giant Sinopec Corp and China National
Petroleum were ranked second, third and fourth. Seven Indian firms made it to
the list.

While India, as well as numerous
other nations, believe that the United States tops the list of the global
economic powers, not many realise the kind of impact China has been making. The
Fortune Global 500 list for the year 2017 was released on Thursday, July 20,
and 109 Chinese firms have made it to the list.

While US retail giant Walmart
topped the list, China’s State Grid, oil giant Sinopec Corp and China National
Petroleum were ranked second, third and fourth.

Among the 109 firms that have made
it to the list, 10 are debutants. These 10 names include e-commerce brand Alibaba,
internet giant Tencent, Anbang Insurance Group and real estate developer
Country Garden.

In
comparison, only seven Indian firms have made it to the Fortune Global 500 list
this year. India’s economic expansion is expected to have accelerated in the
April-June quarter and is likely to grow in the second quarter as well.

(Source: International Business
Times dated 21.07.2017)

8. India has a Leader Who Believes
in Disruption 

In his latest avatar as the
Chairman of US Chairman of US India Business Council, John Chambers is
convinced that India is at an inflection point. In a chat with ET’s TV
Mahalingam, Chambers, who is also Cisco’s executive chairman, spoke about his
reading of the Modi-Trump dynamics & how India has changed in the last three
years.

Excerpts:

What’s your reading of the
recent meeting between President Trump & PM Modi?

I turned positive on India three
years ago & I volunteered to be Chairman of US India Business Council
(USIBC). Even though I have been involved with India for 20 years with Cisco, I
think the inflection point in India is a record in terms of this opportunity.
The meeting between the two leaders could not have gone better.In the CEOs
session with him, the PM was incredibly effective in listening to each of the
20 business leaders in the room & coming back on key issues. On a scale of
1 to 10, how did the meetings go? It was 11.

This target of $500 billion of
two-way trade between the two countries that USIBC has set, how achievable is
that & what needs to be done?

I was the one to bet on China in
1995 when almost nobody else did. When I forecast a few years ago that France
would be a start-up nation due to digitisation, nobody believed me. Guess which
was the top startup nation in Europe last year? France.When it comes to India,
I think we have not seen anything yet. This is a win-win. If you look at going
from the current level of $115 billion to $500 billion -the amount of jobs this
will create is massive.If you look back at 2000, we were just at $20 billion.
Now these are doable goals based on the confidence of the Indian & American
business leaders.

(Source:
ET Q&A – The Economic Times dated 12.07.2017)

2.  Sports

9. IPL broadcast rights war: Can
Jio topple Facebook, Twitter for digital space?

18 big names from across the globe
bought tender documents last year. With most of them likely to enter the fray
again, the Invitation to tender is all set to be available from 21st July
2017.

There was a jump of 454% in the
fee to retain Indian Premier League (IPL) title rights when Chinese mobile
manufacturing brand Vivo extended its deal for the next five years (2018-2022)
for whopping sum of  Rs. 2199 crore.

The Board of Control for Cricket
in India (BCCI) is expecting another such windfall as it is set to open the
Invitation to Tender (ITT) for IPL broadcast & media rights on 21 July
2017.

Sony Pictures Network India (SPN)
hold the television rights (2008-2017) while Star India has been in charge of
digital broadcast of the cash-rich 20-20 tournament for the last few seasons.

However, the competition for the
next term is going to be intense as quite a few big names including Discovery,
Facebook, Jio & Twitter are expected in the race.

(Source: International Business
Times dated 21.07.2017)

3. Industry

Why this is Indian IT
Industry’s Kodak Moment?

Once-great companies like Kodak,
Digital and Nokia with capable CEOs and vast resources come to an ignominious
end not because they do not see the tsunami coming — they die or fade into
irrelevance because they are unable to respond forcefully. Kodak invented the
digital camera as early as 1975. It had all the technology, resources, brand,
and distribution to prevail. Yet it failed.

A major reason why once-dominant
firms like Kodak fade away like old photos is culture. Culture trumps strategy.
A combination of complacence & overconfidence (“this cannot happen to
us”) prevented Kodak from adapting quickly. Its leadership was indecisive
and changed strategy many times. Despite having a venture capital arm, it took
years to make its first acquisition and never made any bets big enough to
create breakthroughs. Kodak offered the first service that allowed customers to
post and share pictures online but failed to follow through forcefully to
create what might have become Instagram or Snapchat. It diversified into
chemicals and pharmaceuticals but without much conviction; these businesses
fizzled and were sold off. Unlike Fuji, Kodak obsessed about its core developed
markets and did not seize the opportunity in emerging markets, especially a
rising China. Having failed to become a printing powerhouse, Kodak is now
trying to license its rich portfolio of patents.

There are a set of reasons that
make it difficult for even well managed companies to navigate industry
disruptions the way Fuji did or Microsoft has. High on the list is complacence,
even arrogance. When a company is sitting on lots of cash, fat margins & a
good market share, it is hard to create a sense of urgency in the organization
& among its shareholders.Today, India’s IT companies are struggling to
navigate a tectonic industry shift. Its leaders have seen the technological
& regulatory shifts coming for the last decade. They have recognized the
limits of wage arbitrage and understood the need to shift from renting IQ to
creating IP, and becoming more global. They see the giant new opportunities
afforded by the digital revolution. But as the story of Kodak shows, seeing is
not enough. Acting decisively and forcefully is crucial. More than ever,
India’s IT companies need the same caliber of courageous and entrepreneurial leadership
that created them in the first place.

‘The
snake that cannot shed its skin must die’ — Friedrich Nietzsche.

(Source: Extracts from an
Article by Shri Ravi Venkatesan, Co-chairman of Infosys in the Times of India
dated 02.07.2017)

4. Others

10. Skill, re-skill and re-skill again. How to keep up with
the future of work?

“Every
five years, your skills are about half as valuable as they were before”

The jobs market is well into the
21st century. So why isn’t our education system?

Today’s jobs are vastly different
than they were a generation ago. All of us, from Gen Zers to Boomers, are
facing a working world that is more changeable and unpredictable than ever.

The days of working for 40 years
at one job and retiring with a good pension are gone. Now the average time in a
single job is 4.2 years, according to the US Bureau of Labor Statistics. What’s
more, 35% of the skills that workers need — regardless of industry — will have
changed by 2020.

That rapid pace of change in jobs
and skills means there is a growing demand to update skills as well. According
to a new report on workforce re-skilling by the World Economic Forum, one in
four adults reported a mismatch between the skills they have and the skills
they need for their current job.

Skills for the wrong century

Here is the problem briefly: the
job opportunities that are available today are 21st century jobs.
However, the way most people perform these jobs is still stuck in the previous
century. As is the way, our society is training and educating people.

In the 19th century, there was a
massive movement of the population from rural to urban centres. The primary and
secondary education system was created to train the workforce for the “new”
world of manual and clerical work in cities.

In the 20th century,
work was dominated by factory jobs. The education system that was built in the
previous century was, with some modifications, still suited to training good
factory workers and their managers. Management focused on a series of tools to
optimize this kind of work: operational efficiency, something called Taylorism,
and eventually some management philosophies called Six Sigma. Management was
mostly done face to face, while health insurance, a social safety net, and
other benefits were bundled into inflexible labour contracts.

Today, in the 21st
century, we are seeing the rise of new work models such as freelancing and
remote work. In the most advanced companies, teams are learning to be more
agile, to work with distributed and remote teams, and to scale up and down to
adapt to ever-changing conditions. This is the future of work.

Yet education has not kept pace.
We still send our children through a fixed set of primary and secondary
education steps, only now a college degree has been added on as a virtual
prerequisite for the best jobs. The model does not actually prepare anyone well
for a flexible world, in which skills are typically outdated by the time you
finish a four-year degree.Further, on-the-job training is not enough to close
the gap. The World Economic Forum report found that 63% of workers in the US
say they have participated in job-related training in the past 12 months. Yet
employers are reporting the highest talent shortages since 2007.

What individuals can do

Given this situation, people in
the workforce should proactively steer their own ongoing skills development. In
other words, recognize that you need ongoing training, and realize that you
hold the responsibility for your own education. Do that and you can improve
your marketability for years to come?

The first step is to ask yourself:
Are my skills still in demand? What is the outlook for these skills? In
addition, what skills could I work on today that would increase my income
potential in the coming years?

Do this exercise every few years?
If the half-life of a job skill is about five years (meaning that every five
years, that skill is about half as valuable as it was before), you want to get
ahead of that decline in value. Assess your own skills every two or three years,
and get started learning new skills sooner rather than later.

For example, if you are a truck
driver, you can see that autonomous vehicles are a likely threat to your
employment — maybe not this year or next year, but certainly within 5 or 10
years. Do not wait until self-driving trucks are a common sight on the highways
to start building skills for your next job. Start doing it this year, so you
will be ready when the time comes.

Do not feel like you have to
retrain yourself completely, all at once. First, as pointed out by the New York
Times this week, many of the skills needed to do fading jobs are applicable to
growing jobs. For skills, you do need to acquire, consider step changes. In
computer science, we are trained to break down large problems into smaller
chunks that can be more easily solved, one at a time. You are not going to turn
yourself from a coal miner into a data miner overnight. Nevertheless, you can
acquire basic skills leading in the direction you want to go.

As your career progresses, make
decisions about which work to take based on how much you will learn. Prioritize
jobs where you will learn valuable new skills.

(Source: World Economic Forum
dated 31.07.2017)

11. Indian Scientist wins Marconi Lifetime prize

Thomas Kailath, who grew up in
Pune and is now an emeritus professor at Stanford, has been conferred the
lifetime achievement award by the US-based Marconi Society. This is only the
sixth time the lifetime award has been given by the prestigious society in its
43-year history.

Kailath has been recognized for
his contributions to information and system science over six decades, as well
as his sustained mentoring and development of new generations of scientists.
Among his many significant contributions is a classic textbook in linear
systems that changed the way that subject was taught.

Kailath and his doctoral student
Arogyaswami Paulraj, currently emeritus professor in the electrical engineering
department at Stanford University, are joint holders of the original US patent
for MIMO (multiple input, multiple output) technology which underpins the
technology that drives every Wi-Fi, 4G, and 5G network today and helps to make
them more efficient. 

The scientist was born in 1935 in
Pune, to a Malayalam speaking family, according to Wikipedia. He studied at St.
Vincent’s High School, Pune, and received his engineering degree from the
Government College of Engineering, University of Pune, in 1956. He received his
Master’s degree in 1959 and his doctoral degree in 1961, both from the
Massachusetts Institute of Technology (MIT). He was the first Indian student to
receive a doctorate in electrical engineering from MIT, says Wikipedia.

The Marconi prize has been
instituted by the Marconi Society, which was established in 1974 by the
daughter of Guglielmo Marconi, the Nobel laureate who invented radio. Previous
winners of Indian origin have been educationist and former UGC chairman Yash
Pal in 1980 and Stanford University emeritus professor and wireless antennae
pioneer Arogyaswami Paulraj in 2014. In June, the Marconi Society announced
that Arun Netravali, the engineer- scientist who grew up in Mumbai and
pioneered work on video compression standards, is the awardee for this year.
Kailath and Netravali will be awarded their respective prizes in October.

(Source: The Times of India
dated 15.08.2017)

12. Leadership Quotes

   Jeff Bezos –

     When It’s Tough, Will You
Give Up, Or Will You Be Relentless?”

   Donald Trump

     Think Big and Make It
Happen”

   Larry Page –

If you’re changing the World, You’re working
on Important Things. You’re excited to get up in the Morning”

From The President

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Dear Members,

As I pen this message, the curtain has come down on the 2016 Olympics in Rio in a grand and spectacular closing ceremony. Around ten thousand sports people competed aggressively for 2,488 gold, silver and bronze medals. Amidst the outstanding victories and whisker-close defeats, one message comes out very strongly – “Good is the enemy of best”. India has to learn this lesson well if it is going to score in the 2020 Tokyo Olympics. The Indian contingent will have to be truly world-class – wellhoned physically and mentally to win. Clearly, mediocrity, inconsistency, and half measures won’t take us anywhere near the victory stand!

With India’s encouraging six medals in the London Olympics in 2012, and its large Olympic contingent, which exceeded 100 participants for the very first time, expectations were running high. With just two medals, the “Make in India’ lion has returned to India to lick its wounds and do some serious introspection…and maybe some passing the buck too!

The silver lining in the dismal performance is that the women of India have clearly demonstrated where the ‘Citius, Altius and Fortius’ lie. Undoubtedly, the sportswomen have proven their prowess and their power to win in spite of all odds that sports persons have to face in our country. It is the time that the women in India, especially in the smaller towns and villages are empowered to live their dream and go on to achieve…not just in the Olympics but in the everyday journey called life!

Sindhu and Sakshi have returned to a hero’s welcome with people lining streets to applaud their grit, determination, and success. The central government, state governments, sports federations, companies, and individuals have been falling over themselves to shower them with cash, cars, land, jobs. Several companies also are lining up to sign them up as brand ambassadors. One wonders if all these resources and facilities were provided earlier, wouldn’t it have changed our medal tally?

GST – Ultimately
Let us leap to another very significant happening in the last month, the passing of the Goods and Services Tax (GST) Bill. It took sixteen long years in the making and was finally cleared in both houses in the first week of August. The Prime Minister, Shri Narendra Modi promptly tweeted: “GST will give strength to our economy and all parties are to be thanked for its passage.”

GST is now at our doorstep and is set to be the biggest game changer in the Indian economy by creating a common Indian market and cutting out the cascading effect of tax. Its implementation demands a complete overhaul of the current indirect tax system, right from tax structure, incidence, computation, payment and compliance to credit utilization and reporting. The impact of GST will be far reaching and require a revamping of pricing, supply chains, IT, accounting, and tax compliance. There’s huge opportunity staring us in the face!

Being a major tax reform, the GST will stoke several conflicts: between political parties; the union and state governments; and between producing and consuming states. The Centre is keen on rolling out GST by April 2017, but there are several challenges that need sorting out to ensure its smooth implementation. Replacing several taxes and harmonizing them across the union and state governments is a giant challenge. The IT platform for implementing GST will need to be all encompassing to accommodate state, central and integrated GST provisions.

All these daunting challenges have rallied the captains of industry to request the government to defer the switchover to GST for another six months. Over 40,000 suggestions have poured in, offering a wide range of comments and feedback. Whatever happens, let’s get GST ready! BCAS has planned full day workshops on GST Model Law this month, and the response has been tremendous.

The CBEC invited the BCAS for an interactive meeting with the policy makers on GST at the North Block. From the BCAS, Mr. Govind Goyal and Mr. Sunil Gabhawalla attended the meeting and made a detailed representation of the draft model GST Law. The authorities found some of the representations unique and practical to implement. A copy of the representation is available on the website.

Income Declaration Scheme
Let us now shift our focus to the government’s Income Declaration Scheme (IDS) that has been in the daily news. Stung by repeated criticism about its inaction in tackling the herculean black money problem, the government hurriedly launched a one-time compliance window to attract black money squirreled abroad. The scheme predictably bombed. Now we have an India avatar of the scheme to draw undeclared income and assets into the tax net. Tax evaders are being urged to declare their unaccounted assets voluntarily, pay the applicable tax, cess, and penalty aggregating 45% of the undisclosed income; and enjoy total immunity from any further penalty or prosecution under the Income Tax Act or Wealth Tax Act.

The government has taken pains to reiterate that the IDS is not an amnesty scheme to reward dishonest tax evaders by giving them an escape window. The ten amnesty schemes that were launched at regular intervals between 1951 and 1997 were largely misused. Tax evaders escaped stringent action and on the contrary paid lower than normal taxes, yet got blanket immunity. Assets declared under many of the schemes were grossly undervalued for tax purposes, and so the corresponding tax collection was much lower.

The IDS in its current form must, therefore, appear very harsh, and as of now, the response seems to be lukewarm. There are many reasons that may have deterred tax evaders from coming clean but importantly immunity is currently granted only from Income Tax and Wealth Tax, leaving the evader open to prosecution from Service Tax, Sales Tax, and other authorities.

BCAS, along with three other associations, made a detailed representation pointing out the anomalies, most of which were taken care in the latest FA Qs issued by the CBDT. Additionally, BCAS has brought out an excellent publication on IDS to help professionals understand the contours of the scheme and make their filings accordingly.

Meeting of revenue targets – is this the way?

There was a small article in the corner of the newspaper which I thought I should draw your attention to. It pertained to the unfair and deceitful means adopted by IT officials to ensure tax targets were met. Colluding with SBI officials, IT officials quietly collected Rs. 10,000 crore on 30th March and promptly refunded it on 1st April. This modus operandi including altogether stopping from issuing refunds in the first quarter of each year was being employed with several corporate entities, and it ensured robust figures that made the books look good. On investigating the massive refunds in the first week of April, the scam came to light, and officials got transferred. The Finance Ministry has taken a tough stand, warning officials that engage in ‘taxtortion’ that they will be dealt with sternly. As CAs we are all aware of such modus operandi and now it is the time not to take things lying in case our clients also suffer such unjust.

International Tax Conference
The International Tax and Finance conference (ITF) a popular event of the Society crossed borders for the first time, it was successfully held in Sri Lanka. The participants included participants from all across the country as well as some international participants There was a balanced combination of learning with fun. The day used to be full of brainstorming sessions and discussion with enlightenment from elite speakers, whereas the evenings used to be full of interaction and amusement. The highlight of the conference was the one to one interaction with the Minister of Finance of Sri Lanka who was very candid and appreciative of India and its prowess.

Ganapati Bappa Morya! Micchami Dukkadam!

Company Law

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1. Companies (Acceptance of Deposits) Amendment Rules, 2016

The Ministry of Corporate Affairs has vide Notification No GSR 639 (E ) dated 29th June 2016, notified amendments to the Companies (Acceptance of Deposit) Rules, 2014. Among other amendments, it has excluded an amount of Rs. 25 Lakh or more received by a start-up company, by way of a convertible note (convertible into equity shares or repayable within a period not exceeding five years from the date of issue) in a single tranche, from a person.

A Start-up Company means a private company incorporated under the Companies Act, 2013 or Companies Act, 1956 and recognised as such in accordance with notification number G.S.R. 180(E) dated 17th February, 2016 issued by the Department of Industrial Policy and Promotion, Ministry of Commerce and Industry.

A Convertible Note means an instrument evidencing receipt of money initially as a debt, which is repayable at the option of the holder, or which is convertible into such number of equity shares of the start-up company upon occurrence of specified events and as per the other terms and conditions agreed to and indicated in the instrument.

In Rule 3 to the Principal rule which limits the eligible Company to accept or renew any deposit from its members, the limit has been increased from 25% to 35% of the aggregate of the paid-up share capital and free reserves of the company.

Also the following proviso to Rule 3 of the Principal rules, after sub Rule 3 has been inserted-

“Provided that a private company may accept from its members monies not exceeding one hundred per cent of aggregate of the paid up share capital, free reserves and securities premium account and such company shall file the details of monies so accepted to the Registrar in such manner as may be specified.

Rule 16 A pertaining to “Disclosures in the financial statement” has been introduced as follows:

(1) Every company, other than a private company, shall disclose in its financial statement, by way of notes, about the money received from the director.

(2) Every private company shall disclose in its financial statement, by way of notes, about the money received from the directors, or relatives of directors.

The full notification can be accessed at http://www. mca.gov.in/Ministry/pdf/Rules_30062016.pdf

2. Companies (Appointment and Remuneration of Managerial Personnel) Amendment Rules, 2016

The Ministry of Corporate Affairs has vide notification No. G.S.R. 646(E) dated 30th June 2016 issued amendments to the Companies (Appointment and Remuneration of Managerial Personnel) Rules 2014.

The disclosures applicable to listed companies as mentioned in Rule 5 of the principal rules, sub-rule (1), “clauses (v), (vi), (vii) and (ix) to (xi)” have been omitted:

(v) the explanation on the relationship between average increase in remuneration and company performance;

(vi) comparison of the remuneration of the Key Managerial Personnel against the performance of the company;

(vii) variations in the market capitalisation of the company, price earnings ratio as at the closing date of the current financial year and previous financial year and percentage increase over decrease in the market quotations of the shares of the company in comparison to the rate at which the company came out with the last public offer in case of listed companies, and in case of unlisted companies, the variations in the net worth of the company as at the close of the current financial year and previous financial year;

(ix) comparison of the each remuneration of the Key Managerial Personnel against the performance of the company;

(x) the key parameters for any variable component of remuneration availed by the directors;

(xi) the ratio of the remuneration of the highest paid director to that of the employees who are not directors but receive remuneration in excess of the highest paid director during the year;

Following Disclosures in the Directors report are also required:

Details of remuneration of every employee drawing in excess of Rs 1,02,00,000/- pa or Rs. 8,50,000/- per month is to be disclosed alongwith the names of the top ten employees in terms of remuneration drawn.

Further the filing of Form No. MR-1 for the appointment of Chief Executive Officer, Chief Financial Officer and Company Secretary has been omitted.

The full notification can be accessed at http://www. mca.gov.in/Ministry/pdf/AmendmentRules_01072016. pdf

3. Removal of Difficulties Third Order – Rotation of Auditors

The Ministry of Corporate Affairs has vide Order no S.O. 2264(E) dated 30th June 2016, issued the Removal of Difficulties Third Order, which is deemed to be effective from 1st April 2014.

The third proviso of section 139 (2) (pertaining to Appointment of Auditors) of the Companies Act 2013 states that every company existing on or before the commencement of the Act and falling within the ambit of section 139 (2) (i.e. provisions relating to rotation of auditors) of the Act, are required to comply with the requirements of the said sub-section within 3 years from the date of commencement of the Act.

Given the above, difficulties have arisen regarding compliance with the provisions of the third proviso to section 139 (2) of the Act in so far as they relate to the period within which companies would comply with the provisions of section 139 (2) of the Act. In this regard, the Central Government has made the order by which, the third proviso to section 139 (2) of the Act would be substituted with the following proviso:

“Provided also that every company, existing on or before the commencement of this Act which is required to comply with the provisions of this sub-section, shall comply with requirements of this sub-section within a period which shall not be later than the date of the first annual general meeting of the company held, within the period specified under sub-section (1) of section 96, after three years from the date of commencement of this Act.”

This order aims to remove the difficulties that have arisen regarding compliance with Rotation of Auditors. The provisions of third proviso to section 139(2)in so far as they relate to the period within which companies would comply with provisions of section 139(2) of the said Act is substituted as follows:

The full notification can be accessed at http://www.mca.gov.in/Ministry/pdf/ROD_Third_Order_2016.pdf

4. Companies (Incorporation) Third Amendment Rules, 2016

The Ministry of Corporate Affairs has vide Notification No G.S.R. 743(E) dated 27th July 2016 issued Companies (Incorporation) Third Amendment Rules, 2016 to amend the Companies (Incorporation) Rules 2014.

Rule 3(2) has been substituted as follows:

“(2) A natural person shall not be member of more than a One Person Company at any point of time and the said person shall not be a nominee of more than a One Person Company”

Rule 26 with respect to Publication of the name of the Company has been substitutes as follows :

(1) Every company which has a website for conducting online business or otherwise, shall disclose/publish its name, address of its registered office, the Corporate Identity Number, Telephone number, fax number if any, email and the name of the person who may be contacted in case of any queries or grievances on the landing/home page of the said website.”

In Rule 28(2) the following proviso has been added after 2nd Proviso:

“Provided also that on completion of such inquiry, inspection or investigation as a consequence of which no prosecution is envisaged or no prosecution is pending, shifting of registered office shall be allowed. R ule 29 (1) is substituted as follows:

“(1) The change of name shall not be allowed to a company which has not filed annual returns or financial statements due for filing with the Registrar or which has failed to pay or repay matured deposits or debentures or interest thereon:

Provided that the change of name shall be allowed upon filing necessary documents or payment or repayment of matured deposits or debentures or interest thereon as the case may be.”

The rule for Conversion of unlimited liability company into a limited liability company by shares or guarantee have been incorporated in newly added Rule 37.

The full notification can be accessed at http://www.mca.gov.in/Ministry/pdf/CompaniesThridAmendementRules_28072016.pdf

5. Companies (Share Capital and Debentures) Fourth Amendment Rules, 2016

The Ministry of Corporate Affairs has vide Notification No G.S.R. 791(E) dated 12th August 2016 notified amendments to Companies (Share Capital and Debentures) Rules, 2014.

Rule 18, after Sub-rule (10), the following sub-rule shall be inserted.

“(11) Nothing contained in this rule shall apply to rupee denominated bonds issued exclusively to overseas investors in terms of A.P. (DIR Series) Circular No. 17 dated September 29, 2015 of the Reserve Bank of India.”

The full notification can be accessed at http://www.mca.gov.in/Ministry/pdf/CompaniesFourthAmendmentRules_17082016.pdf.

Part D ETHICS, GOVERNANCE & ACCOUNTABILITY

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Business Transparency
In its simplest sense, business transparency means clear, unhindered honesty in the way that s/he does business. But it’s more than that. One business dictionary defines transparency as a “lack of hidden agendas or conditions, accompanied by the availability of full information required for collaboration, cooperation, and collective decision making.” The same source describes it as an “essential condition for a free and open exchange whereby the rules and reasons behind regulatory measures are fair and clear to all participants.” Meanwhile, another source defines transparency as “the full, accurate, and timely disclosure of information.”

In many cases, the word transparency is used as little more than a buzzword, a marketing opportunity. Whether it’s a corporate executive looking to win back disillusioned consumers and shareholders or a politician making whatever promises necessary to obtain public office, this term seems to have earned a bad rap over the years. And as a result, many have come to question the authenticity of those who use transparency as a part of their normal vernacular.

While observing the steady decay of this word would be a fascinating study in itself, there is another, more beneficial lesson to be learned in the wake of this linguistic disaster— particularly as it pertains to the way businesses are run.

This lesson can be learned, at least in part, by simply rediscovering what true transparency is—what does transparency actually mean? After that, one can utilize that understanding to discern the purpose of remaining transparent in the way s/he does business, as well as the often detrimental consequences of flouting that responsibility. Finally, with that new-found understanding, one can generate useful, ingenuous action plan for increasing transparency in his or her own business.

Transparency is one of those subtle things that can make a dramatic impact on a business. Yes, it will impact your bottom line. But that’s not the whole point. The point is that it helps everyone do business better—you, your clients, your team member. A culture of transparency is the way business ought to be done

RTI Clinic in September 2016: 2nd, 3rd, 4th Saturday, i.e. 10th, 17th, and 24th 11.00 to 13.00 at BCAS premises.

Part C Information on & around

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Maharashtra government makes another attempt to cripple RTI Act; move draws flak

The Maharashtra government is proposing a series of RTI rules, which, if implemented, would sound the death knell of the Act. Earlier, during the tenure of the previous government, some RTI rules were made.

What are the controversial proposals?

One is that an applicant would not be given details that “involve fresh collection of non-available data” or “compilation of existing data”. The other is not to give information on queries that seek “justification”.

How will the proposals kill the Act?

Already, there are complaints that many public information officers (PIOs) do not part with information largely because they do not even keep the records properly with them. The proposals also take away the onus of giving reasons for not providing information from the PIOs. The government is also looking to set a limit on the information it can provide online.

PMO discloses salary of its staff; IAS officer Bhaskar Khulbe highest paid

The monthly salary of all officers working in the prime minister’s office (PMO) has been made public as part of suo motu disclosure under the Right to Information (RTI ) Act with senior Indian Administrative Service (IAS) officer Bhaskar Khulbe the highest paid at Rs.2.01 lakh.

Khulbe, who is secretary to the prime minister, gets a monthly remuneration of Rs.2.01 lakh, according to details of the salary as on 1 June 2016 put on the PMO website.

Update details of officers handling RTI matters: Govt to depts

All central government departments have been asked to ensure that updated details of officers responsible for handling RTI applications are available in the public domain.

One of the items to be disclosed proactively by the public authorities (or government departments) under the Right to Information (RTI) Act pertains to the names, designations and other particulars of the Central Public Information Officers (CPIO) and its updation on a yearly basis.

Army canteens most profitable retail chain in India, ahead of Future & Reliance Retail

Which is the most profitable Retail chain in India? Answer: The defence canteen stores. Its earnings exceeded those of all other chains, including Future Retail and Reliance Retail. The Canteen Stores Department (CSD), which, incidentally, is a not-for-profit organisation, earned Rs 236 crore during FY14-15, according to a Right to Information query. Comparatively, Avenue Supermart, which runs D’Mart stores, made a profit of Rs 211crore.

118 sexual harassment cases filed in BMC in 4 years, reveals RTI

In the last four years (2013-16) the Brihanmumbai Municipal Corporation (BMC) officials have registered 118 cases of sexual harassment in its offices, reveals a right to information (RTI ) response.

In a reply to the RTI filed by activist Anil Galgali requesting number of sexual harassment complaints filed in the civic administration and action taken, the civic body replied saying 21 sexual harassments cases were registered by its women employees till June this year.

According to this information, from 2013 to 2016, the average number of complaints registered with committee which works under Women Sexual Harassment Prevention chief and ‘Savitribai Phule Women Resource Centre each year should be 29. While in 2013 and 2014, 32 and 34 complaints were lodged respectively, there was marginal decline in 2015 as 31 cases were filed.

Part B RTI Act, 2005

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Constitution bench to decide if SC is exempted from RTI Act

A five-judge Constitution bench of the Supreme Court will decide whether the apex court is liable to disclose information on judicial appointments under the Right to Information Act.

The bench will hear a case filed by its administrative wing through the Central Public Information Officer.

A three-judge bench led by Justice Ranjan Gogoi referred the question to the country’s top court, following a case filed by the CPIO of the Supreme Court against an earlier Delhi High Court ruling.

The Delhi High Court in 2014 upheld a similar order by the Central Information Commission and ruled that the Supreme Court is not exempt from disclosing information under the RTI . The high court thus allowed the public to seek information related to appointment of judges, and number of cases pending and disposed off in the apex court through RTI applications.

The Delhi High Court directed the Supreme Court registry to maintain all records, even judgments that had been reserved, to ensure that all information is available under RTI .

In 2011, the CIC had given a similar direction to the Supreme Court to maintain its records regarding all cases in such a way that information can be made available to RTI applicants. The Supreme Court has however, refused to give any directions with respect to divulging any details under the RTI during hearings of several public interest litigations.

The CIC gave its order in 2011 based on the apex court’s 2001 ruling in the case titled Anil Rai vs. State of Bihar. This judgement has been cited in most cases pleading for transparency in judiciary’s functioning on account of observations made on maintaining confidence of litigants. Several drafts of the Memorandum of Procedure prepared by the government for appointment of judges exclude appointments from the ambit of the RTI .

Part A Decision of CIC

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[Introductory Note to the following CIC Decision: In 2010 the Environment Minister placed a moratorium on release of Bt Brinjal, which would have been the first genetically modified (GM) food crop in India – despite it having been cleared as ‘safe’ by the Regulator, the Genetic Engineering Appraisal Committee (GEAC). This was done in the light of the analysis of the test data by scientists in India and abroad, who found many lacunae in the test results done by the applicant and accepted by the GEAC. There were also public hearings at 7 locations where the scientists as also consumers, farmers and NGOs could put their view point. Currently GM mustard has been through testing and may be cleared for release, but data was not being put in the public domain for analysis. An RTI application has resulted in the following landmark order]

GM mustard trials: CIC asks govt to reveal bio-safety data

The Central Information Commission (CIC) has directed the environment ministry to reveal safety data regarding trials of genetically modified (GM) mustard without further delay, noting that “any attempt to postpone or delay the disclosure will block the public discussion” on the controversial issue.

In April, the information panel had pulled up the Union ministry of environment, forest and climate change (MoEFCC) over its lack of transparency on trials of GM crops and directed it to make public all information, including bio-safety data, related to the field trials of the GM mustard crop before 30 April.

The CIC also directed the ministry to put in the public domain bio-safety data pertaining to all other GMOs (genetically modified organisms) in the pipeline.

The CIC’s directions came on an application by environment activist Kavitha Kuruganti, who sought information regarding field trials of GM mustard from the MoEFCC, but was denied.

“Instead of furnishing information as ordered by 30 April 2016, the public authority requested for two more months. The public authority did not honour its own commitment to furnish in that time and on 28 June they sought another extension, this time for 90 days. To furnish a copy of a report or to place the agenda and minutes of the GEAC (Genetic Engineering Approval Committee) meeting, they need no time at all. They are just asking for time though they do not require it,” information commissioner M. Sridhar Acharyulu noted in his order.

He also held that there appears “to be no seriousness in seeking extension” and the environment ministry is “routinely asking for extension without specifying the period”.

In his order, Acharyulu said that the information sought is of “high public importance, concerning public health, and it should have been in (the) public domain”.

“Public authority is attempting to keep vital information out of public discussion. It amounts to prevention of constitutionally guaranteed freedom of speech and expression of the appellant, who are interested in discussing the pros and cons of GMOrelated issues of GM mustard, which if permitted would cause serious impact on the public health of consumers on a large scale,” he said.

From Published Accounts

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Section A: Disclosures regarding adoption of Ind AS and pursuant adjustments carried out

Compilers’ Note
As per the roadmap issued by the Ministry of Company Affairs (MCA), listed and other companies with a net worth of over Rs. 500 crore (as on 31st March 2014) have to adopt ‘Ind AS’ set of standards as notified by the Companies (Indian Accounting Standards) Rules, 2015 as amended by Companies (Indian Accounting Standards) Amendment Rules, 2016.

To overcome the initial problems likely to faced by companies on Ind AS implementation, SEBI has also vide Circular dated 5th July 2016 given certain exemptions from disclosures for Q1 and Q2 results for companies who have to adopt Ind AS.

Given below are disclosures by 2 large listed companies for the quarter ended 30th June 2016 who have adopted Ind AS.

Reliance Industries Ltd
Transition to Ind-AS:
The Company has adopted Ind AS with effect from 1st April 2016 with comparatives being restated. Accordingly the impact of transition has been provided in the Opening Reserves as at 1st April 2015 and all the periods presented have been restated accordingly.

RECONCILATION OF PROFIT AND RESERVE BETWEEN IND AS AND PREVIOUS INDIAN GAAP FOR EARLIER PERIOD AND AS AT MARCH 31, 2016

Notes:
I. Change in accounting policy for Oil & Gas Activity – From Full cost method (FCM) to Successful Efforts Method (SEM): The impact on account of change in accounting policy from FCM to SEM is recognised in the Opening Reserves on the date of transition and consequential impact of depletion and write offs is recognised in the Profit and Loss Account. Major differences impacting such change of accounting policy are in the areas of;

– Expenditure on surrendered blocks, unproved wells, abandoned wells, seismic and expired leases and licenses which has been expensed under SEM.

– Depletion on producing property in SEM is calculated using Proved Developed Reserve, as against Proved Reserve in FCM.

II. Fair valuation as deemed cost for Property, Plant and Equipment: The Company and its subsidiaries have considered fair value for property, viz land admeasuring over 33000 acres, situated in India, with impact of Rs. 51,101 crore and gas producing wells in USA Shale region with impact of Rs.(-) 5,829 crore in accordance with stipulations of Ind AS 101 with the resultant impact being accounted for in the reserves. The consequential impact on depletion and reversal of impairment is reflected in the Profit and Loss Account.

III. Fair valuation for financial Assets: The Company has valued financial assets (other than investment in subsidiaries, associate and joint ventures which are accounted at cost), at fair value. Impact of fair value changes as on the date of transition, is recognised in opening reserves and changes thereafter are recognised in Profit and Loss Account or Other Comprehensive Income, as the case may be.

IV. Deferred Tax:
The impact of transition adjustments together with Ind AS mandate of using balance sheet approach (against profit and loss approach in the previous GAAP) for computation of deferred taxes has resulted in charge to the Reserves, on the date of transition, with consequential impact to the Profit and Loss account for the subsequent periods.

V. Others: Other adjustments primarily comprises of:
a. Attributing time value of money to Assets Retirement Obligation: Under Ind AS, such obligation is recognised and measured at present value. Under previous Indian GAAP it was recorded at cost. The impact for the period subsequent to the date of transition is reflected in the Profit and Loss account.

b. Loan processing fees / transaction cost: Under Ind AS such expenditure are considered for calculating effective interest rate. The impact for the periods subsequent to the date of transition is reflected in the Profit and Loss account.

Tech Mahindra Ltd
The Company has prepared its first Ind AS compliant Financial Statements for the periods commencing April 1, 2016 with restated comparative figures for the year ended March 31, 2016 in compliance with Ind AS. Accordingly, the Opening Balance Sheet, in line with Ind As transitional provisions, has been prepared as at April 1, 2015, the date of company’s transition to Ind AS. In accordance with Ind AS 101 First-time Adoption of Ind AS, the Company has presented a reconciliation from the presentation of financial statements under Accounting Standards notified under the Companies (Accounting Standards) Rules, 2006 (“Previous GAAP”) to equity under Ind AS as at March 31, 2016, June 30, 2015 and April 1, 2015 and of the total comprehensive income for the quarter ended June 30, 2015.

The principal adjustments made by the Company in restating its “Previous GAAP” statement of profit and Loss for the quarter and year ended March 31, 2016 and quarter ended June 30, 2015 are as mentioned below:

Footnotes to the reconciliation between “Previous GAAP” and Ind AS.

i) Fair Value Through Other Comprehensive Income (FVTOCI) Financial assets:
Under “Previous GAAP”, the Group accounted for long term investments in unquoted and quoted equity shares as investment measured at cost less provision for other than temporary diminution in the value of investments. Under Ind AS, the Group has designated such investments (other than subsidiary and associate) as FVTO CI investments. Ind AS requires FVTO CI investments to be measured at fair value. Due to difference between the investments fair value and “Previous GAAP” carrying amount, total comprehensive income has been increased by an amount of Rs.1160 Lakh for quarter ended June 30, 2015 and decreased by an amount of Rs.2785 Lakh and Rs.546 Lakh for quarter and year ended March 31, 2016 respectively.

The Group, under the “Previous GAAP” had made provision for diminution in value of quoted investments in earlier years, now since investments are accounted at fair value, provision for diminution, no longer required has been reversed by the company and corresponding effect has been given by crediting retained earnings Rs. 2515 Lakh as at transition date. During the quarter ended June 2015, company had already reversed the amount of provision for diminution in value of quoted investment of Rs.2435 Lakh in “Previous GAAP” financials and on reversal on transition date, the profit under Ind As has been decreased by an amount of Rs.2435 Lakh for quarter ended June 30, 2015 and year ended March 31, 2016.

ii) Share based payments:
Under “Previous GAAP”, the Group recognised stock compensation cost based on intrinsic value method. Ind AS 102, Share-based Payment, requires compensation cost to be recognised on fair value as at grant date to be determined using an appropriate pricing model over the vesting period. Accordingly, profit has been decreased (excess of cost determined on fair value basis over intrinsic value basis) by an amount of Rs.1051 Lakh, Rs.860 Lakh and Rs.3269 Lakh for quarter ended June 30, 2015, quarter and year ended March 31, 2016 respectively.

iii) Foreign currency translations:
In “Previous GAAP”, fixed assets of integral foreign operations were carried at historical exchange rate and now in accordance with Ind AS 21, Property, Plant and Equipment of integral foreign operations has been restated at closing rate and other comprehensive income has been increased by an amount of Rs.149 Lakhs, Rs.600 Lakh and Rs.600 Lakh for quarter ended June 30, 2015, quarter and year ended March 31, 2016 respectively.

iv) Fair Value Through profit or loss in respect of Financial assets:
Under “Previous GAAP”, the company accounted for current investment in mutual funds on the basis of cost or Net realizable value whichever is lower. Ind AS requires the same to be measured at fair value. Accordingly, current investment in mutual funds have been measured at fair value and profit has been decreased by an amount of Rs, 91 Lakh for quarter ended June 30, 2015 and increased by an amount of Rs.167 Lakh and Rs.230 Lakh for quarter and year ended March 31, 2016.

v) Deferred tax:
Certain translation adjustments lead to temporary differences and accordingly, the group accounted for deferred tax, as applicable on such differences. Deferred tax adjustments are recognised in correlation to the underlying transaction either in retained earnings or a separate component of equity.

These adjustments have resulted in decrease in profit by an amount of Rs. 435 lakh and Rs.2349 Lakh for quarter ended June 30, 2015 and March 31, 2016 respectively and increased by an amount of Rs. 4183 Lakh for year ended March 31, 2016.

Tax adjustments are primarily on account of deferred taxes recognised for undistributed earnings of subsidiaries.

vi) Other Comprehensive Income:
Under the “Previous GAAP”, the Group has not presented other comprehensive income (OCI) separately. Now, under Ind AS, actuarial gain/loss on defined benefit liability, effective portion of cash flow hedges (amounting to loss of Rs.14984 Lakh for quarter ended June 30, 2015 and gain of Rs.10890 Lakh and Rs.11741 Lakh for quarter and year ended March 31, 2016 respectively) and currency translation reserve has been shown separately and routed through OCI.

Corporate Law Corner

1.  Jella Jagan Mohan
Reddy, In re

(2017) 82 taxmann.com 422 (NCLT – Hyd.)               

Date of Order: 5th June, 2017

Sections 211, 621A of Companies Act, 1956 read with Schedule
VI – Incorrect disclosure of Issued Capital in the Balance Sheet of the Company
was in violation of section 211 – The submission that there was no prejudice
caused to the members, creditors or public did not hold good – The application
for compounding was accordingly dismissed

FACTS

JCo was incorporated on 14.11.2006 as a private limited
company and was converted to a public company on 12.01.2009 under Companies
Act, 1956 (the Act). The Office of Regional Director carried out an inspection
of books of accounts of JCo for the years 2006-07 to 2012-13 and found that it
had violated provisions of section 211(1) read with Schedule VI of the Act. The
Balance Sheet of JCo as at 31.03.2009 disclosed the Issued Capital as Rs. 84.41
crore instead of Rs. 100 crore. The same allegedly resulted in a disclosure of
false particulars in the said Balance Sheet.  

JCo admitted to the default and submitted that the same was
not intentional and that it was of a nature that did not prejudice interest of
members, creditors or others dealing with the company. JCo further pleaded that
the default did not in any way affect the public interest. JCo therefore filed
an application u/s. 621A for compounding of offence.

ROC highlighted that JCo did not mention how the offence was
made good and therefore be put to strict proof of
the same.   

HELD

The Tribunal observed that it had the necessary power to
compound the offence as was established under Cambridge Technology Enterprises
Ltd., In re (2017) 77 taxmann.com 270 (NCLT – Hyd.). The Tribunal
observed that the Balance Sheet of JCo as at 31.03.2008 disclosed its Issued
capital as Rs. 106.41 crore whereas the same was reflected as Rs. 84.41 crore
in the Balance Sheet as at 31.03.2009. There was no mention of any reduction
being carried out in any of the Balance Sheets of JCo. Both the Balance Sheets
were signed by two whole-time directors of the Company, its Company Secretary
and reputed firm of Chartered Accountants.

The Tribunal further observed that the Balance Sheet was an
important financial statement used by the stakeholders for various purposes.
The factual error therein was not in accordance with section 211(1) of the Act
in as much as “True & Fair view” was not depicted in the Balance
Sheet, thereby resulting in disclosure of false particulars of Issued Capital.
In light of the aforesaid observations, it was held that the submission that
the error did not cause any prejudice to the creditors or members does not hold
good and the Tribunal proceeded to dismiss the application for compounding.

2. Hasmukh Bachubhai Baraiya
vs. Symphony Ltd.

(2017) 82 taxmann.com 420
(NCLT – Ahd.)                               

Date of Order: 26th April,
2017

Sections 56, 58 and 59 of Companies Act, 2013 – Tribunal
does not have power to issue directions for issue of duplicate share
certificate – The dispute as to title of shares has to be heard by a Civil
Court and the National Company Law Tribunal (NCLT) does not have the authority
to decide upon the same.

FACTS

H, a shareholder of SCo, a listed public company, alleged
that he misplaced the share certificates of the company. H made a request to
the share transfer agent of SCo for issue of duplicate share certificates
through a letter dated 11.09.2015. Subsequent letters were written to the Share
transfer agent on 07.10.2015 and 02.11.2015 for the same purpose. H visited the
office of Share transfer agent on 15.10.2015 and the office of SCo on
16.10.2015 and produced the relevant documents for verification in respect of
application for issue of duplicate share certificates. Upon failure of SCo and
Share transfer agent to issue the duplicate share certificate, H filed an
application before the NCLT under sections 56, 58 and 59 pleading it to issue
directions for issue of duplicate share certificate.

There was another Party who contested the ownership of the
shares in question stating that the same were acquired by him in the year 1997.
The said Party also sent the transfer deeds to the Share transfer agent but was
not issued the share certificates because there was a deficit in payment of
stamp duty. This claim of ownership by the Party has been disputed by H.

The Party had filed a civil suit to establish its case for
ownership and the said suit was pending in the Civil Court. SCo directed H and
Party to settle their dispute or produce an order from a Competent Court of
law.

HELD

Tribunal held that relief u/s. 58 was not available to H
since it was not his case that SCo refused to register his name in the register
of members.

Section 59 deals with rectification of Register of Members if
the name of any person is without sufficient cause entered into the Register of
members of a Company or without sufficient cause omitted the name of a Member
from the Register of Members or in case where a default was made or unnecessary
delay was made in making entry in the Register of Members. As the case of H did
not fall under any of the said categories, relief u/s. 59 was also held to be
not available to H.

Upon examining the provisions of section 56, the Tribunal
observed that where the instrument of transfer had been lost, the power to
issue duplicate shares was available with the Board of the Company. There was
nothing in section 56 which indicated that the Tribunal can give a direction to
the Company to issue duplicate shares.

The Tribunal proceeded to state that there was no specific
provision under the Companies Act, 2013 or rules framed thereunder which gave
it the authority to issue directions to a company for issue of duplicate
shares. When the Statute creates a right to obtain duplicate shares upon
satisfying the Board of a company about loss of shares and when the Board did
not exercise its discretion in the manner in which it is expected to exercise,
then the judicial authorities or quasi- judicial authorities are certainly
entitled to give appropriate directions.

It however observed that although H alleged that shares were
misplaced, he did not specify when they were misplaced. H did not inform the
Police about misplacement of shares either at the time when they were misplaced
nor when the Party contested his claim for ownership of the shares.

Also, in the aforesaid case, the challenge involved a dispute
as to title of the shares. The Tribunal dismissed the Petition by observing
that such title disputes could not be decided by it and only a Civil Court had
the jurisdiction to decide upon the same.

3.  Himalay Dassani vs.
Isolux Corsan India Engineering & Construction (P.) Ltd.

(2017) 82 taxmann.com 143 (NCLT-Chd.)

Date of Order: 8th May, 2017

Section 9 of Insolvency and Bankruptcy Code, 2016 – Where an
application was already filed u/s. 9 against the subsidiary of Corporate Debtor
for recovery of debt, parallel proceedings on the same cause of action could
not be initiated against the Corporate Debtor.

FACTS

ICo being the respondent was incorporated on 25.06.2008. ICo
availed consultancy service of H (being the operational creditor) in respect of
awarding of a project for developing and executing the transmission system at
Mainpuri and associated works on a build, own, operate and transfer (BOOT)
basis. ICo entered into a Service Agreement for the same with H on 08.07.2010
by virtue of which it agreed to pay a consultancy fee of Rs. 84 crore plus
applicable taxes in respect of the services to be rendered by H. The amount was
payable within 120 days of signing the agreement or upon financial closure of
project; whichever was later. H alleged that final financial closure of the
project took place on 1.5.2014.

On 15.03.2016, ICo entered into a Final Settlement and
Consultancy Agreement dated 15.03.2016 (Final Settlement Agreement) in order to
fully and finally settle its claims and dues with H. H alleged that the same
was done fraudulently and without an intention to honour the obligations. In
terms of Final Settlement Agreement, SCo, a subsidiary of ICo had undertaken to
pay H a sum of Rs. 38 crore along with applicable taxes in full and final
settlement of amount due by ICo. H filed a petition before Allahabad Bench of
NCLT in order to take recourse against SCo u/s. 9 of the Code for payment of
sum of Rs. 59.2 crore due in terms of Final Settlement Agreement. H
subsequently filed an application before this Tribunal u/s. 9 of the Code for
recovering an amount of Rs 96.6 crore.

HELD

The Tribunal observed that there were two different amounts
recorded as payable in respect of the same service rendered by H. The date of
default in the present application was stated to be 1.5.2014, whereas before
the Allahabad Bench, the date of default against SCo was 15.03.2016. Thus, the
Tribunal held that there was a dispute so far as the ICo is concerned, and
hence, the present petition u/s. 9 could not be admitted.

The Tribunal further held that as H had alleged fraud and
inducement on part of ICo and there was a counter defence to the same by ICo;
the existence of dispute could not be ruled out. Final Settlement Agreement did
not have a provision that if the payment was not honoured, H would be entitled
to fall back on the original agreement of the year 2010.

The said recourse was further denied as H had already
commenced the proceedings against SCo.

As the Final Settlement Agreement was already in
place with SCo and proceedings for default under the same were already
initiated, the application was dismissed by the Tribunal and a cost of Rs.
50,000 was imposed upon H.

Glimpses of Supreme Court Rulings

14. Capital Gains – Cost of Acquisition – Value as on
1-4-1974 – High Court not to interfere with the finding of fact by the Tribunal
unless the same is palpably incorrect and therefore perverse – Assessing
Officer and Commissioner of Income Tax valued the land at Rs. 2 or 3 per sq.
yard while the Tribunal determined the value at Rs.150/- per sq. yard which
finding was reversed by the High Court.

Ashok Prapann vs. CIT (2016) 389 ITR 462 (SC)

The assessment year in question was 1989-90. The Assessee has
been subjected to payment of income-tax on capital gains accruing from land
acquisition compensation and sale of land. It was not in dispute that the land
in question was sold for Rs.150/- per sq. yard. The dispute was as to how the
cost of acquisition was to be worked out for the purposes of deduction of such
cost from the receipts so as to arrive at the correct quantum of capital gains
exigible to tax under the Income-tax Act, 1961 (for short “the Act”).
The Assessing Officer as well as the first appellate authority took into
account the declaration made in the return filed by the Assessee under the
Wealth-tax Act (Rs. 2 per square yard) in respect of the very plot of land as
the cost of acquisition. Some instances of comparable sales showing higher
value at which such transactions were made (Rs. 70 per square yard) were also
laid by the Assessee before the Assessing Officer. The same were not accepted
on the ground that such sales were subsequent in point of time, i.e., 1978-79
whereas u/s. 55(2) of the Act the crucial date for determination of the cost of
acquisition was April 1, 1974.

The learned Tribunal took the view that the comparable sales
could not altogether be ignored. Therefore, though the comparable sales were at
a higher value of Rs. 70 per square yard, the learned Tribunal thought it
proper to determine the cost of acquisition at Rs. 50 per square yard. In the
second appeal, the High Court exercising jurisdiction u/s. 260A of the Act
reversed the said finding.

The Supreme Court observed that a declaration in the return
filed by the Assessee under the Wealth-tax Act would certainly be a relevant
fact for determination of the cost of acquisition which u/s. 55(2) of the Act
to be determined by a determination of fair market value. Equally relevant for
the purposes of aforesaid determination would be the comparable sales though
slightly subsequent in point of time for which appropriate adjustments can be
made as had been made by the learned Tribunal (from Rs. 70 per square yard to
Rs. 50 per square yard). The Supreme Court held that comparable sales, if
otherwise genuine and proved, could not be shunted out from the process of
consideration of relevant materials. The same had been taken into account by
the learned Tribunal which is the last fact finding authority under the Act.
Unless such cognizance was palpably incorrect and, therefore, perverse, the
High Court should not have interfered with the order of the Tribunal. According
to the Supreme Court, the order of the High Court overlooked the aforesaid
severe limitation on the exercise of jurisdiction u/s. 260A of the Act.

The Supreme Court further noted that apart from the above, it
appeared that there was an on-going process under the Land Acquisition Act,
1894 for determination of compensation for a part of the land belonging to the
Assessee which was acquired [39 acres (approx.)]. The reference court enhanced
the compensation to Rs. 40 per square yard. The above fact, though subsequent,
would not again be altogether irrelevant for the purposes of consideration of
the entitlement of the Assessee. However, as the determination of the cost of
acquisition by the learned Tribunal was on the basis of the comparable sales
and not the compensation awarded under the Land Acquisition Act, 1894 (the
order awarding higher compensation was subsequent to the order of the learned
Tribunal) and the basis adopted was open for the learned Tribunal to consider,
the Supreme Court was of  the view that
in the facts of the present case, the High Court ought not to have interfered
with the order of the learned Tribunal.

Consequently and taking into account all the reasons stated
above, the Supreme Court allowed the appeal. The order of the High Court was
set aside and that of the learned Tribunal was restored.

15. Cost of Construction – Reference to the Department
Valuation Officer though made in 1997 was valid in view of insertion of section
142A by Finance (No.2) Act, 2014 w.r.e.f. 15-11-1972 and subsequent amendments,
as the assessment had not become final and conclusive because appeal filed by
Revenue u/s. 260A was pending before the High Court but the order of the High
Court not interfered with in view of the finding recorded by the Tribunal that
local Public Work Department rates are to be applied and adopted in place of
Central Public Works Departments rates.

CIT vs Sunita Mansingha (2017) 393 ITR 121

The proceedings for block assessment year 1997-98 were
initiated against the Respondents as a result of search conducted at the
residence of assessee u/s. 132 of the Act on 24.3.1997. The Assessing Officer inter
alia
found that the assessee had half share in a farm house cum swimming
pool and she owned a residential House at 13-37, Shastri Nagar, Bhilwara. The
said properties were referred to the Departmental Valuation Officer (DVO) for
valuing the cost of construction. By a report dated 2.6.1997, the cost of farm
house was determined at Rs.23,54,200 as against Rs.5,82,600 declared as cost of
construction. The 50% difference in the cost of construction, which worked out
at Rs.8,81,300 was added to income of the assessee as income from undisclosed
sources. Similarly, an addition of Rs.12,19,145 was made on account of
undisclosed investment in cost of construction of house at Shastri Nagar as per
the report of DVO.

The Commissioner of Income-tax (Appeals) sustained the
addition to the tune of Rs.2,56,691 on account of alleged unexplained
investment in the construction of residential house at Shastri Nagar, Bhilwara.
The Tribunal deleted the entire amount added by the Assessing Officer.

A question was raised before the High Court regarding
deletion of addition on account of unexplained investment in construction of
house property on the basis of reference to Departmental Valuation Officer. The
High Court noted that no question was raised regarding deletion of addition of
Rs.8,81,300 though the same had been deleted for the same reason.

The High Court, following the decision of Supreme Court in Smt.
Amiya Bala Paul vs. CIT
(2003) 262 ITR 407 (SC), held that the Assessing
Officer could not have made addition of certain amount by way of unexplained
investment in construction of immovable property namely residential house
situated at Bhilwara and farm house situated at Atun on the basis of valuation
report obtained by referring the issue to DVO, as no power existed under the
Act of making such a reference. 

The Supreme Court observed that even though the Tribunal had
held that the reference to the Departmental Valuation Officer in question was
not valid, in view of the decision of the Supreme Court in the case of Smt.
Amiya Bala Paul vs. CIT (supra),
it had also held that it was a settled
principle of law that in place of Central Public Works Department rates, local
Public Works Department rates were to be applied and adopted to determine the
cost of construction.

The Supreme Court held that in view of the fact that section
142A was inserted by the Finance (No. 2) Act, 2004 (23 of 2004) w.r.e.f. 15th
November, 1972 and subsequently again substituted by the Finance Act, 2010 (14
of 2010) w.e.f. 1st July, 2010 and the Finance (No. 2) Act, 2014 (25
of 2014) w.e.f. 1st October, 2014, as the proviso to sub-section (3)
of section 142A as it existed during the relevant period, reference to the
Departmental Valuation Officer could have been made because assessment in the
present case had not become final and conclusive because the appeal preferred
by the Revenue u/s. 260A of the Income-tax Act, 1961 was pending before the
Rajasthan High Court.

However, in view of the finding recorded by the Tribunal that
the local Public Works Department rates were to be applied and adopted in place
of Central Public Works Department rates, the Supreme Court did not find any
good ground to interfere in the impugned judgment on this issue on merits. The
appeal was thus dismissed.

16. Capital or Revenue Expenditure – Interest and other
expenditure towards creation of assets is revenue expenditure and is to be
allowed as deduction in the year it is incurred though capitalized in the
books.

CIT vs. Shri Rama Multi Tech Ltd. (2017) 393 ITR 371 (SC)

For the assessment year 2000-01, the Respondent, a public
limited company, had incurred an expenditure of Rs.3,37,84,348 towards payment
of interest on loans taken and other items for setting up the industry. Even
though it had capitalised the said amount and claimed depreciation before the
assessing authority, however, in appeal, the Respondent raised additional
ground claiming deduction of the aforesaid amount on interest paid with some
other expenditure on other items connected therewith as revenue expenditure.

The Commissioner of Income-tax (Appeals) vide order dated
March 5, 2004, allowed the claim of the Respondent-Assessee only to the extent
of interest amount of Rs. 2,92,45,670 paid on loans taken by it for
establishing the industry. He, however, disallowed the other expenditures,
namely, financial charges, professional expenses, upfront fee, etc.

The Revenue, feeling aggrieved by the said allowance,
preferred an appeal before the Income-tax Appellate Tribunal which vide order
dated December 2, 2004 upheld the order of the Commissioner of Income-tax
(Appeals) in so far as it related to the allowance of the expenditure claimed
towards payment of interest and also allowed expenditure on other items connected
therewith. The High Court did not interfere in the appeal preferred by the
Revenue on the ground that the Tribunal has followed the decision of the
Gujarat High Court in the case of Deputy CIT vs. Core Healthcare Ltd.
[2001] 251 ITR 61 (Guj).

Feeling aggrieved, the Commissioner of Income-tax has
preferred appeal before the Supreme Court.

The Supreme Court noted that it had in the case of Deputy
CIT vs. Core Health Care Ltd.
[2008] 298 ITR 194 (SC) had affirmed the view
taken by the Gujarat High Court.

In this view of the matter, the Supreme Court held that the
Income-tax Appellate Tribunal was justified in allowing the expenditure of Rs.
3,37,84,348 towards the interest paid on the loans taken and expenditure on
other items connected therewith for establishment of the unit, while affirming
the order of the Commissioner of Income-tax (Appeals).

Learned Counsel for the Revenue-Appellant submitted before
the Supreme Court that the Respondent cannot claim depreciation on the amount
of interest which has been allowed as revenue expenditure and therefore, the depreciation referable to such interest expenditure be reversed.

Learned Counsel for the Respondent however, submitted that
there was nothing on record to show that depreciation on this amount had been
taken by the Respondent.

The Supreme Court, in view of the aforesaid contentions,
directed that if as a fact the Respondent has taken any depreciation on the
amount of interest and other items which has been allowed as revenue
expenditure, that much depreciation should be reversed by the assessing
authority.

Subject to the aforesaid observations, the appeals were
dismissed.

17.  Capital Gains –
Slump Sale – Section 50 (2) applies to a case where any block of assets are
transferred by the Assessee but where the entire running business with assets
and liabilities is sold by the Assessee in one go, such sale could not be
considered as “short-term capital assets”.

CIT vs. Equinox Solution Pvt. Ltd. (2017) 393 ITR 566 (SC)

The Respondent-Assessee was engaged in the business of
manufacturing sheet metal components out of CRPA & OP sheds at Ahmedabad.
The Respondent decided to sell their entire running business in one go. With
this aim in view, the Respondent sold their entire running business in one go
with all its assets and liabilities on 31.12.1990 to a Company called
“Amtrex Appliances Ltd.” for Rs. 58,53,682/-.

The Respondent filed their income tax return for the
Assessment Year 1991-1992. In the return, the Respondent claimed deduction u/s.
48 (2) of the Act as it stood then by treating the sale to be in the nature of
“slump sale” of the going concern being in the nature of long term
capital gain in the hands of the Assessee.

The Assessing Officer did not accept the contention of the
Assessee in claiming deduction. According to the Assessing Officer, the case of
the Assessee was covered u/s. 50 (2) of the Act because it was in the nature of
short term capital gain as specified in section 50 (2) of the Act and hence did
not fall u/s. 48 (2) of the Act as claimed by the Assessee. The Assessing
Officer accordingly reworked the claim of the deduction treating the same to be
falling u/s. 50 (2) of the Act and framed the assessment order.

The Assessee, felt aggrieved, filed appeal before the CIT
(Appeals). The Commissioner of Appeals allowed the Assessee’s appeal insofar as
it related to the issue of deduction. He held that when it was an undisputed
fact that the Assessee has sold their entire running business in one go with
its assets and liabilities at a slump price and, therefore, the provisions of
section 50 (2) of the Act could not be applied to such sale. He held that it
was not a case of sale of any individual or one block asset which may attract
the provisions of section 50 (2) of the Act. He then examined the case of the
Assessee in the context of definition of “long term capital gain” and
“short term capital asset” and held that since the undertaking itself
is a capital asset owned by the Assessee nearly for six years and being in the
nature of long term capital asset and the same having been sold in one go as a
running concerned, it cannot be termed a “short terms capital gain”
so as to attract the provisions of section 50 (2) of the Act as was held by the
Assessing Officer. The CIT (Appeals) accordingly allowed the Assessee to claim the deduction as was claimed by them before the Assessing Officer.

The Revenue felt aggrieved of the order of the CIT (Appeal),
and filed an appeal before the Income Tax Appellate Tribunal. The Tribunal
concurred with the reasoning and the conclusion arrived at by the Commissioner
of Appeal and accordingly dismissed the Revenue’s appeal.

The Revenue, felt aggrieved of the order of the Tribunal, and
carried the matter to the High Court in further appeal u/s. 260-A of the Act.
By impugned order, the High Court dismissed the appeal holding that the appeal
does not involve any substantial question of law within the meaning of section
260-A of the Act.

It was against this order that the Revenue felt aggrieved and
carried the matter to the Supreme Court in appeal by way of special leave.

The Supreme Court held that no fault could be found in the
reasoning and the conclusion arrived at by the CIT (Appeals) in his order
which, according to the Supreme Court was rightly upheld by the Tribunal and
then by the High Court and called for no interference by it.

According to the Supreme Court, the case of the Respondent
(Assessee) did not fall within the four corners of section 50 (2) of the Act.
Section 50 (2) applies to a case where any block of assets are transferred by
the Assessee but where the entire running business with assets and liabilities
is sold by the Assessee in one go, such sale could not be considered as
“short-term capital assets”. In other words, the provisions of
section 50 (2) of the Act would apply to a case where the Assessee transfers
one or more block of assets, which he was using in thw running of his business.
Such was not the case here because in this case, the Assessee had sold the
entire business as a running concern.

The Supreme Court drew
support with the law laid down by it in Commissioner of Income Tax, Gujarat
vs. Artex Manufacturing Co
. 1997 (6) SCC 437 and in Premier Automobiles
Ltd. vs. Income Tax Officer and Anr.
264 ITR 193

The Supreme Court did not find any merit in the
appeal and was accordingly dismissed.

From The President

Dear Members,

“The achievement we celebrate today
is but a step, an opening of opportunity, to the greater triumphs and
achievements that await us. Are we brave and wise enough to grasp this
opportunity and accept the challenge of the future?”
These words
of Jawaharlal Nehru at midnight on 14th August 1947 still hold
tremendous truth and remain valid even today. As India celebrated its 70 years
of Independence, the citizens have much to be proud of and can look to a future
that is radiant with opportunity.

 

Prime Minister Narendra Modi
re-echoed this optimism as he spoke from the ramparts of the 17th
century Red Fort in New Delhi. In his fourth Independence Day address to the
Nation, he called upon the citizens of India to build a New India that
will be free from the shackles of caste and religion…where terrorism and
corruption will be defeated and people will have access to better standard of
living. His speech reflected his vision for a New India…where people
will come together to realize the dreams of youth, women and farmers…where shanti,
ekta
and sadbhavana shall flourish.

 

The PM stressed that we need to
work with determination, in an environment where all are equal…no one is big
or small. To accelerate ahead on the path of development, he said we need to
give up the “chalta hai” attitude and be driven by “badal
sakta hai”
. He emphasized in the past it was the “Bharat Chhodo”
for freedom…today it is “Bharat Jodo” for a New India!

 

From enumerating his high
expectations from the people of India, PM Modi went on to explain what the
government and he were working on to transform India. Good governance
remains a priority but with greater speed and simplification of processes. The
fight against corruption has been initiated and is expected to continue relentlessly.
Technology, he promised is increasingly being used to harness and track
corruption as well as to facilitate greater transparency in all government
actions. The PM explained how his government is working with universities to
expand their operations. In the last three years his government has been
instrumental in setting up six IITs, seven IIMs and eight IIITs. In addition to
education, the focus is also on more affordable and widespread availability of
critical medical facilities besides capping of prices of vital drugs. 

 

At the macro level too, there is
change. The PM talked of cooperative federalism and competitive federalism in
which the Centre and the State now work more closely together. The Centre is
now lending a helping hand to the States in implementing policies such as: GST,
Swachh Bharat Abhiyaan, Smart Cities and Ease of Doing Business.

 

The PM’s speech clearly mirrors
India – a young nation, comprised of yuva shakti that is already
growing fast, but poised to grow a lot faster. The government has embarked on
several initiatives to step up the pace of the economy.

 

Ganesh Chaturthi is an auspicious
time when the Lord removes obstacles and paves the way for progress and
happiness. And by a happy coincidence, the Supreme Court delivered a landmark
ruling which elevates privacy to a fundamental right and declares that it is
intrinsic to right of life and personal liberty. What’s remarkable is this that
the largest bench of the SC was ever constituted…and that the nine-member
bench was unanimous in their verdict. This ruling is probably the finest in the
history of the Court but is likely to set open a Pandora’s box of cases and
legislations.

 

The absolute right to privacy
resides in Article 21 and other fundamental freedoms contained in the Constitution.
But for long they have remained obscured from public attention. It was the
petition challenging the Aadhaar project that provided the spark for this
judgement. Overturning a 63-year old verdict, this historic 547 pages ruling
boldly demarcates the limits of the state’s intervention in the lives of
citizens. Coming on the back of India’s 71st Independence Day, the
Right to Privacy, I hope, will open a new era of freedom and well-being for the
citizens of India.

 

Disruption appears to be a negative
word, but in the world of technology it appears to be the guiding force.
Researchers are constantly seeking ways to innovate by upsetting the applecart.
Participants at the ITF Conference in Pune last month organised by the Society,
were taken down the ‘road not taken’ and shown how technology is re-inventing
our world and lives. Keynote speaker, Mr. Ravi Pandit, CEO, KPIT Technologies
and a CA too, shared how cutting-edge technologies in robotics, nanotech,
genetics, software, computers and sensors are disrupting the normal.

 

Another vital facet was the rapid
proliferation of technology. He traced how it took 119 years for spindles to
reach the 50 million mark, TV happened a lot faster with 50 million users in
just 30 years. Internet spread much faster, getting 50 million users in just 4
years. Jio was exceptional, got 50 million users in 83 days! Clearly change is
here to ‘stay’ so let’s keep pace!

 

“Champions of Change” is a novel
initiative of NITI Aayog, the government’s think tank to spark innovative ideas
of change. This two-day deliberation of around 200 young CEOs from all corners
of India was a platform for brainstorming; to chart out a blueprint for “New
India”
and drive Transformation across sectors. The young CEOs had a
unique opportunity to interact with each other as well as with secretaries and
cabinet ministers of various ministries. Among their many concerns were the
high number of regulators…they also questioned as to who evaluates the
performance of the regulators.

 

The young minds were divided into
six groups and were assigned an issue which is a challenge for policy making.
The issues included: world-class infrastructure, reforming financial sector,
doubling farmer’s incomes, smart cities, Make in India and New India 2022. They
made their presentations to PM Modi, who told them, “You are my team, and we
need to work together to take India forward.” He urged them to adapt to change
as they work for the welfare of the people and the nation.

 

Clearly, the nation is heading for
even better times with abounding opportunities and enhanced stability. World
leaders, renowned economists and multinational heads have all reiterated the
vast potential and immense optimism they believe India possesses. To help us
chart our way ahead we return to the question that Pandit Nehru posed at the
dawn of India’s independence…“Are we brave and wise enough to grasp this
opportunity and accept the challenge of the future?”

 

The festive
season has set in. Hope you enjoyed the Ganpati Festival. Wishing you a Happy
Dussehra in advance!!

 

Feel free to write to me on
president@bcasonline.org

 

With kind regards,

 

 

 

CA. Narayan Pasari

President

Allied Laws

Doctrine of Merger – Dismissal of
appeal by High Court – Thereafter, Tribunal’s order merged with High Court’s
Order.

Ratnadip Shipping Pvt.
Ltd. vs. Commr. of Cus. (General) 2017 (345) E.L.T. 148 (Trib. – Mum)

The only issue in the
present case was whether the Revenue could file a Miscellaneous application for
the implementation of the Tribunal’s order after it had filed an appeal to the
High Court which was dismissed.

The Tribunal held that the
Tribunal’s order stood merged with the Hon’ble High Court’s order. After the
Hon’ble High Court’s order, this Tribunal cannot pass any order for
implementation as the Hon’ble High Court’s order is
in force and this Tribunal has no jurisdiction to pass any order after the
Hon’ble High Court’s order. Therefore, the present miscellaneous application
has become infructuous, hence dismissed.

Foreign Court – Order executable
under the Civil Procedure Code. [Code of Civil Procedure, 1908 – Sections 13,
35(3), and 44A]

Alcon Electronics Pvt.
Ltd. vs. Celem S.A. of FOS 34320 Roujan, France and Ors. AIR 2017 SUPREME COURT
1

In the present case, the
English Court dismissed the claims of the Appellant w.r.t. the ground raised of
infringement of rights of the Appellant and further directed it to pay the
costs of application to the Respondents. The Appellant agreed to pay the costs
and sought for some time.

When the Respondents filed
a petition for execution of the decree of the Foreign Court in India, the
Appellant opposed it in an application on the ground that the order of English
Court was not executable. The executing Court dismissed the same which was
confirmed by the High Court. Hence, the Appellant filed the present appeal before
the Supreme Court.

The Court analysed whether
an order passed by a foreign court fell within Exceptions to Section 13 of
Code. It observed that a “foreign judgement” is defined under section
2(6) as judgment of a foreign court. “Judgement” as per section 2(9)
of Code of Civil Procedure means the statement given by the Judge on the
grounds of a decree or an order. Order is defined u/s. 2(14) of Code of Civil
Procedure as a formal expression of any decision of the Civil Court which is
not a ‘decree’. Explanation 2 to section 44A(3) says “decree” with
reference to a superior Court means any ‘decree’ or ‘judgment’. As per the
plain reading of the definition ‘Judgement’ means the statement given by the
Judge on the grounds of decree or order and order is a formal expression of a
Court. Thus, “decree” includes judgement and “judgement”
includes “order”. On conjoint reading of ‘decree’, ‘judgement’ and
‘order’ from any angle, the order passed by the English Court falls within the
definition of ‘Order’ and therefore, it is a judgement and thus becomes a
“decree” as per Explanation to section 44A(3) of Code of Civil
Procedure.

It was held by the Supreme Court that in the case of the
judgment passed by the foreign court, Indian Courts are very much entitled to
address the issue for execution of the interest amount. The right to 8%
interest as per the Judgments Act, 1838 of UK can be recognised and as well as
implemented in India. Therefore, the Execution Petition filed by the
Respondents for execution of the order passed by the English Court was
maintainable under the relevant provisions.

Fundamental Duty – To safeguard the
public properties from illegalities – By every citizen. [Constitution of India;
Art. 51A; Bombay Police Act, 1951 – Section 33; Maharashtra Municipal
Corporations Act, 1949, Section 244; Maharashtra Prevention of Defacement of
Property Act, 1995, Sections 2, 3]

 

Suswarajya Foundation
vs. The Collector, Satara AIR 2017 (NOC) 521 (Bom.)(HC)

 

A PIL was filed w.r.t.
every town and city in the State of Maharashtra having a large number of
illegal banners/hoardings/posters, etc., displayed mainly by political
leaders/workers.

 

The definition of
‘Defacement’ as contained in the Maharashtra Prevention of Defacement of
Property Act, 1995 (The ‘Act’) to better understand the act is as under:

“S.2(b): ‘defacement’
includes impairing or interfering with the appearance or beauty, damaging
disfiguring, spoiling or injuring in any way whatsoever and the word
“deface” shall be construed accordingly;”

Section 3 of the Act also
provides for imprisonment of 3 months in case a person defaces any place open
to public view.

The Court held that the
citizens including political workers and leaders follow the mandate of Article
51A of the Constitution of India by safeguarding the public properties from
such illegalities.

Commenting on the duties
of citizens and political parties, the Court laid down the directions to be
followed as under:

  There
shall be a senior inspector who shall be responsible for the implementation of
the provisions of the Act.

  The
Officers or the Committees, as the case may be, shall be responsible for
expeditious removal of illegal hoardings, banners, flexes, temporary arches,
posters etc.

  The Senior Inspector of Police or the Officer
In-charge of the concerned local police station shall extend adequate police
protection and police help to the Municipal staff and Municipal officials while
taking action of removal of the illegal hoardings, banners etc.

  Minimum two armed constables shall accompany
the municipal officials and the staff at the time of removal of illegal
hoardings, banners, flexes, temporary arches, posters etc.;

  Even on receiving any oral information, the
officer-in-charge shall be under an obligation to take appropriate action.

  Anonymous complaints shall be entertained on
the toll free numbers. If the citizens find that no action is being taken on
the basis of the complaints made on toll free numbers, it will be open for them
to make a complaint in writing to the Nodal Officers of the Municipal
Authorities as well as the Nodal Revenue Officers of the State Government who
shall take action on the basis of such complaints;

The court thus provided
interim relief in the manner above in the case.

Gift Deed – Subsequent revocation of
the deed is void and invalid [Transfer of Property Act, 1882; Section 126].

Syamala Raja Kumari and
Ors. vs. Alla Seetharavamma and Ors.AIR 2017 HYDERABAD86

The only issue was whether
a gift deed transferred unconditionally in favour of someone can be revoked
subsequently?

One Mr. Narapa Reddy
executed a gift settlement deed in favour of the plaintiffs (his daughters) and
his wife out of love and affection. Under the said document, life interest
right was retained by the donor and after the death of donor, his wife was to
enjoy the property without any right of alienation till her death and
thereafter, the donees-plaintiffs could enjoy the property with absolute
rights. But subsequently, the donor executed a revocation deed by giving the
reason that the plaintiffs were not taking care of him and his wife and they
were not visiting his house and they had lost his confidence and so, he revoked
the gift settlement deed executed. The donor executed another revocation deed
wherein he mentioned that the plaintiffs obtained the gift settlement deed by
misrepresenting him. But the said fact is not mentioned in the earlier
revocation deed. Thereafter, the donor’s wife died.

Section 126 of the
Transfer of Property Act was reproduced to show that the donor and donee may
agree that on the happening of any specified event which does not depend on the
Will of the donor, a gift shall be suspended or revoked; but a gift, which the
parties agree shall be revocable wholly or in part, at the mere will of the
donor, is void wholly or in part, as the case may be.

The Court held that the
plaintiffs would get absolute rights in respect of the property. By executing
the said gift settlement deed, the donor had divested his right in the property
so he could not unilaterally execute any revocation deed for revoking the gift
settlement deed executed by him in favour of the plaintiffs.

The revocation deeds
executed by the donor were not binding on the plaintiffs as the said deeds were
not valid. Once the donor had no right to revoke the gift settlement deed
validly executed by him in favour of the plaintiffs, he cannot alienate the
property.

Succession – Class I legal heir to
have a better title than the nominee – Absence of Will paved way for following
the course of succession over the rules of nomination. [Hindu Succession Act,
Chapter IV, Schedule u/s. 8]

Sham Singh vs. Kashmir
Kaur and Ors. AIR 2017 (NOC)473(P.&H.)

The husband of the plaintiff
namely Darshan Singh (deceased) had deposited a sum of Rs. 50,000/- in the post
office of Village Tibber, under Kisan Vikas Patra Scheme. Appellant-defendant
No. 1 (Sham Shingh), who was the son of the real sister of Darshan Singh
(deceased) had withdrawn Rs. 1 lakh on maturity of the said Kisan Vikas Patra
scheme from the post office. It was pleaded by the plaintiff-respondent i.e.
widow of the depositor, that Sham Singh was not entitled to and had no right to
withdraw the amount.

The court observed that
where the Will propounded by the appellant is concerned, the same has not been
brought on record of this case by the appellant nor any evidence to prove the
execution of the said Will, has been produced.

The Court ultimately held
that even though appellant-defendant was appointed as a nominee by
deceased-Darshan Singh, it is a settled principle of the law that the
nomination cannot alter the course of succession as per the provisions of Hindu
Succession Act.

The nomination only
indicates the hand which is authorised to receive the amount on payment of
which the post office was to get a valid discharge of its liability but the
legal heirs of deceased are entitled to claim the said amount in accordance
with law of succession governing them.

The fact that the
plaintiff-respondent is the widow of deceased-Darshan Singh is not disputed
that, so she being his widow was his class I legal heir and was certainly
entitled to the amount received by Sham Singh from the post office on maturity
of the Kisan Vikas Patras purchased by her deceased husband Darshan Singh.

From Published Accounts

Option at transition date available in Ind AS 101 “First
time Adoption of Indian Accounting Standards”, used to substitute fair value as
deemed cost for Property, Plant and Equipment and Investments with
corresponding impact of retained earnings on transition date

Reliance Industries Ltd. (Year ended 31st  March
2017)

Transition to Ind AS:

The Company has adopted
Ind AS with effect from 1st April 2016 with comparatives being
restated. Accordingly, the impact of transition has been provided in the
Reserves as at 1st April 2015 and all the periods presented have
been restated. The reconciliation between Ind AS and the previous Indian GAAP
for profits and reserves was first presented in Q1 FY 2016-17, under limited
review by the auditors. The audited reconciliation of convergence to Ind AS is
presented below along with the additional details.

RECONCILIATION OF PROFIT AND OTHER EQUITY BETWEEN Ind AS AND PREVIOUS INDIAN GAAP FOR
EARLIER PERIODS AND AS AT MARCH 31, 2016

(Rs. Crore)

Sr. No.

Nature of adjustments

Note ref.

Profit
reconciliation

Year ended

31-Mar-16

Other Equity

As at

31-Mar-16

 

 

Net profit/Other Equity as per Previous Indian GAAP

 

27,417

236,944*

1

Change in accounting policy for Oil
& Gas Activity – From full Cost Method (FCM) to Successful Efforts Method
(SEM)

I

279

(20,217)

2

Fair valuation as deemed cost for
Property, Plant and Equipment

II

41,292

3

Fair Valuation for Financial Assets

III

167

4,110

4

Deferred Tax

IV

(349)

(10,588)

5

Others

V

(130)

(783)

 

Total

 

(33)

13,814

 

Net profit before OCI/Other Equity as per Ind AS

 

27,384

250,758

*Including share application
money pending allotment.

Notes:

I.   Change in accounting policy for Oil & Gas
Activity – From Full Cost Method (FCM) to Successful Efforts Method (SEM):

The impact on account of change in accounting policy from FCM to SEM is
recognised in the Opening Reserves on the date of transition and consequential
impact of depletion and write-offs is recognised in the Profit and Loss
Account. Major differences impacting such change of accounting policy are in
the areas of;

   Expenditure on surrendered blocks, unproved
wells and abandoned wells, which has been expensed under SEM.

   Depletion on producing property in SEM is
calculated using Proved Developed Reserve, as against Proved Reserve in FCM.

II.  Fair valuation as deemed cost for Property,
Plant and Equipment:
The Company have considered fair value for properties,
viz, land admeasuring over 30,000 acres, situated in India, with impact of Rs.
41,292 crore in accordance with stipulations of Ind AS 101 with the resultant
impact being accounted for in the reserves.

III. Fair valuation for Financial Assets: The
Company has valued financial assets (other than investment in subsidiaries,
associate and joint ventures which are accounted at cost), at fair value.
Impact of fair value changes as on the date of transition, is recognised in
opening reserves and changes thereafter are recognised in Profit and Loss
Account or Other Comprehensive Income, as the case may be.

IV. Deferred Tax: The impact of transition
adjustments together with Ind AS mandate of using balance sheet approach
(against profit and loss approach in the previous GAAP) for computation of
deferred taxes has resulted in charge to the Reserves, on the date of
transition, with consequential impact to the Profit and Loss Account for the
subsequent periods.

V.  Others: Other adjustments primarily
comprise of:

a.  Attributing time value of money to Assets
Retirement Obligation: Under Ind AS, such obligation is recognised and measured
at present value. Under previous Indian GAAP, it was recorded at cost. The
impact for the periods subsequent to the date of transition is reflected in the
Profit and Loss Account.

b.  Loan processing fees / transaction cost: Under
Ind AS, such expenditures are considered for calculating effective interest
rate. The impact for the periods subsequent to the date of transition is
reflected in the Profit and Loss Account.

Tata Steel Ltd. (Year ended 31st March 2017)

Reconciliation between
Standalone/Consolidated financial results as reported under erstwhile Indian
GAAP (referred to as ‘I GAAP’) and Ind AS are summarised as below:

(a) Profit reconciliation

Rs. Crores

Particulars

Standalone Financial Year ended on 31.03.2016

Consolidated Financial year ended on 31.03.2016

Net profit as per I GAAP

4,900.95

(3,049.32)

Reversal
of gain on sale of equity instruments classified as fair value through OCI

(3,570.51)

(3,570.39)

Additional
depreciation and amortisation on fair value as deemed cost of property, plant
and equipment

(967.46)

7,207.40

Increase/(decrease)
in defined benefit cost

5.01

(1,707.18)

Others

(50.22)

(110.02)

Tax
effect on above adjustments

637.88

732.42

Net Profit as per Ind AS

955.65

(497.09)

Other
Comprehensive Income as per Ind AS

(3,407.13)

(1,898.17)

Total Comprehensive Income as per Ind AS

(2,451.48)

(2,395.26)

Other Comprehensive Income primarily includes impact of fair
valuation of quoted non-current investments and re-measurement gains/losses on
actuarial valuation of post-employment defined benefits. The consolidated other
comprehensive income also includes effect of foreign currency translation on
consolidation.

(b) Equity Reconciliation

Rs. Crore

 

Standalone

Consolidated

Particulars

As on 31.03.2016

As on 01.04.2015

As on 31.03.2016

Equity as per I GAAP

70,476.72

31,349.41

28,478.86

Fair
valuation / Amortised cost of Financial Assets / Liabilities

3,929.62

10,458.08

3,904.78

Deemed
cost of Property, plant and equipment and Investments [Note (i)]

(24,582.16)

13,956.40

21,012.11

Re-classification
of perpetual securities

2,275.00

2,275.00

2,275.00

Reversal
of proposed dividend and tax thereon

935.15

943.15

946.37

Fair
valuation of business combinations

(7,229.09)

(7,677.03)

Others

 

(421.70)

2,614.85

1,836.36

Tax impact on above adjustments

(3,700.25)

(6,399.99)

(6,262.96)

Equity as per Ind AS

48,912.38

47,967.81

44,513.49

Note (i): In accordance with Ind AS 101 “First time
Adoption of Indian Accounting Standards”, the Company has elected to treat fair
value as deemed cost for certain items of its property, plant and equipment and
investments held in certain subsidiaries as at 
April 01, 2015.

The net changes on account of the election in
the stand-alone consolidated financial statement resulted in an increase in
deemed cost of property, plant and equipment and a decrease in the deemed cost
of investments.

GLIMPSES OF SUPREME COURT RULINGS

14.  Snowtex Investment Ltd. vs.
Pr. CIT; [2019] 414 ITR 227 (SC)

 

Loss – Set off – Speculative transaction – The assessee having made an
admission on a statement of fact that the principal business activity was
trading in shares and securities, must bind it – The principal business of the
assessee thus not being of granting loans and advances during the assessment
year, the deeming fiction under section 73 was attracted – The provisions which
were contained in the Finance Act (No. 2) 2014 insofar as they amended the
Explanation to section 73, were not clarificatory

 

The appellant was registered as a non-banking financial company under
the Reserve Bank of India Act, 1934. The appellant filed its return of income
for the assessment year 2008-09 on 27th September, 2008. By an order
dated 14th December, 2010 the AO recorded that the principal business
activity of the assessee was trading in shares and securities. The loss from
share trading was held to be a speculation loss. The AO further held that in
view of the provisions of section 43(5)(d), activities pertaining to futures
and options could not be treated as speculative transactions. The loss from
speculation was held not to be capable of being set off against the profits
from business.

 

Against the AO’s order for the assessment year 2008-2009, an appeal was
filed before the CIT(A). The CIT(A) rejected the contention of the assessee
that the AO had erred in not allowing the speculation loss to be set off
against profits of trading in futures and options.

 

The assessee appealed against the decision of the CIT(A). The Income Tax
Appellate Tribunal, by its decision dated 6th November, 2015 held
that the claim of the assessee for setting off the loss from share trading
should be allowed against the profits from transactions in futures and options,
since the character of the activities was similar. The ITAT held that the
assessee who was in the business of share trading had treated the entire
activity of the purchase and sale of shares, which comprised both of
delivery-based and non-delivery-based trading, as one composite business.

 

The Revenue appealed before the High Court which, by its judgement dated
22nd November, 2016 accepted its submission. The High Court held
that the profits which had arisen from trading in futures and options were not
profits from a speculative business. Hence, the loss on trading in shares could
not be set off against the profits arising from the business of futures and
options.

 

On an appeal by the assessee, the Supreme Court noted that the
provisions of section 43(5) were amended by the Finance Act, 2005. Prior to the
amendment, section 43(5) defined a ‘speculative transaction’ to mean a
transaction in which a contract for the purchase or the sale of any commodity
including stocks and shares is settled otherwise than by the actual delivery or
transfer of the commodity or scripts. The impact of the amendment by the
Finance Act, 2005 was that an eligible transaction on a recognised stock
exchange in respect of trading in derivatives was deemed not to be a
speculative transaction. With effect from 1st April, 2006 trading in
derivatives was by a deeming fiction not regarded as a speculative transaction
when it was carried out on a recognised stock exchange. The circular of the CBDT
dated 27th February, 2006 indicated that this amendment was
occasioned by the changes which were introduced by SEBI both at the legal and
the technological level for bringing in greater transparency in the market for
derivatives.

 

The Supreme Court further noted that section 73 deals with losses from
speculation business. Under sub-section (1) of section 73, a loss computed in
relation to speculation business carried on by an assessee can only be set off
against the profits and gains of another speculation business. The Explanation
to section 73 contains a deeming fiction where certain businesses shall, for
the purposes of that section, be deemed to be speculation businesses. The
Explanation also carves out an exception in respect of certain specified businesses
which shall lie outside the fold of the deeming fiction. Prior to amendment of
the Explanation by the Finance (No. 2) Act, 2014 with effect from 1st
April, 2015, the business of trading in shares carried on by a company was not
excluded from its purview. However, by the amendment which was brought into
force from 1st April, 2015, the Explanation to section 73 further
excluded from the deeming fiction a company whose principal business was
trading in shares or banking.

 

The Court observed that while, on the one hand, Parliament amended
section 43(5) with effect from 1st April, 2006 as a result of which
trading in derivatives on recognised stock exchanges fell outside the purview
of the business of speculation, a corresponding amendment to the Explanation to
section 73 in respect of trading in shares was brought in only with effect from
1st April, 2015.

 

The submission which had been urged on behalf of the appellant was that
there was no logical reason to exclude from the purview of speculation business,
trading in shares, whereas trading in derivatives was excluded, from the ambit
of section 43(5) after 1st April, 2006.

 

The Supreme Court first dealt with the first submission, namely, that
the Explanation to section 73, as it stood prior to the amendment, excluded
from the deeming definition of a speculation business a situation where the
principal business of a company was granting of loans and advances.

 

The Court noted that there was no dispute about the fact that the
assessee was registered as an NBFC under the provisions of the Reserve Bank of
India Act, 1934. Before the Supreme Court it was urged that the principal
business was of granting of loans and advances. According to the Court, the
correctness of this aspect of the submission was not required to be determined
in the facts of the present case since the High Court had relied upon the
specific admission of the assessee that during the assessment year in question
its sole business was of dealing in shares.

 

The Supreme Court noted that while the assessee had given loans and
advances of Rs. 11.32 crores during the assessment year, it included
interest-free lending to the extent of Rs. 9.58 crores.

 

Having regard to these facts and circumstances, the specific admission
of the assessee before the AO assumed significance. According to the Supreme
Court, the assessee had made an admission on a statement of fact which must
bind it. Thus, the principal business of the assessee was not of granting loans
and advances during the assessment year. As a consequence, the
deeming fiction under section 73 was attracted. Hence, the finding of the High
Court on the first aspect could not be faulted.

 

So far as the second submission which was canvassed in the course of the
hearing of the appeal was concerned, the Supreme Court held that it was
difficult to hold that the provisions which were contained in the Finance Act
(No. 2) 2014 insofar as they amended the Explanation to section 73 were
clarificatory or that notwithstanding the provision by which the amendment was
brought into force with effect from 1st April, 2015, that it should
be given retrospective effect. 

 

FROM PUBLISHED ACCOUNTS

MULTIPLE KEY AUDIT MATTERS IN INDEPENDENT
AUDITORS’ REPORTS

 

RELIANCE INDUSTRIES LTD. (31st MARCH,
2019)

 

From Auditor’s Report on Consolidated
Financial Statements

 

KEY AUDIT MATTERS

Key Audit Matters are those matters that, in our professional judgement,
were of most significance in our audit of the Consolidated Financial Statements
for the financial year ended 31st March, 2019. These matters were
addressed in the context of our audit of the Consolidated Financial Statements
as a whole, and in forming our opinion thereon, and we do not provide a
separate opinion on these matters. For each matter below, our description of
how our audit addressed the matter is provided in that context. We have
determined the matters described below to be the Key Audit Matters (KAMs) to be
communicated in our report.

 

We have fulfilled the responsibilities described in the auditor’s
responsibilities for the audit of the Consolidated Financial Statements section
of our report, including in relation to these matters. Accordingly, our audit
included the performance of procedures designed to respond to our assessment of
the risks of material misstatement of the Consolidated Financial Statements.
The results of audit procedures performed by us and by other auditors of
components not audited by us, as reported by them in their audit reports
furnished to us by the management, including those procedures performed to
address the matters below, provide the basis for our audit opinion on the
accompanying Consolidated Financial Statements.

 

KAM: Capitalisation of property, plant and
equipment, intangible assets and related depreciation and amortisation

The holding company has identified capitalisation of property, plant and
equipment as a KAM. As a part of the gasification project, the holding company
has incurred additional capital expenditure for modification of power plant
equipments, i.e., gas turbines, auxiliary boilers, HRSGs, process furnaces,
etc., to make them compatible with multiple feedstock, including those received
from petcoke gasifier. Currently, all units of the gasification complex, its
associated utilities and offsites have been started and the complex is under
stabilisation. The testing phase of the project is under progress as at 31st
March, 2019 as it has not achieved the quality and efficiency parameters.
Accordingly, significant level of judgement is involved to ensure that
capitalisation of property, plant and equipment meet the recognition criteria
of Ind AS 16 Property, Plant and Equipment, specifically in relation to
determination of the trial run period and costs associated with trial runs for
it to be ready for intended use. As a result, the aforesaid matter was
determined to be a KAM.

 

The auditors of Reliance JioInfocomm Limited (‘RJIL’), a subsidiary of
the holding company, have reported a KAM on capitalisation of property, plant
and equipment / intangible assets and amortisation / depreciation of spectrum
costs and related tangible assets as it is a material item on the balance sheet
of the subsidiary in value terms. The property, plant and equipment and
intangible assets of the subsidiary as at 31st March 2019 is Rs.
134,000 crores. While the subsidiary has capitalised the wireless
telecommunication project, it continues to augment capacity therein and
continues to invest in setting up the wireline telecommunication project. Items
of property, plant and equipment and intangibles are capitalised when they are
ready for use as intended by the management.

 

Further, spectrum costs and the related tangible assets are amortised /
depreciated to appropriately reflect the expected pattern of consumption of
expected future economic benefits from continued use of the said assets (Refer
Note B.3 [e] of the Consolidated Financial Statements). Determination of timing
of capitalisation as well as rate of amortisation / depreciation in order to
ensure compliance with the stipulation of the applicable Accounting Standards
involve estimates, significant use of technology and significant judgement. Accordingly,
valuation and completeness are key assertions related to capitalisation of
property, plant and equipment and intangible assets, while accuracy is the key
assertion in respect of depreciation / amortisation charge.

 

How our audit addressed the KAM

Our audit procedures included and were not limited to the following:

 

Assessing the nature of the costs incurred to substantially modify the
existing power plants to test whether such costs are incurred specifically for
trial runs and meet the recognition criteria as set out in paras 16 to 22 of
Ind AS 16.

 

Evaluating the assessment provided by
third-party vendors involved in the construction and testing process to
determine whether capitalisation ceased when the asset is in the location and
condition necessary for it to be capable of operating in the manner intended by
the management.

 

In respect of the KAM reported by the auditors of RJIL, we performed
inquiry of the audit procedures performed by them to address the same. As
reported by the subsidiary auditor, the following procedures have been
performed by them:

 

(i) Testing the design, implementation and operating effectiveness of
controls in respect of review of capital work in progress, particularly in
respect of timing of the capitalisation with source documentation;

(ii) Testing controls over determination of
expected economic benefits from the use of relevant assets and monitoring
actual consumption thereof to true-up (sic) the expected pattern of
consumption during an accounting period;

(iii) Testing, including substantial involvement of internal telecom and
information technology specialists, to validate the expected pattern of
consumption of the economic benefits emanating from the use of the relevant
assets, as well as testing the relevant application systems used in monitoring
of actual consumption of the expected economic benefits;

(iv) Substantive testing procedures, including testing necessary
authorisations for capitalisation of items of PPE and intangible assets,
testing supporting documentation for consumption of capital goods inventory,
comparison of actual pattern of consumption of benefits for the current year
with the budget and testing the mathematical accuracy of computation of amortisation
/ depreciation charge for the year.

 

Obtained and read the financial statements of RJIL to identify whether
disclosure for capitalisation of property, plant and equipment and intangible
assets including spectrum and related amortisation / depreciation has been
appropriately disclosed in the consolidated financial statements of the group.

 

KAM: Changes in useful life and residual
value of plant and machinery

As at 31st March, 2019 the holding company had a gross block
of Rs. 228,340 crores in plant and machinery which constitutes 52.1% of the
property, plant and equipment. In the current year, the holding company has
revised the useful life and residual value of the plant and machinery used in
the refining segment. Assessment of useful lives and residual values of plant
machinery in an integrated and complex plant involves management judgement,
consideration of historical experiences, anticipated technological changes,
etc. (Refer Note 1.7 of the Consolidated Financial Statements). Accordingly, it
has been determined as a KAM.

 

How our audit addressed the KAM

Our audit procedures included and were not limited to the following:

 

(a) Evaluating the reasonableness of the assumptions considered by the
management in estimation of useful life and residual values;

(b) Examining the useful economic lives and residual value assigned with
reference to the holding company’s historical experience, technical evaluation
by third party and our understanding of the future utilisation of assets by the
holding company;

(c) Assessing whether the impact on account of the change has been
appropriately recognised in the financial statements;

(d) Review of the disclosures made in the financial statements in this
regard.

 

KAM: Estimation of oil reserves and decommissio-ning
liabilities

Refer to Note 30.2 on proved reserves and production, both on product
and geographical basis, and Note C(A) on estimation of oil and gas reserves,
Note C(C) on depreciation, amortisation and impairment charges and Note B.3(k)
on provisions. The determination of the holding company’s oil and natural gas
reserves requires significant judgements and estimates to be applied. Factors
such as the availability of geological and engineering data, reservoir
performance data, acquisition and divestment activity, drilling of new wells
and commodity prices, all impact the determination of the holding company’s
estimates of oil and natural gas reserves. The holding company bases its proved
reserves estimates considering reasonable certainty with rigorous technical and
commercial assessments based on conventional industry practice and regulatory
requirements. Estimates of oil and gas reserves are used to calculate depletion
charges for the holding company’s oil and gas assets.

 

The impact of changes in estimated proved reserves is dealt with
prospectively by amortising the remaining carrying value of the asset over the
expected future production. Oil and natural gas reserves also have a direct
impact on the assessment of the recoverability of asset’s carrying values
reported in the financial statements. Further, the recognition and measurement
of decommissioning provisions involves use of estimates and assumptions
relating to timing of abandonment of well and related facilities which would
depend upon the ultimate life of the field, expected utilisation of assets by
other fields, the scope of abandonment activity and pre-tax rate applied for
discounting. Accordingly, the same is considered as a KAM. The auditors of
Reliance Holding USA Inc. (‘RHUSA’), a subsidiary of the holding company, have
also reported a KAM on the aforesaid topic.

 

How our audit addressed the KAM

Our procedures have focused on the management’s estimation process in
the determination of oil and gas reserves and decommissioning liabilities. Our
work included, and was not limited to, the following procedures:

 

(I) Understand the holding company’s process and controls associated
with the oil and gas reserves estimation process;

(II) Evaluate the objectivity, independence and competence of the
internal specialists involved in the oil and gas reserves estimation process;

(III) Test that the updated oil and gas reserve estimates were included
appropriately in the holding company’s consideration of impairment, accounting
for amortisation / depletion and disclosures of proved reserves and proved
developed reserves in the financial statements;

(IV) Test the assumptions used in determining the decommissioning
provisions. And compare these assumptions with the past year and inquire for
reasons for any variations;

(V) In respect of the KAM reported to us by the auditors of RHUSA, we
performed an inquiry of the audit procedures performed by them to address the
same. As reported to us by the subsidiary auditor, they have performed
procedures in relation to the approach used; test of controls performed with
regard to data input into the system for calculation of oil and gas reserves;
audit report issued by external experts appointed by the subsidiary relating to
the audit of the key data and assumptions used by the management for estimating
the oil and gas reserve and the future net income as at the year-end;
competence and objectivity of the external experts; calculation of the
depletion charge and future net income and reasonableness of the discount rate
used by the subsidiary for calculating the future net income for impairment
calculation;

(VI) With respect to RHUSA, obtain and read its financial statements to
identify whether the disclosures on estimation of oil reserves have been
included in the Consolidated Financial Statements of the group.

 

KAM: Litigation matters (oil and gas)

The holding company has certain significant open legal proceedings under
arbitration for various complex matters with the Government of India and other
parties, continuing from earlier years, which are as under:

 

(i) Disallowance of certain costs under the production-sharing contract
relating to Block KG-DWN-98/3 and consequent deposit of differential revenue on
gas sales from D1D3 field to the gas pool account maintained by Gail (India)
Limited (Note 30.3 and 30.4 [b]);

(ii) Claim against the holding company in respect of gas said to have
migrated from neighbouring blocks (KGD6) (Note 30.4 [a]);

(iii) Claims relating to limits of cost-recovery, profit-sharing and
audit and accounting provisions of the public sector corporations, etc.,
arising under two production-sharing contracts entered into in 1994 (Note 30.4
[c]);

(iv) Suit for specific performance of a contract for supply of natural
gas before the Hon’ble Bombay High Court (Note 30.4 [d]). Due to the complexity
involved in these litigation matters, management’s judgement regarding
recognition and measurement of provisions for these legal proceedings is
inherently uncertain and might change over time as the outcomes of the legal
cases are determined. Accordingly, it has been considered as a KAM.

 

How our audit addressed the KAM

Our audit procedures included, and were not limited to, the following:

 

(a) Assessing management’s position through discussions with the
in-house legal expert and external legal opinions obtained by the holding
company (where considered necessary) on both the probability of success in the
aforesaid cases and the magnitude of any potential loss;

(b) Discussion with the management on the
developments in these litigations during the year ended 31st March,
2019;

(c) Roll out of inquiry letters to the holding company’s legal counsel
(internal / external) and studying the responses received from them. Assessing
that the accounting / disclosures made by the holding company are in accordance
with the assessment of the legal counsel;

(d) Review of the disclosures made in the financial statements in this
regard;

(e) Obtaining a representation letter from the management on the
assessment of these matters.

 

KAM: IT systems and controls over financial
reporting

We identified IT systems and controls over financial reporting as a KAM
for the holding company because its financial accounting and reporting systems
are fundamentally reliant on IT systems and IT controls to process significant
transaction volumes, specifically with respect to revenue and raw material
consumption. Automated accounting procedures and IT environment controls, which
include IT governance, IT general controls over programme development and
changes, access to programmes and data and IT operations, IT application
controls and interfaces between IT applications, are required to be designed
and to operate effectively to ensure accurate financial reporting.

 

How our audit addressed the KAM

Our procedures included and were not limited to the following:

 

(I) Assessing the complexity of the IT environment by engaging IT
specialists and through discussions with the head of IT;

(II) Assessing the design and evaluation of the operating effectiveness
of IT general controls over programme development and changes, access to
programmes and data and IT operations by engaging IT specialists;

(III) Assessing the design and evaluation of the operating effectiveness
of IT application controls in the key processes impacting financial reporting
of the holding company by engaging IT specialists;

(IV) Assessing the operating effectiveness of controls relating to data
transmission through the different IT systems to the financial reporting
systems by engaging IT specialists.

 

KAM: Impairment of goodwill

The group’s balance sheet includes Rs. 11,997 crores of goodwill,
representing 1% of its total assets. In accordance with Ind AS, goodwill is
allocated to cash generating units (CGUs) which are tested annually for
impairment using the discounted cash-flow approach of each CGU’s recoverable
value compared to the carrying value of the assets. A deficit between the
recoverable value and the CGU’s net assets would result in impairment. The
impairment test includes sensitivity testing of key assumptions, including
revenue growth, operating margin and discount rate. The annual impairment
testing is considered a significant accounting judgement and estimate and a KAM
because the assumptions on which the tests are based are highly judgemental and
are affected by future market and economic conditions which are inherently
uncertain.

 

How our audit addressed the KAM

With respect to goodwill relating to material subsidiaries, our audit
procedures included and were not limited to 

the following:

 

(i) Obtaining and reading the financial statements of the material
subsidiaries. Assessing the appropriateness of the methodology applied in
determining the CGUs to which goodwill is allocated;

(ii) Assessing the assumptions around the key drivers of the cash flow
forecasts including discount rates, expected growth rates and terminal growth
rates used, including engaging valuation specialists in certain cases;

(iii) Assessing the recoverable value headroom by performing sensitivity
testing of key assumptions used;

(iv) Discussing potential changes in key drivers as compared to previous
year / actual performance with management in order to evaluate whether the
inputs and assumptions used in the cash flow forecasts were reasonable.

 

KAM: Revenue recognition

The accounting policies of the group for revenue recognition are set out
in Note B3(p) to the Consolidated Financial Statements. The auditors of
Reliance JioInfocomm Limited (‘RJIL’), a subsidiary of the holding company,
have reported revenue recognition as a KAM due to the high volume of the
transactions, the high degree of IT systems involvement and considering that
accounting for certain tariff schemes involves exercise of judgements and
estimates, thereby affecting occurrence, cut-off and accuracy assertions in
respect of revenue recognition. Reliance Retail Ventures Limited (‘RRVL’), a
subsidiary of the holding company, trades in various consumption baskets on a
principal basis and recognises full value of consideration on transfer of
control of traded goods to the customers which most of the time coincides with
collection of cash or cash equivalent. The auditors of the subsidiary have reported
revenue recognition as a KAM due to the high volume of the transactions and
reconciliation of mode of payments with revenue recognised.

 

How our audit addressed the KAM

Our audit procedures included and were not limited to the following:

 

(a) Obtaining and reading the financial statements of RJIL and RRVL to
identify whether the revenue recognition policies are included in the
consolidated financial statement of the group;

 

(b) In respect of the KAM reported by the auditors of RJIL, we performed
an inquiry of the audit procedures performed by them to address the same.  As reported by the subsidiary auditor, the
following procedures have been performed by them:

 

(i) involvement of IT specialists and testing of the IT environment inter
alia
for access controls and change management controls over the subsidiary
company’s billing and other relevant support systems;

(ii) evaluation and testing of the design and operating effectiveness of
the relevant business process controls, inter alia controls over the
capture, measurement and authorisation of revenue transactions and involvement
of IT specialists for testing the automated controls therein;

(iii) evaluation of substantive testing involved, testing collections,
customer ratings for new products and tariffs introduced in the year, testing
the reconciliation between revenue as per the billing system and the financial
records and testing supporting documentation for manual journal entries posted
in revenue to ensure veracity thereof;

(iv) validation of the judgements and estimates exercised by the
management regarding the application of revenue recognition accounting standard
with respect to certain tariff schemes, particularly in view of adoption of
Ind AS 115;

 

(c) In respect of the KAM reported to us by the auditors of RRVL, we
performed an inquiry of the audit procedure performed by them to address it. As
reported to us by the subsidiary auditor, the following procedure had been
performed by them:

(v) Evaluation of the design, testing of the implementation of internal
controls and review of the operating effectiveness of the controls relating to
reconciliation of consideration with store sales by selection of samples from
different stores and dates throughout the period of audit and re-performance of
the reconciliation between store sales and the mode of payment collection
report.

 

KAM: Inventory

The auditors of Reliance Retail Ventures Limited (‘RRVL’), a subsidiary
of the holding company, have reported existence of inventory as a KAM due to
involvement of high risk on the basis of and the nature of the retail industry
wherein value per unit is relatively insignificant but high volumes are
involved which are dispersed across different points of sale and warehouses.
Refer Note B.3(i) to the Consolidated Financial Statements of the group.

 

How our audit addressed the KAM

Our audit procedures included and were not limited to the following:

 

In respect of the KAM reported to us by the auditors of RRVL, we
performed an inquiry of the audit procedures performed by them to address the
same. As reported to us by the subsidiary auditor, the following procedures
have been performed by them:

(I) Evaluation of the design and testing of the implementation of
internal controls relating to physical inventory counts on a test basis;

(II) Performance of test of controls over verification of documentary
evidence of controls including the calculation of shrinkages;

(III) Performance of test of details through sample selection of stores
as part of the inventory verification programme, including verification of
inventory from floor to documentary evidence and vice versa and
verification of shrinkage.

 

KAM: Transfer of the fibre undertakings

Pursuant to a Composite Scheme of Arrangement between Reliance
JioInfocomm Ltd. (RJIL), Jio Digital Fibre Private Limited (JDFPL) and Reliance
JioInfratel Private Limited (RJIPL) (the Scheme), RJIL has demerged its optic
fibre cable undertaking to JDFPL upon the scheme becoming effective on 31st
March, 2019. As per the scheme, RJIL transferred the undertaking to JDFPL at
book value and adjusted the carrying amount of net assets in reserves. Further,
JDFPL applied the purchase method of accounting in accordance with Ind AS 103
as mentioned in the scheme and recorded assets and liabilities of the
undertaking at their respective fair values and issued equity shares of Rs. 3
crores (fair value Rs. 497 crores) and optionally convertible preference shares
with surplus rights (OCPS) of Rs. 544 crores (fair value Rs. 77,701 crores) to
the company, being the shareholders of RJIL. Pursuant to the receipt of these
equity shares and OCPS, the holding company in its standalone financial
statements (SFS) has allocated its cost of investments in RJIL to RJIL and JDFPL
and elected to value its investment in OCPS at fair value through other
comprehensive income (FVTOCI).

 

Subsequently, the holding company sold its controlling equity stake in
JDFPL to Digital Fibre Infrastructure Trust resulting in a gain of Rs. 246
crores recognised in the consolidated statement of profit and loss. The
management has determined that the holding company has no control or
significant influence over JDFPL post the controlling stake sale. Further, the
remaining equity investment in JDFPL is measured at FVTPL and OCPS is measured
at FVTOCI in the Consolidated Financial Statements (Refer Note 2.2 of the
same). The auditors of RJIL have also reported a KAM in respect of the
accounting treatment applied for the scheme in its financial statements. The
above is considered as a KAM as the same has been reported as a significant
transaction that occurred during the current year which involves exercise of
judgement and interpretation of the relevant Indian Accounting Standards and
applicable tax and other statutes / regulations.

 

How our audit addressed the KAM

Our audit procedures included and were not limited to the following:

 

(i) Obtaining and reading the composite scheme of arrangement for
demerger of the optic fibre cable undertaking;

(ii) Obtaining the memo prepared by the holding company in consultation
with external experts (including related assumptions and accounting policy
choice) on the accounting treatment to be applied in the financial statements;

(iii) Evaluating whether the accounting treatment of the said
transaction is in line with the applicable Indian Accounting Standards;

(iv) Performing substantive testing procedures, including involvement of
valuation specialists for testing of the valuation reports provided by the
management for appropriateness of assumptions involved and testing of the
computation;

(v) Assessing whether the accounting entries recorded in the books are
in line with the accounting treatment assessed above, including the
arithmetical accuracy of the same;

(vi) In respect of the KAM reported by the auditors of RJIL, we
performed inquiry of the audit procedures performed by them to address the
same.

 

As reported by the subsidiary auditor, the following procedures have
been performed by them:

 

(I) Evaluation and testing of the internal controls over the
management’s assessment of the accounting treatment of the said transaction in
terms of the applicable Indian Accounting Standards and applicable tax and
other statutes / regulations, identification of assets and liabilities related
to each of the two undertakings;

(II) Substantive testing procedures including involvement of tax
specialists to validate the management position on tax implications of the
transaction and testing of tax computation for appropriate application of tax
laws, involvement of valuation specialists for testing of the valuation reports
provided by the management for appropriateness of assumptions involved and
testing of the computation, accounting of the transactions and the disclosures
for compliance with the requirements of the applicable accounting standards.

 

KAM: Impairment of assets of subsidiaries of
Reliance Industrial Investments and Holding Limited

The auditors of Reliance Industrial Investments and Holdings Limited (‘RIIHL’),
a subsidiary of the holding company, have reported a KAM on the impairment of
investment and loans given to subsidiaries as the recoverability assessment
involves significant management judgement and estimates (Refer Note B.3 [j] of
the Consolidated Financial Statements). Though these investments and loans are
eliminated at the consolidated level, the assets of the RIIHL subsidiaries are
included on a line-by-line basis in the Consolidated Financial Statements.
Accordingly, the impairment of these assets is considered to be a KAM.

 

How our audit addressed the KAM

Our audit procedures included and were not limited to the following:

(a) Obtaining and reading the financial statements of RIIHL and its
subsidiaries to identify whether any impairment has been recorded in the
current year;

(b) In respect of the KAM reported to us by the
auditors of RIIHL, we performed an inquiry of the audit procedures performed by
them to address the KAM. As reported to us by the subsidiary auditor, the
following procedures have been performed by them for material subsidiaries:

 

(i) Assessment of
the net worth of RIIHL subsidiaries / associates on the basis of latest
available financial statements;

(ii) Assessment of the methodologies applied to
ascertain the fair value or, as the case may be, value in use of the assets of
the subsidiaries / associates, where the net worth was negative;

(iii) Assessment of the accuracy and reasonableness
of the input data and assumptions used to determine the fair value of
subsidiaries’ assets, cash flow estimates, including sensitivity analysis of
key assumptions used.
 

 

 

 

Allied Laws

25. 
Hindu law — Joint family property – Co-sharer can only alienate to the
extent before partition which is the undivided interest of the coparceners in
the joint property – Sale of specific portion of property can only be done
after partition has been effected

 

Parmal Singh and Ors. vs. Ghanshyam and
Ors. AIR 2019 Madhya Pradesh 131

 

The plaintiffs had filed a suit against the
defendants for declaration of title and permanent injunction against the sale
of a specific part of the joint family property. A sale deed was executed by
defendant No. 1 in favour of defendant No. 2 and, thereafter, by defendant No.
2 in favour of defendant No. 3. Defendant No. 3 has purchased the land in
dispute from defendant No. 2 by registered sale deed dated 21st
August, 1997 after making payment of the entire consideration amount and he has
also been placed in possession.

 

The question that arose was whether specific
portion of the land could be sold without partition or not?

 

It was held that when the property in
dispute is joint in nature, then although the co-sharer can sell the property
to the extent of his share, he cannot sell the specific piece of land. All that
a co-sharer purchases at the execution of sale is the undivided interest of the
coparcener in the joint property. No title to any defined share in the property
was acquired and hence was not entitled to joint possession from the date of
his purchase. The rights could only be worked out by a suit for partition and
his right to possession would date from the period when a specific allotment
was made in his favour. Accordingly, it was directed that in case if the
defendant Nos. 1, 2 and 3 file a suit for partition within a period of three
months, then the purchaser shall continue to remain in possession of the land
purchased by him till the actual partition is done. The specific piece of land
would be decided only after the partition is done.

 

26. 
Limitation – Alienation of property by natural guardian – Prayer to set
aside such alienation to be within 3 years by minor / legal representative
[Hindu Minority and Guardianship Act, 1956, S. 8; Limitation Act, 1965, Art.
60]

 

Murugan and Ors. vs. Kesava Gounder (Dead)
thr. L.Rs. and Ors. AIR 2019 Supreme Court 2696

 

Mr. B executed a sale deed on behalf of his
minor son P. The plaintiffs were cousins of Mr. B. Their case was that Mr. B
had no authority to execute a sale deed on behalf of his minor son P and that
the same was voidable and prayed that the plaintiffs were entitled for
declaration and possession of the properties from the defendants. The issue was
whether the sale deed executed could be set aside even after a lapse of three
years from the date of death of the minor?

 

The Appellate Court held that since the
minor son P died in 1986, the suit to set aside sale deeds and for possession
should have been filed within three years of his death. The suit filed in 1992
was barred by limitation. For this, the Appellate Court relied on article 60 of
Limitation Act.

 

The plaintiffs filed a second appeal in the
High Court. The Court held that the alienations made by Mr. B could be
construed only as voidable alienations and not void alienations. The High Court
held that the Plaintiffs’ suit ought to have been filed within three years as
per article 60 of the Limitation Act. The Court dismissed the second appeal.
Aggrieved by the judgement, an appeal was filed in the Supreme Court.

 

The Supreme Court held that the first
Appellate Court and the High Court had rightly held that limitation for the
suit was governed by article 60 and the suit was clearly barred by time.

 

The Court observed that in case of
alienation by natural guardian in contravention of section 8 of the Hindu
Minority and Guardianship Act, 1956 a sale deed was voidable. Alienations,
which were voidable, at the instance of a minor or on his behalf, were required
to be set aside before relief for possession could be claimed by the
plaintiffs. The suit filed on behalf of the plaintiffs without seeking a prayer
for setting aside the sale deed was, thus, not properly framed and could not
have been decreed. When a registered sale deed was voidable, it was valid till
it was avoided in accordance with the law. Rights conferred by a registered
sale deed were good enough against the whole world and the sale could be
avoided in case property sold was of a minor by a natural guardian at the
instance of the minor or any person claiming under him. A document which was
voidable had to be actually set aside before taking its legal effect.

 

In the present case, it was necessary for a
person claiming through the minor to bring an action within the period of
limitation, i.e., within three years from the date of death of the minor, to
get the sale deed executed by Mr. B set aside. The sale deed executed by Mr. B
was not repudiated or avoided within the period of limitation as prescribed by
the law. Accordingly, the appeal filed by the plaintiffs was dismissed.

 

27. 
Partition – Deed of partition or a memorandum showing list of past
partition – To be determined with reference to recitals therein and not by its
title for the purpose of determining the applicability of stamp [Indian Stamp
Act, 1899, S. 35]

 

Koyya Ganga Venkata Satya Bhaskara Rao and
Ors. vs. Koyya Rama Krishnudu and Ors. AIR 2019 Andhra Pradesh

 

An issue arose when a document purported to
be a memorandum of past partition was attached as an annexure to the plaint by
the plaintiff. The defendants objected to the tendering of a deed of partition
as evidence since the said document was not stamped and registered and hence
inadmissible in evidence. The AR for the plaintiffs argued that the document
was a mere memorandum of past partition and not a deed of partition, hence no
registration or stamp was required due to which the said document should have
been admissible.

 

The trial Court, having referred to the
contents of the document as well as the precedents cited before it, upheld the
objection of the defendants and recorded a finding that the document in
question was a deed of partition and was liable to be charged with required
stamp duty. The aggrieved plaintiffs preferred revision.

 

The short question was whether the document
in question was a deed of partition chargeable with duty or a memorandum of
partition, or a partition list evidencing a transaction of past partition?

 

It was observed that the nature of a
document had to be determined with reference to the recitals therein and the
substance of the transaction embodied in the instrument and not with reference
to the title, caption or name given to the instrument. The name or the caption
given to the document is not determinative and the nature or character or the
substance of the transaction contained in the document is the only determinative
factor.

 

From the perusal of the said document, it
was understood that the recitals therein made it manifest that under the very
document the immovable properties were permanently partitioned once and for
all.

 

It was held that the said document was a
Deed of Partition and not a Memorandum of Partition showing a list of past
partition. Accordingly, it was held that since the document was not stamped, it
could not be admitted even for collateral purpose unless the required stamp
duty and penalty collectable on the instrument were paid and collected.

 

28. 
Recusal – Litigant cannot insist on a judge to not hear the case – Judge
can recuse himself by choice but not at the request of the litigant

 

Seema Sapra
vs. Court on its own motion [2019]; Writ Petition No. 13 of 2018; Dated: 14th
August, 2019

 

During the course of the hearing, the
appellant-in-person made an oral request that the bench ought to recuse from
hearing the matter which fact was noted. While dealing with the gravamen of the
apprehension of the appellant as to why she has insisted for recusal of one of
the judges, the Court observed that the apprehension of the appellant is
founded on the allegation that she may not get justice from the bench as one of
the judges was well acquainted with the advocates who incidentally are members
of the Supreme Court Bar Association against whom personal allegations have
been made by her in the accompanying writ petition.

 

In respect of the limited point of recusal,
the Court held that indubitably it is always open for a judge to recuse at his
own volition from a case entrusted to him by the Chief justice. But recusing at
the asking of a litigant party cannot be countenanced unless it deserves due
consideration and is justified. It was further mentioned that ‘it must be never
forgotten that an impartial judge is the quintessence for a fair trial and one
should not hesitate to recuse if there are just and reasonable grounds. At the
same time, one cannot be oblivious of the duties of a judge which is to
discharge his responsibility with absolute earnestness, sincerity and being
true to the oath of his / her office. After perusal of the assertions made in
the I.A.s, we have no hesitation in holding that the same are devoid of merit
and without any substance.’

 

29. 
Hindu Law – Female Hindu – Property held by male governed by any school
of Hindu law other than Dayabhaga dies, his widow shall have the same right in
the property as the deceased had – Accordingly, property possessed by female
Hindu whether acquired before or after the commencement of the Hindu Succession
Act, shall be held by her as the full owner thereof and not as a limited owner
[Hindu Succession Act, 1956, S.14; Hindu Women’s Right to Property Act, 1937,
S.3]

 

Jagannath Waman Undre vs. Yamunabai Sitaram
Kadam AIR 2019 Bombay 143

 

The plaintiff (sister) filed a suit for
declaration of her rights in the suit property. The defendant was the
plaintiff’s brother whose name alone was entered in the records of rights of
the suit property after their mother’s death. The district court reversed the
order of the trial court and passed the order in favour of the plaintiff. The
appellant-defendant is in appeal before the high court.

 

The learned trial court held that under the
coparcenary law a wife or a widow or a daughter though a member of Joint Hindu
Family, was not entitled to any share or interest in the coparcenary property
of that joint family, except to the extent of the right of maintenance and
residence or marriage expenses. The trial court thus held that a woman, whether
wife or widow or daughter, could not claim share separately. On this ground
alone, the suit was dismissed.

 

The Appellate Court held that under sub-section
(2) of section 3 of the Hindu Women’s Right to Property Act, 1937 when a Hindu
governed by any school of Hindu law other than Dayabhaga dies having at the
time of his death interest in Hindu joint family property, his widow shall have
the same right in the property as the deceased. However, such interest shall be
limited interest known as Hindu woman’s estate.

 

Further, in
view of the provisions of section 14 of the Hindu Succession Act, 1956 the
mother of the plaintiff and the defendant became absolute owners of their share
in the suit property which was the limited interest or Hindu woman’s estate.
Accordingly, the mother’s interest in the property would devolve as per the
scheme in terms of section 15 of the Hindu Succession Act, 1956. Thus, her property
will devolve upon her sons, daughters and husband and not only on the son as
seen in the present case.

 

FROM THE PRESIDENT

Dear Members,


It has
been just a month since I communicated with you, but the events that have
unfolded in the last 30 days make it appear as if a long period of time has
elapsed. There have been some major developments (both positive and negative)
in the socio-economic and political landscape of our country that would have a
significant impact on our future. Beginning with the successful launch of the
Chandrayaan 2 mission to the moon, the scrapping of Article 370 of the
Constitution which provides a special status to the state of Jammu and Kashmir,
the passing of the Triple Talaq – Muslim Women (Protection of Rights on
Marriage) Bill, 2019, the floods situation across many states, the enactment of
the Companies (Amendment) Act, 2019, re-emergence of the Direct Tax Code and,
above all, the Prime Minister’s meetings with the Finance Minister and the
industry leaders on the state of the economy.

 

I was
recently reading a report which points out that the just-concluded budget
session of Parliament was the most productive in decades. It was one of the
busiest sessions in the past 20 years, both the houses spent nearly half their
time on legislative business, passing 30 bills and working more than 70 hours
extra. As citizens of the country we feel proud of this but, at the same time,
also hope that a healthy debate has taken place before any enactment and that
the Government has taken all the stakeholders on board.

 

Is it
fair?

 

The
Companies (Amendment) Act, 2019 received the assent of the President on 31st
July, 2019; this has made a U-turn on certain provisions relating to Corporate
Social Responsibility (CSR) spending by companies. Initially, when CSR was
introduced in the Companies Act, 2013 it was purely voluntary and without any
penal provisions. However, the said Amendment Act introduces provisions like
deposition of funds for mandatory CSR expenditure for a given fiscal in an
escrow account in case of certain ongoing projects and transfer of unspent
funds (within three years) to the National CSR Fund. Further, if a company does
not have an ongoing project that requires funding in stages, then such a
company will be required to transfer unused CSR funds to the National CSR Fund.
For the first time, non-compliance would attract a fine and imprisonment for
the officer in default. We need to ask the question: ‘Is it fair to all
concerned? Are such provisions aiding in the Government’s efforts of “Ease of
doing business in India”?’

 

It
gives me immense pleasure to inform you that we had made a joint representation
to the Hon’ble Union Minister of State for Finance and Corporate Affairs who
gave us a personal hearing; a number of major points causing difficulties to
tax payers and professionals were explained to the Minister. Both direct and
indirect tax issues were brought to the table and explained in detail. He was
appreciative of the various issues raised by us and we hope that, as in the
past, many of our suggestions would be accepted and concrete corrective action
would be taken in time.

 

The
Consumer Confidence Survey of the Reserve Bank of India indicates that not only
was the sentiment negative for three of the five parameters in the month of
July, but it was expected to deteriorate further compared to two months ago. We
are witnessing a weak consumer sentiment which is also reflecting in the
business sentiment, with businesses being less upbeat about production, order
books and capacity utilisation. The good news is that the Government is aware
of the overall slowdown in the economy and might take corrective action very soon.
This, coupled with the upcoming festival season following a healthy monsoon, is
expected to bring cheer to the stressed sectors of the economy in the second
half of the fiscal.

 

Fortunately,
soon after I penned the above thoughts, the Finance Minister announced a
recovery package to provide immediate succour to some of the worst pain points
of the economy in the hope of effecting a turnaround – including a rollback of
CSR violations being treated as a criminal offence!

 

Wishing
all of you all the best for the upcoming busy September tax audit season.

 

With
Best Regards,

 

 

 

CA
Manish Sampat

President

FINANCIAL REPORTING DOSSIER

This article provides key recent updates in
financial reporting in the global space that could soon permeate into Indian
financial reporting; insights into an Ind AS accounting topic, viz., other
comprehensive income, tracing its roots, developments and relevance; compliance
aspects of capital disclosures under Ind AS; and a peek at an international
reporting practice in audit committee reports

 

1.   KEY RECENT UPDATES

 

1.1   From disclosing ‘significant accounting
policies’ to disclosing ‘material accounting policies’

The IASB on 1st
August, 2019, proposed amendments to IAS 1 Presentation of Financial
Statements
and IFRS Practice Statement 2 Making Materiality Judgements.
A threshold for disclosing accounting policies is clarified by replacing the
requirement to disclose ‘significant’ accounting policies with ‘material’
accounting policies. Materiality in this context is a threshold that can
influence users’ decisions based on the financial statements.

 

1.2   Exception to recognising deferred tax upon
first-time recognition of assets or liabilities

The IASB has
proposed amendments to IAS 12 Income Taxes on 17th July, 2019
clarifying accounting for deferred tax on leases and decommissioning
obligations. IAS 12 exempts recognising deferred tax upon recognition of assets
or liabilities for the first time. As per the exposure draft, this exemption
would not apply to leases and decommissioning obligations – transactions for which
companies would recognise both an asset and a liability. Recognition of
deferred tax on such transactions would therefore be required.

 

1.3   Useful information on ECL estimation for Ind
AS stakeholders

The FASB has issued
a Staff Q&A on Developing an Estimate of Expected Credit Losses on
Financial Assets.
Akin to IFRS 9, USGAAP requires financial assets held at
amortised cost to be subject to impairment testing using the ECL approach. This
approach requires an entity to consider historical experience, current
conditions and reasonable and supportable forecasts. The Q&A issued on 17th
July, 2019 provides guidance in this area.

1.4   Revisions to the international code of ethics
for professional accountants

The IESBA issued an
Exposure Draft on 31st July, 2019, Proposed Revisions to Promote
the Role and Mindset Expected of Professional Accountants
that inter
alia
enhances robustness of the fundamental principles of integrity,
objectivity and professional behaviour.

 

2.   RESEARCHING – OTHER
COMPREHENSIVE INCOME (OCI)

 

2.1   Introduction

Comprehensive
income as a reported accounting measure is new in the Indian context. The
notion of income is wider under comprehensive income in comparison with a
narrower income statement (profit and loss) concept.

 

2.2   Setting the context

Analysis of three
sample companies’ total comprehensive income (TCI) dissecting their composition
and growth in terms of profit after tax (PAT) and other comprehensive income
(OCI) is provided below:

 

Company 1 – Walt Disney, US listed (Dow
Index Component)

 

2017
($ MN)

2016
($ MN)

2017 (%)

2016 (%)

Growth %

PAT

9,366

9,790

96%

120%

(4.3)%

OCI

426

(1,656)

4%

(20%)

 

TCI

9,792

8,134

100%

100%

20.4%

 

Company 2 – Power Finance Corporation,
India listed, NBFC

 

2019
(Rs. cr)

2018
(Rs. cr)

2019 (%)

2018 (%)

Growth %

PAT

6,953

4,387

103%

108%

58.5%

OCI

(207)

(324)

(3%)

(8%)

 

TCI

6,746

4,063

100%

100%

66.0%

 

Company 3 – British Petroleum, US and UK
Listed
(Dow Index Component)

 

2018
($ MN)

2017
($ MN)

2018 (%)

2017 (%)

Growth %

PAT

9,578

3,468

126%

41%

176.2%

OCI

(1,980)

5,016

(26%)

59%

 

TCI

7,598

8,484

100%

100%

(10.4%)

 

As can be seen from
the table above, Company 1 reported an increase of 20.4% at the TCI layer,
while the PAT witnessed a ‘de-growth’ of 4.3%.

 

Volatility in OCI could
amplify or mask total comprehensive income. Do investors focus on PAT or TCI as
a measure of financial performance? Is TCI an important measure for investors?

 

In this section an
attempt is made to address the following questions:

 

1.

Is the concept of OCI new under Ind AS or did it exist under
AS?

2.

Was IFRS the first GAAP to introduce this concept?

3.

Did OCI develop as an accounting concept or as a practice?

4.

What have been the historical and current developments?

5.

Is OCI relevant to investors?

 

 

2.3   The current position in India

Other Comprehensive
Income (OCI) as an accounting concept and a reporting measure made its way into
India Inc.’s corporate balance sheets with the introduction of Ind AS. OCI
comprises items of income and expenses that are not recognised in profit or
loss as required or permitted by other Ind ASs.

 

Ind AS 1 Presentation
of Financial Statements
lists the components of OCI that inter alia
include changes in revaluation surplus of items of property, plant and
equipment, gains and losses arising from translating the financial statements
of a foreign operation, gains and losses from investments in equity instruments
designated at FVTOCI, gains and losses on financial assets measured at FVTOCI,
re-measurement of defined benefit plans and the effective portion of gains and
losses on hedging instruments in a cash flow hedge.

 

Schedule III to the
Companies Act requires Ind AS companies to report other comprehensive income in
the statement of profit and loss as a separate measure. Investors are provided
in a single statement the accounting measures of profit for the period, other
comprehensive income and total comprehensive income.

 

2.4   Background

 

2.4.1 India

In the Indian GAAP
(AS) dispensation, revaluation of fixed assets was permitted and the process of
consolidating a foreign subsidiary generated a resulting foreign currency
translation reserve (FCTR). These two line items have been taken up for the
purpose of this discussion.

 

AS 10 Accounting
for Fixed Assets
before it made its way to AS 10 Property, plant and
equipment,
permitted an increase in net book value arising on revaluation
of fixed assets to be credited directly to owner’s interests under the head of
revaluation reserve (paragraph 30).

 

AS 11 the
Effects of changes in Foreign Exchange Rates
requires a non-integral
foreign operation to use translation procedures whereby the resulting exchange
differences should be accumulated in an FCTR until disposal of the investment
(paragraph 24).

 

The concept of
OCI is new in India despite the fact that items like revaluation surplus and
FCTR were also accounted under AS.
The AS treatment
for these items bypassed income and had direct entry to the balance sheet,
whereas converged Ind AS does not permit direct entry to the balance sheet.

 

2.4.2 The United
States

IFRS (IAS in its
previous avatar) was not the first GAAP to introduce the concept of
comprehensive income.

 

Comprehensive
income was defined for the first time in USGAAP in 1980. Although the term was
defined, reporting standards for the same did not evolve for a considerable
period of time.

 

The origin of other
comprehensive income reporting in global accounting literature can be traced to
a 1997 USGAAP Statement of Financial Accounting Standard (FAS) – Reporting
Comprehensive Income
. This statement issued by the Financial Accounting
Standards Board (FASB) established standards for reporting and presenting
comprehensive income and its components.

 

The relevant
concepts surrounding how globally accounting income reporting was historically
characterised in terms of a contrast between a ‘dirty surplus’ and a ‘clean
surplus’ income concept is highlighted in the table below:

 

Current operating performance income
concept

All-inclusive income concept

Dirty Surplus in Accounting Theory

Clean Surplus in Accounting Theory

Current operating performance income
concept

All-inclusive income concept

Extraordinary and non-recurring gains
and losses are excluded from income

All revenues, expenses, gains and losses
recognised during the period are included in income regardless of whether
they are considered to be results of operations of the period

 

 

Until 1997, the
FASB followed the all-inclusive income concept but it did make exceptions by
requiring that certain changes in assets and liabilities not be reported in the
income statement but instead be included in balances within a separate
component of equity in the balance sheet. Some examples include foreign
currency translation, accounting for certain investments in debt and equity
securities akin to Indian GAAP ‘AS’ revaluation gains (AS 10, now replaced) and FCTR treatment (AS 11).

 

In 1997, as a step
in implementing the concept of comprehensive income, the FASB required that
changes in the balances of items that were reported directly in a separate
component of equity in the balance sheet be reported in a financial statement
that is displayed as prominently as other financial statements, viz.,
‘Comprehensive Income’.

 

The purpose of
reporting comprehensive income is to report a measure of all changes in equity
of an entity that result from recognised transactions and other economic events
of the period other than transactions with owners in their capacity as owners.

 

OCI and TCI reporting developed more as a practice
than a concept. Further developments and improvements are expected both under
USGAAP and IFRS.

 

2.4.3 The United
Kingdom

In 1992, the UK Accounting Standards Board issued a financial reporting
standard – Reporting Financial Performance. It introduced a ‘Statement
of Total Recognised Gains and Losses’ financial statement component that was
analogous to the US comprehensive income.

 

2.4.4 IFRS

OCI and
Comprehensive income reporting was introduced in IFRS in 2007 with a revision
to IAS 1 Presentation of Financial Statements requiring inter alia
components of OCI to be displayed in the statement of comprehensive income and
total comprehensive income to be presented in the financial statements.


2.5 Recent
developments

The IFRS Conceptual
Summary revised by the IASB in 2018 lends relatively more clarity to the
distinction between net profit and OCI. In the development of standards, the
IASB may now decide in exceptional circumstances that income or expenses
arising from a change in the current value of an asset / liability be included
in OCI when it results in the statement of profit or loss providing more
relevant information or a more faithful representation of financial
performance.

 

In December,
2018, the ICAI issued an Exposure Draft of AS 1 – Presentation of Financial
Statements
, to replace the extant AS 1 – Disclosure of Accounting
Policies
. The wider income concepts of OCI and comprehensive income have
been introduced in this IGAAP exposure draft.

 

2.6   Is OCI relevant to investors?

The IASBs-IFRS
Conceptual Framework (2018 revised) states that an understanding of financial
performance requires analysis of all recognised income and expenses, i.e., PAT
and OCI. The expected focus is therefore on TCI.

 

Net earnings for
the period as reported by the measure PAT lends itself to assessment of
forecast cash flows from a dividend distribution perspective.

 

The ground reality
globally is that Alternate Performance Measures (APMs) are fast becoming
mainstream. Progressive companies continue to strive to provide insights into
real value creation using measures that are alternates to accounting measures,
including TCI.

 

3.  
COMPLIANCE: CAPITAL DISCLOSURES (I
nd AS)

 

Capital
disclosures

This Ind AS
disclosure requirement ensures that users of financial statements are provided
useful information about entity-specific capital strategies.

 

This disclosure in the notes is mandatory for all entities and, moreover
is in addition to other disclosures related to equity and reserves. The
disclosure requirements are contained in Ind AS 1 Presentation of Financial
Statements
(paragraphs 134 to 136). A reporting entity also needs to
consider paragraphs 44A to 44E of Ind AS 7 Statement of Cash Flows
(Changes in Liabilities Arising from Financing Activities) to comply with Ind
AS 1 capital disclosure requirements.

 

The capital
disclosures are applicable to all companies and not only to companies that are subject
to externally imposed capital requirements like banks / NBFCs.

 

An entity is required to disclose information that enables users of its
financial statements to evaluate its objectives, policies and processes for
managing capital. In complying with this, qualitative and quantitative
disclosures are required.

 

Qualitative disclosures

Quantitative disclosures

Description of what an entity manages as
capital

Summary quantitative data about what it
manages as capital

How it is meeting its objectives for
managing capital

 

For entities subject to externally
imposed capital requirements, the nature of those requirements and how the
same is incorporated into capital management

 

 

 

Capital for the
purpose of this disclosure has to be understood the way it is considered as
part of corporate financial management text / practices. Capital is not just
share capital or equity but includes liability components, too.

 

Capital
disclosures should be based on the information provided internally to key
management personnel (KMPs).
For instance, some
entities may consider lease liabilities and / or overdrafts as components of
capital for capital management, while others may not.

 

4. 
GLOBAL ANNUAL REPORT EXTRACTS: AUDIT COMMMITTEE REPORT

 

Extracts from ‘Audit Committee Report’
Section of Annual Report

Company: BAE Systems PLC (2018
revenues GBP 16.8 billion)

 

The Audit
Committee reviews all significant issues
concerning the financial
statements. The principal matters it considered concerning the 2018
financial statements were (see table below):

 

Principal matters considered by Audit
Committee

Taxation

Computation
of the group’s tax expense and liability, the provisioning for potential tax
liabilities and the level of deferred tax asset recognition are underpinned
by management judgement and estimation of the amounts that could be payable

Whilst
tax policy is ultimately a matter for the Board’s determination, we reviewed
the group’s tax strategy. Twice during the year, we (‘the
Audit Committee’
)1 reviewed the group’s tax charge, tax
provisions and the basis of recoverability of the deferred tax asset

relating to the group’s pension deficit

Pensions

Accounting
for pensions and other post-retirement benefits involves making estimates when
measuring the group’s retirement benefit obligations. These estimates require
assumptions to be made about uncertain events such as discount rates
and longevity

Recognising
the scale of the group’s pension obligation, we (‘the Audit
Committee
’)1 reviewed the key assumptions supporting the
valuation of the retirement benefit obligation
. This included a
comparison of the discount and inflation rates used against externally
derived data.
We also considered the adequacy of disclosures in respect
of the sensitivity of the deficit to changes in these key assumptions

 

 

5. FROM THE PAST – ‘IMPROVED OUTSIDE AUDITING
IN THE FINANCIAL REPORTING BUSINESS’

 

The Former
Securities Exchange Commission’s Chairman, Mr. Arthur Levitt’s 1998 remarks (NYU
Center for Law and Business)
are relevant even today. Extracts of the same
are reproduced below:

 

‘As I look at
some of the failures today, I can’t help but wonder if the staff in the
trenches of the profession have the training and supervision they need to
ensure that audits are being done right. We cannot permit thorough audits to
be sacrificed for re-engineered approaches that are efficient, but less
effective.

 

Numbers in the abstract are just that – numbers. But
relying on the numbers in a financial report are livelihoods, interests and,
ultimately, stories
: a single mother who works two jobs so she can save
enough to give her kids a good education; a father who laboured at the same
company for his entire adult life and now just wants to enjoy time with his
grandchildren; a young couple who dreams of starting their own business.

 

These are the stories of American investors. Our
mandate and our obligations are clear. We must re-dedicate ourselves to a
fundamental principle: markets exist through the grace of investors.

 

STATISTICALLY SPEAKING

1.    Return since 2010:

 

 

Source: Twitter@morganhousel

 

2.    Oil exports as a share of GDP, 2018

Source: Twitter @spectatorindex

 

3.    Inflation, 2018

 

 

Source: Twitter @spectatorindex

 

4.    Currency against US Dollar, past year

 

   

Source: Twitter @spectatorindex

 

 

 

 5. Direct and
Indirect Tax Collections

  

Source: Economic times

 

6.    Samsung smartphone market share in China
(based on shipments)

  

Source: IDC, Counterpoint

Society News

Technology Initiatives Study Circle

Study Circle Meeting on “How to Write Macros in Excel” held on 23rd July, 2018 at BCAS Conference Hall

Technology Initiatives Committee conducted a Study Circle Meeting on “How to Write Macros in Excel” on 23rd July, 2018 at BCAS Conference Hall which was led by CA. Nachiket Pendharkar, who is a corporate trainer for MS Excel and Excel VBA and Founder & CEO of ViN Learning Centre, a Corporate Training Institute.

  1. Nachiket Pendharkar very systematically dealt with the topic by providing step by step procedure with examples of recording macros in Excel. He gave the clear understanding of the topic and meticulously covered the importance of Macros in Excel, Excel VBA and Macro Basics.

The study circle was truly enthralling and participants appreciated the in-depth insights given by the learned speaker.

Lecture meeting on “Impact of Technology on the role of Auditors” held on 1st August, 2018 at BCAS Conference Hall

A lecture meeting on topic “Impact of Technology on the role of Auditors” was held on 1st August, 2018 at BCAS Conference Hall which was addressed by  CA. P. R. Ramesh who dealt with impact of technology on audit and future of auditing.

CA Sunil Gabhawalla, President, BCAS introduced the Speaker and gave opening remarks while explaining about BCAS activities and also touched upon the subject in brief.

During his presentation, the Speaker discussed and explained various nuances of information technology, the history of technology and its future, with various real life examples. Along with the references to various data and figures, he explained the exponential growth in  business due to the impact of technology. He also deep dived into the  future of Audit profession and changes expected in the audit procedures as well as the role of auditors due to the impact of technology on business. He highlighted the necessity for the audit professionals to invest in technology and keep abreast with the latest technology to be relevant in the demanding and everchanging landscape of the profession.

The lecture meeting also provided a hands-on guidance to the participants, many of whom were young members. The lecture was followed by Q & A session and the Speaker replied to all the queries of the participants in a very lucid manner.

Direct Tax Laws Study Circle

Study Circle Meeting on ‘Tax Implications owing to Ind-As’ held on 2nd August 2018 at BCAS Conference Hall

Taxation Committee organised a Direct Tax Laws Study Circle on the captioned subject at BCAS Conference Hall. The Convenor of the study circle CA. Nilesh Parekh gave his opening remarks. The Group leader, CA. Bhaumik Goda gave a brief overview of the applicability of Ind-AS provisions to companies in India and prevailing direct tax provisions including MAT.

Thereafter, the group leader briefly explained the tax impact on account of Ind-AS and the presentation of the financial statements. Various examples and case laws were discussed and questions were taken with respect to the relevant sections. The group leader touched upon the key areas of change in Ind-AS 16- PPE and discussed an illustration reflecting impact of ‘spare parts’ and ‘site restoration expenses’ in the books of the company. Journal entries and effects in the transition period were discussed in detail. Further, CA. Bhaumik Goda explained the impact of Ind-AS 27- Separate financial statement wherein the impact on the provisions of section 14A and Rule 8D were also discussed followed by discussion on Ind AS 102- Share based payment where deductibility of ESOP expenses was deliberated on and an illustration pertaining to group ESOP was analysed in depth. The session was concluded by discussing aspects to be considered during the transition period.

The meeting was quite participative and the participants benefitted a lot from the session.

Half Day Workshop on “Preparation of Consolidated Financial Statement Under Ind AS” held on 2nd   August, 2018 at Reliance Industries Ltd, RCP, Ghansholi

The Accounting and Auditing Committee organised a half day workshop on preparation of Consolidated Financial Statements under Ind AS on 2nd August, 2018 at RIL, RCP, Ghansoli. The event saw attendance of over 80 participants including outstation participants.

The workshop was hosted by RIL at their RCP facility and began at board room where Mr. Murthy from RIL welcomed all the participants. He then briefly introduced Reliance University and played a video presentation to make participants aware of Reliance University etc.

CA Nihar Jambusharia, Vice President, Taxation at RIL and Central Council Member and Chairman of Ind AS Implementation Group of ICAI gave his welcome speech and briefed members about the activities his committee at Central Council of ICAI is undertaking. President CA. Sunil Gabhawalla gave the opening remarks regarding the activities at BCAS. He also thanked RIL for hosting the workshop. Chairman, Accounting & Auditing Committee, CA. Himanshu Kishnadwala in his remarks briefed the members about how the idea of holding this workshop at RIL was conceptualised.

The faculty, CA. Raj Mullick in his opening remark said that RIL is able to achieve this only because of use of Technology, Systems and Discipline and Co-ordination amongst business and accounts. He said that it is a continuous process which results into such an achievement.

He then went on to present the participants through the whole process his team at RIL does on weekly basis, monthly basis and quarterly basis including meeting with the business CFO’s, functional CFO’s and how the accounts are aligned with business and how MIS are aligned to accounts. He also explained how external audit is completed up to the period of nine months  and the complete set of CFS along with all the notes and disclosures are prepared up to the period of nine months. These financials act as a trial run for the audited financials for the period of 12 months.

Lastly, he shared with  the participants the ambitious goal set before his team of providing weekly CFS to the CFO’s and every month they will come up with complete set of financials.

The session ended with the closing remark and well deserved vote of thanks given by CA. Chirag Doshi who quoted RIL founder late Shri Dhirubhai Ambani “Meeting Deadline is not enough, beating Deadline should be
the norm”.

The participants got fully mesmerised with the insights given by the Speaker.

Tree Plantation Drive 2018 – Visit to Dharampur, Valsad – Gujarat 4th – 5th August, 2018

In constant endeavour to contribute towards Grow Green Drive together with rural economic development, the Human Resource Development Committee of BCAS jointly with BCAS Foundation organised Tree Plantation Drive in the tribal areas of Dharampur District, Valsad – Gujarat on 4th and 5th August, 2018. This noble task was carried out with the help of the Sarvodaya Parivar Trust. Enthusiastic team of 37 volunteers and majority from the youth team participated to carry out this noble mission.

Sarvodaya Parivar Trust (SPT) – This NGO’s goal is to empower the tribal people, making them increasingly self-reliant by engaging in various tribal welfare activities in the field of Education, Health, Agriculture, Water management, Environment, Public Awareness programmes, etc. With help of local farmers, the team assisted in planting saplings of Custard Apple, Teak and Bamboo Trees in outskirts of Khadki village and also distributed Mango saplings to the farmers. BCAS Foundation committed to plantation of 10,000 trees and made contribution of
Rs. 3,00,000/- received through generous donations. The Team at SPT also showed the plant nursery where they have cultivated over 70-80 varieties of saplings over last five years and has assisted in developing above 47 Gram Vans over 45 acres of land.

The team of volunteers visited the Residential School run by the SPT at Pindval. The students here are trained in real life experiences and chores and are made capable to handle school maintenance like housekeeping, kitchen duties etc. by allocating them various portfolios like Health Minister, Stores Minister, Garden Minister, etc., thereby making them responsible to face challenges.

Shrimad   Rajchandra     Ashram  –    Founder      Shri      Rakeshbhai Zaveri, an ardent devotee of Shrimad Rajchandraji,
is propounding the path of Bhagwan Mahavira and actualising Ashram’s mission statement – Realise one’s True Self and serve others selflessly. Thousands of aspirants congregated here for enlightening discourses, an array of meditation retreats and workshops. More than 250 centres worldwide mould the youth and children, shaping a brighter future for them. Societal Service activities are carried out through the ten-fold Shrimad Rajchandra Love and Care programme which includes health, educational, child, woman, tribal, community, humanitarian, animal, environmental and emergency relief care. The team of volunteers was truly inspired & elevated hearing the discourses and were thrilled experiencing sanctity of the site.

ARCH (Action Research in Community Health) Foundation – This NGO was founded by Late Dr. Daxaben Patel focussing on Mother and Child Care as well as promoting awareness about basic health care and empowering people with Health Education in the tribal areas of Dharampur. ARCH currently provides primary health care services to approximately 25,000 patients mainly at Mangrol dispensary and at the Dharampur dispensary along with basic health education and preventive services such as vaccinations, prenatal care, child care, etc. BCAS Foundation contributed Rs. 51,000/- towards their noble activities.

It was truly an elevating and enlightening journey for the participants. Especially the youth members were deeply moved and felt blessed at the end of journey.

Lecture Meeting on “GSTN Portal: Experiences and Issues faced by Taxpayers” held on 8th August, 2018  

Indirect Taxation Committee organised a lecture meeting on GSTN Portal: Experiences and Issues faced by Taxpayers on 8th August, 2018 at IMC, Churchgate, which was addressed by Mr. Prakash Kumar, CEO, GSTN and Mr. Nitin Mishra, EVP Technology, GSTN. BCAS President CA. Sunil Gabhawalla in his opening remarks underlined the objective of the meeting.

The Speaker, Mr. Prakash Kumar started with various facts and data available at the back end of GSTN. The Speaker also explained the facts, that in India GST and its backbone called GSTN is settling quite fast. Both the speakers requested the participants to give suggestions on the new GST returns process and formats. Mr. Nitin Mishra explained why there are technical glitches faced by users. On this occasion, 2 BCAS Publications – “Laws and Business-A Compendium-Volume 1 and Volume 2” and “Anti Profiteering and GST – ? to !” were released.

The lecture meeting was followed by Q&A session and the speakers thoroughly answered the queries of the participants. The participants got enlightened from the insights provided by the learned speakers.

FEMA STUDY CIRCLE

Study Circle Meeting on “Overview of FEMA” held on 9th August, 2018 at BCAS Conference Hall 

International Taxation Committee organised a FEMA Study Circle Meeting on 9th August, 2018 at BCAS Conference Hall where CA. Natwar Thakrar led the discussion on the topic of “Overview of FEMA”. The Group Leader deliberated upon nuances of determining residential status of an individual and other entities including branch. The concepts such as “Intention”, “Uncertain Period” and “Resident” were explained at length. The Group Leader also pointed out the journey of the country’s foreign exchange reserves right from FERA period (1991) to FEMA (1999) and the current date scenario. He mentioned that the journey of study is still continued and in the next schedule of meeting, case studies on determining residential status of – Indian citizen coming to India, Indian citizen leaving India, Foreign citizen coming to India, Foreign Citizen leaving India , Post-marriage stay of a foreigner in India , Student etc., will be discussed. The study circle is all set for learning of FEMA through series of meetings planned ahead.

The participants found the subject very interesting and got valuable inputs from the learned Speaker.

Suburban Study Circle

Suburban Study Circle Meeting on “Auditing Tools in Tally ERP 9” held on 10th August, 2018 

The Suburban Study Circle organised a meeting on “Auditing Tools in Tally ERP 9 on 10th  August, 2018 at Bathiya & Associates LLP, Andheri (E) which was addressed by CA. Punit B. Mehta.

The speaker demonstrated directly from the software of Tally ERP various shortcuts and available auditing and compliance tools which were easy to understand and which effectively reduce the time involved by the audit team. He also explained various customised add on options available in the software which can be purchased as per Company’s need. The speaker also shared techniques for faster viewing of data and how to extract legder wise analysis along with their shortcut keys and how to get direct extracts in the revised schedule III format etc.

The participants got valuable insights from the presentation shared by the speaker.

Full day Seminar on “Tax Audit” held on 11th August 2018 at BCAS Conference Hall

The Taxation Committee organised a full day Seminar on Tax Audit on 11th August, 2018 at BCAS Conference Hall. President CA. Sunil Gabhawalla gave the opening remarks. The following topics were taken up at the Seminar by the learned Speakers:

Overview of tax audit provisions including applicability in presumptive cases and calculation of limits; reporting requirements; audit quality; documentation in light of ICDS; obtaining and relying on management representations; reliance on test checks, Issues in e-filing etc. CA. Ashutosh Pednekar
Reporting in Form 3CD – certain clauses and issues arising from them Clause 12 (presumptive income), Clause 13 (which includes ICDS), Clause 14 (inventory), Clause 17 (transfer of land building less than value adopted referred to in section 43CA or 50C), Clause 26 (section 43B) and issues arising with tax audit of companies following Ind AS. CA. Saroj Maniar
Reporting in Form 3CD – new clauses inserted regarding secondary adjustment, limitation on interest deduction, GAAR and CBCR CA. Bhaumik Goda
Reporting in Form 3CD – certain clauses and issues arising from them (Clauses 15, 16, 19, 20, 21, 22, 23, 28, 29, 29A, 29B, 32, 36, 36A). CA. Bhadresh Doshi
Reporting in Form 3CD – certain clauses and issues arising from them (Clauses 8, 9, 10, 11, 18, 24, 25, 27, 30, 31, 33, 34, 35, 37, 38, 39, 40, 41, 42, 44). CA. Jagdish Punjabi

CA Ashutosh Pednekar started the first session highlighting the audit aspects in Tax Audit. He took various examples and scenarios where one has to apply his/her audit skills while performing or documenting Tax Audit and also highlighted the evolution of Tax Audit right from year 1984 to date. He further discussed about the recent changes and the Do’s and Don’ts one should keep in mind while performing Tax Audit and also the importance of documentation in Tax Audit, citing the onerous responsibilities of a tax auditor regarding the same.

CA Saroj Maniar explained about the impact of ICDS and Ind AS on various clauses in Tax Audit Report. She also pointed out various issues arising out of accounts prepared on fair value mechanism under Ind AS and tax accounts under ICDS mechanism and then dealt with clauses dealing with presumptive taxation.

CA Bhaumik Goda spoke on new clauses inserted in Tax Audit report regarding secondary adjustment, limitation on interest deduction, GAAR and CBCR. He spoke on the various practical issues while reporting the information for the new clauses with examples and case studies. He also informed participants that now a tax auditor has to make himself aware of basic international tax and transfer pricing provisions before performing
tax audits.

CA Bhadresh Doshi spoke on clauses allotted to him and discussed the issues and the reporting requirement arising from them. His immense experience on litigation helped the participants to know the jurisprudence on various issues arising from the said clauses. He also guided participants on how one should report on such clauses.

CA Jagdish Punjabi addressed the last session of the seminar covering large number of clauses. He along with chairman CA. Anil Sathe explained how reporting under section 269 SS, section 269 ST and section 269 T needs to be done. He also discussed on clauses related to TDS and shared his views on what and how one should report in new clause related to GST and Non GST expenses breakup.

The sessions in the Seminar were interactive and the speakers shared their insights on the subject. The participants benefited immensely with the guidance and practical views on various issues by the faculties. The event garnered overwhelming response and saw an attendance by over 156 participants including 40 on the new BCAS e-learning platform and also outstation participants from 11 cities/towns.

HRD Study Circle

Study Circle Meeting on “CREAM Analytics (Measuring Governance – Return on Intangible) held on 14th August, 2018 at BCAS Conference Hall

Human Resources Development Committee organised a study circle on “CREAM Analytics (Measuring Governance – Return on Intangible)” presented by CA. Jayaraman Rajah Iyer, on 14th August, 2018 at BCAS Conference Hall.

The discussion took place emphasising the following:

  1. Measuring Corporate Governance is measuring Profits, with the derived formula for the theme ‘Measure Cost Consequence Now, Now, Now’ as a corporate theme to strengthen the Corporate Governance process measuring on the go.
  1. Return on Investment is not sufficient anymore because measuring corporate fiscal assets usage is limited in its utility without measuring corporate ethical assets usage. Return on Intangible is the only way out for corporate measuring for an optimised performance and usage of both fiscal and ethical assets and deconstructing what is valueless.
  1. By Principle #5 Emergent Property Phenomenon, the discussion took place on the three principles within: (1) Conformability with Nature, (2) Simplicity and (3) Unreasonable Effectiveness on the corporate change management similar to a yogic exercise, for a company to becoming fit without any financial burden, under the theme “You don’t add something more to get something more.”

The participants learned a lot from the session delivered by the experienced Speaker.

Indirect Tax Study Circle

Study Circle Meeting on “Input Tax Credit Provisions under GST Act. (Part -1)” held on 20th August, 2018 at BCAS Conference Hall

Indirect Taxation Committee conducted a Study Circle meeting on 20th August, 2018 at BCAS Conference Hall which was led by the Group Leader CA. Parth Shah and chaired by CA. Udyan Chokshi and CA. Ishaan Patkar.

The Speakers made an in depth analysis of provisions relating to Input Tax Credit under GST. Each sub-section of provisions contained in section 16 were deliberated by the members which ignited very healthy discussion amongst the participants. All the members actively participated in discussion and appreciated the quality of issues deliberated during the session. It was a good learning experience by the participants.

“Interactive meeting with representatives of TRACES and NSDL” held on 22nd August, 2018 at BCAS Conference Hall

The Taxation Committee organised an interactive meeting with representatives of TRACES and NSDL on 22nd August, 2018. The meeting was addressed by Mr. Deepak Wayal, Asst. Manager of NSDL, and Mr. Purshottam from TRACES, Ghaziabad to discuss issues in filing and revising eTDS statements.
After the welcome address and introductory speech by the President CA. Sunil Gabhawalla, Mr. Deepak Wayal explained the role of NSDL in eTDS processing. NSDL role is preparing the utility to be used for the preparation of the eTDS returns, and also the file validation utility. He made a short presentation on the interplay of various key processes involved beginning with payment of TDS and ending with credit in payee’s Form 26AS and issue of TDS certificates by the deductors. He discussed reasons for which demands are raised on TRACES site, due to incorrect feeding of data while filing the statements and the precautions which need to be taken while filing the same.

Thereafter, Mr. Purshottam who had travelled all the way from Ghaziabad, explained functionalities available on the TRACES website, and how the same have changed in the last decade. He also explained reasons why demands are raised on TRACES and how the same can be avoided. He also took the delegates present through the new upcoming changes both in the short term and in the long term. The long term changes also include use of block chain technology in eTDS processing. He also briefed the members present about the new proposal to apply for and issue lower / NIL TDS certificates under section 197 / 195 online, which will reduce human interface.

Both the speakers took all the questions not only from the floor, but also those raised by online participants who were viewing the event as a live webinar. The interaction was highly appreciated by one and all present, both offline and online and the participants got enlightened on the subject.

Students’ Study Circle on ‘Audit from Article’s Perspective in recent times’ and ‘Important Clauses and Recent Amendments in Tax Audit Report (Form 3CD)’ held at BCAS Conference Hall on 23rd August, 2018

The Students Forum under the auspices of HRD Committee organised a Students’ Study Circle on the abovementioned topics on 23rd August, 2018 at BCAS Conference Hall.

The study circle was led by student group leaders Mr. Vishal Manwani and Ms. Surabhi Tawade under the mentorship of CA. Chirag Doshi. CA. Rajesh Muni, Chairman of the HRD Committee gave his opening remarks and encouraged students to actively participate in the events organised by the Students Forum. Mr. Jimit Doshi, the student co-ordinator introduced the mentor, group leaders and briefly explained the topics.

The motive of the study circle was to make the students aware of the recent developments in Statutory Audit and Tax Audit from the article’s perspective and highlight the new reporting requirements in Tax Audit report (Form 3CD). Both the group leaders covered their respective topics in an interactive manner and shared their practical experience on crucial issues.

CA Chirag Doshi guided the students on the increased responsibility of auditors in the current scenario and gave them useful tips to perform an effective audit. Overall, the study circle was a perfect blend of technical depth and practical insight.

CA Raj Khona, Incharge for Students Activities then briefed the participants about the forthcoming events which will be organised by the Students Forum and encouraged them to come forward to lead study circles. Ms. Neelam Soneja, the student co-ordinator thanked the group leaders and mentor for sharing their knowledge on the subject for the benefit of the participants.

The study circle proved to be a wonderful experience for the students in attendance. The feedback from the participating students was very positive.

MISCELLANEA

1. Culture

22.  Forger programming – the best skill to teach
children is reinvention

 

The author of Sapiens reveals what
2050 has in store for humankind and in his part one it has dealt – Change is
the only constant.

 

Humankind is facing unprecedented
revolutions, all our old stories are crumbling and no new story has so far
emerged to replace them. How can we prepare ourselves and our children for a
world of such unprecedented transformations and radical uncertainties? A baby
born today will be thirty-something in 2050. If all goes well, that baby will
still be around in 2100, and might even be an active citizen of the 22nd
century. What should we teach that baby that will help him or her survive and
flourish in the world of 2050 or of the 22nd century? What kind of skills will
he or she need in order to get a job, understand what is happening around them
and navigate the maze of life?

 

Unfortunately, since nobody knows
how the world will look in 2050 – not to mention 2100 – we don’t know the
answer to these questions. Of course, humans have never been able to predict
the future with accuracy. But today it is more difficult than ever before,
because once technology enables us to engineer bodies, brains and minds, we can
no longer be certain about anything – including things that previously seemed
fixed and eternal.

 

A thousand years ago, in 1018,
there were many things people didn’t know about the future, but they were
nevertheless convinced that the basic features of human society were not going
to change. If you lived in China in 1018, you knew that by 1050 the Song Empire
might collapse, the Khitans might invade from the north, and plagues might kill
millions. However, it was clear to you that even in 1050 most people would
still work as farmers and weavers, rulers would still rely on humans to staff
their armies and bureaucracies, men would still dominate women, life expectancy
would still be about 40, and the human body would be exactly the same. Hence in
1018, poor Chinese parents taught their children how to plant rice or weave
silk, and wealthier parents taught their boys how to read the Confucian
classics, write calligraphy or fight on horseback – and taught their girls to
be modest and obedient housewives. It was obvious these skills would still be
needed in 1050.

 

In contrast, today we have no idea
how China or the rest of the world will look in 2050. We don’t know what people
will do for a living, we don’t know how armies or bureaucracies will function,
and we don’t know what gender relations will be like. Some people will probably
live much longer than today, and the human body itself might undergo an
unprecedented revolution thanks to bioengineering and direct brain-computer
interfaces. Much of what kids learn today will likely be irrelevant by 2050.

 

At present, too many schools focus
on cramming information. In the past this made sense, because information was
scarce, and even the slow trickle of existing information was repeatedly
blocked by censorship. If you lived, say, in a small provincial town in Mexico
in 1800, it was difficult for you to know much about the wider world. There was
no radio, television, daily newspapers or public libraries. Even if you were
literate and had access to a private library, there was not much to read other
than novels and religious tracts. The Spanish Empire heavily censored all texts
printed locally, and allowed only a dribble of vetted publications to be
imported from outside. Much the same was true if you lived in some provincial
town in Russia, India, Turkey or China. When modern schools came along,
teaching every child to read and write and imparting the basic facts of
geography, history and biology, they represented an immense improvement.

 

In contrast, in the 21st century we
are flooded by enormous amounts of information, and even the censors don’t try
to block it. Instead, they are busy spreading misinformation or distracting us
with irrelevancies. If you live in some provincial Mexican town and you have a
smartphone, you can spend many lifetimes just reading Wikipedia, watching TED
talks, and taking free online courses. No government can hope to conceal all
the information it doesn’t like. On the other hand, it is alarmingly easy to
inundate the public with conflicting reports and red herrings.

 

People all over the world are but a
click away from the latest accounts of the bombardment of Aleppo or of melting
ice caps in the Arctic, but there are so many contradictory accounts that it is
hard to know what to believe. Besides, countless other things are just a click
away, making it difficult to focus, and when politics or science look too
complicated it is tempting to switch to funny cat videos, celebrity gossip or
porn.

 

In such a world, the last thing a
teacher needs to give her pupils is more information. They already have far too
much of it. Instead, people need the ability to make sense of information, to
tell the difference between what is important and what is unimportant, and
above all to combine many bits of information into a broad picture of the
world.

 

In truth, this has been the ideal
of western liberal education for centuries, but up till now even many western
schools have been rather slack in fulfilling it. Teachers allowed themselves to
focus on shoving data while encouraging pupils “to think for themselves”.

 

Due to their fear of
authoritarianism, liberal schools had a particular horror of grand narratives.
They assumed that as long as we give students lots of data and a modicum of
freedom, the students will create their own picture of the world, and even if
this generation fails to synthesise all the data into a coherent and meaningful
story of the world, there will be plenty of time to construct a good synthesis
in the future. We have now run out of time. The decisions we will take in the
next few decades will shape the future of life itself, and we can take these
decisions based only on our present world view. If this generation lacks a
comprehensive view of the cosmos, the future of life will be decided at random.

 

(Source: WIRED – By Yuval Noah
Harari, 12 August 2018)

 

2. 
Technology

23.  Blockchain, machine learning, and a future
accounting

 

The inventor of bitcoin and
blockchain technology goes by the name Satoshi Nakamoto. Though Nakamoto claims
to be a Japanese man born in 1975, most experts believe Nakamoto is a
pseudonym. Some have gone so far as to theorize that Nakamoto isn’t a single
person at all, but rather a collective of people. The mystery persists to this
day, despite the efforts of many of the world’s best journalists.

 

As fascinating as this story is,
the wide-ranging application of blockchain technology is even more compelling.
In a world where disruption is a buzzword, it’s still rare for a technology to
radically alter the face of an industry. For accountants and auditors, however,
blockchain has the potential do just that, especially when combined with other
innovations such as machine learning. Because accounting records contain highly
structured sets of data, this technology is perfectly suited for our profession.
Professionals who aren’t at the forefront of learning and testing ways to adopt
these technologies risk getting left behind.

 

Blockchain: Way more than bitcoin

While blockchain was created to
facilitate bitcoin, the technology now extends far beyond the world of
cryptocurrency. An important facet of blockchain technology is that it is
decentralized, eliminating the middleman. Rather than storing data in one
location, blockchain technology shares data across a massive peer-to-peer
network. Until now, we have relied on institutions or trusted third parties,
such as banks, government registries, and other intermediaries, to be in the
middle of our transactions to create validity.

 

The way blockchain technology is
structured is said to make it nearly impossible for records to be falsified or
corrupted. This is because as transactions are permanently added to the ledger
(like blocks in a chain), information is transparently presented to all parties
involved and one block is then linked to the next in the chain. Files can also
be time-stamped and marked with a virtual fingerprint known as a “hash
string” to ensure they remain unmodified. Because hackers cannot access
data through a central point of vulnerability, blockchain networks are nearly
impenetrable.

 

How blockchain could alter accounting

Blockchain adoption is still in its
infancy, but that hasn’t stopped experts from speculating on the vast changes
the technology may bring. In a white paper published by Deloitte, the firm
hypothesizes that blockchain could “shapeshift the nature of today’s
accounting.” No wonder, then, that all of the Big Four accounting firms
are spending a great deal of time and money investigating blockchain
applications. For example, Deloitte has established a blockchain consulting business
and EY accepts bitcoin for settling invoices.

 

What might a blockchain-based
accounting system look like? Theoretically, it would allow secure, verified
information to be stored and accessed by multiple parties across multiple
locations. Because a blockchain is encrypted and consensus verified, it
essentially notarizes itself. All of this adds up to the possibility of a
replacement for the double-entry accounting method that has been commonplace
since the Renaissance.

 

“Imagine a world where
accounting was not double entry, but maintained in ledgers simultaneously
recording the same item in multiple locations on multiple computers, all
self-balancing and checking every few minutes,” wrote Tony Hobrow, CEO of
VenturesOne Asia and NexAssure Group, in a LinkedIn article. “No
middlemen, no reconciliation, no corrupt date, no need for month-end cycles, no
need to bring together all the different books and records of departments and
counter-parties.”

 

That, in short, is the promise of
blockchain accounting.

 

Combining blockchain with artificial intelligence

Blockchain may transform the
accounting world as we know it, but other technological advances are already
making waves. Chief among them are innovations from the world of artificial
intelligence (AI). A 2018 analysis by International Data Corp. predicts AI
spending will reach $46 billion by 2020.

 

Machine learning is a subfield
within AI that should be of particular interest to accounting professionals.
Arthur Samuel, who coined the term, defines machine learning as giving
“computers the ability to learn without having to be explicitly
programmed.” With machine learning, tasks that have traditionally required
human intervention can be automated. This technology increases efficiency
within the accounting profession to an unprecedented degree, which in turn will
affect our future workflow process and how we interact with clients.

 

When you combine machine learning
and blockchain, you get nothing short of a technological revolution. It’s
possible to envision a world where accounting and auditing happen in real time,
with all relevant parties being informed every step of the way — a true
continuous audit. That future may still be a ways off, but now is the time to
start assessing which processes in your firm could be amenable to AI
technology. Accounting firms and corporate accounting departments should start
not only learning how to take advantage of the technology, but also testing new
ways of working internally with their teams and externally with clients. Starting
small with expense reporting or document collection applications can be a way
to gain confidence in the benefits of utilizing technology like this before
taking on larger applications like general ledger systems.

 

Visions of the future

What does this mean for accountants
and auditors? The short answer is change is on the horizon. While even the most
forward-thinking thought leaders don’t foresee a world where accounting
processes can exist without humans, there’s no denying that roles and workflows
will look radically different in the next few years.

 

Auditors will spend much less time
performing audits, and more time designing, reviewing, and verifying how
information flows between systems. Rather than audits being performed at
regular intervals, blockchain and machine learning present the possibility of a
true continuous audit. All of this technology adds up to more time for human
connection with your internal teams, as well as your external clients, with
soft skills, analytical abilities, and advisory services becoming important in
delivering value to an organization. With continuous audit, trends and missing
data could be identified much earlier, allowing for problems to be proactively
addressed, rather than reactively reported. Continuous auditing also would give
peace of mind to businesses and their investors while also, hopefully, reducing
many of the tasks that accounting firms often have written off or not charged
for.

 

A similar shift could also occur
for accountants. Everyday data-entry tasks are poised to become much easier,
freeing up time for accountants to focus on analysis and insights. Accountants
and firms that develop these skills now will be able to differentiate
themselves as the technology becomes widespread. The days of offering value
simply through accurate data entry and calculations are numbered, so taking the
time to retool now and work on your advisory skills is an investment in the
future of our work.

 

There’s no getting around the fact
that technologies like blockchain and machine learning are no longer a tiny dot
on the horizon. The future is here, and accounting professionals must be
willing to adapt.

 

(Source: Newsletter/CPA Insider –
By Amy Vetter, CPA/CITP, CGMA – 20 August 2018)

 

3.   News –

 

24.  The Isolated error

 

BT blames human error as it reveals £500m pension deficit gaffe

 

Mistake by actuary comes after
accounting scandal last year that wiped £8bn off its value. BT has revealed
another accounting error after its pension deficit was underestimated by £500m.

 

The telecommunications company,
which had £8bn wiped off its stock market value in 2017 after admitting to an
accounting scandal at its Italian unit, blamed the latest gaffe on an “isolated
human error”.

 

The error was made by BT’s
independent actuary, Willis Towers Watson, in its calculation of the company’s
pension deficit at 31 March. The restated pension deficit stands at £3.9bn as
at the end of June.

 

Simon Lowth, BT’s chief financial
officer, said: “We have received assurances from Willis Towers Watson that
there are no other errors. As you would expect, we are undertaking further
review procedures around that calculation.

 

“We spent a lot of time with WTW
making sure we understand what created the error. It was an isolated human
error that they identified. We are also working on what they need to do to
strengthen their controls.”

 

Following the £530m Italian
accounting scandal, which cost the outgoing BT chief executive, Gavin
Patterson, £4m in bonus payouts, the company’s accountant, PWC, was eventually
fired. BT would not comment on its future relationship with WTW.

 

Lowth pointed out the error had no
impact on the company’s profits, cashflow, the triennial valuation of its
pension deficit conducted last year, or any members of the BT pension scheme.
Nevertheless, another financial error was the last thing BT needed.

 

Laith Khalaf, a senior analyst at
Hargreaves Lansdown, said: “Clearly this slip doesn’t inspire confidence.”

 

BT said the correction amounted to
less than 1% of its total pension liabilities of just over £57bn.

 

WTW said the error was due to “an
actuarial assumption not being accurately reflected in our actuarial
calculations”.

“Willis Towers Watson has stringent
controls in place to confirm the accuracy of the calculations that we provide
to clients, and the error has now been corrected,” a spokesman said. “We are
working closely with BT to support their review of the matter.”

 

Patterson, who said he would still
be in place in November to deliver the company’s half-year results, said BT had
made a good start to the year. “We are making positive progress against our
strategy,” he said.

 

In the first quarter, Patterson
said, it had made the first 900 of a planned 13,000 job cuts over the next
three years to save £1.5bn.

 

BT’s financial performance for the
second quarter was slightly ahead of forecasts, and the company reaffirmed its
guidance for full-year revenue and profit.

 

This prompted
a 4% share price rise as investors responded positively after a string of
negative news that had left its share price down more than one-quarter in the
past year.

 

Total revenue for the quarter was
down 2% to £5.7bn. Reported profit before tax was up 68% to £704m, due to the
hit the company took relating to the Italian accounting scandal. Adjusted
profit was up 3% at £816m. Net debt increased to £11.2bn from £8.8bn.

 

The company has stopped reporting
broadband and TV subscriber numbers, which fell in the past two quarters, as it
focuses on increasing average revenue per customer rather than the number of
sign-ups.

 

Paolo Pescatore, an independent
telecoms analyst, said: “All providers will be seeking to lure households with
attractive offers ahead of the new Premier League season. BT must do a better
job of signing up TV subscribers and maximise BT Sport across its base.”

 

(Source: The
Guardian (International edition) – 27 July 2018)

 

25.  PWC doing double duty as auditor and tax
lobbyist

 

PwC billed $10.74 million since
2013 as the exclusive registered lobbyist on tax reform for a coalition that
includes several audit clients.

The largest audit firm in the
world, PricewaterhouseCoopers LLP, is a registered tax lobbyist for a coalition
of some of the largest multinationals that includes a large number of its audit
clients.

 

PwC has earned $10.74 million since
2013, according to the Senate’s lobbying disclosure database, as the exclusive
registered lobbyist for the Alliance for Competitive Taxation, on a single
issue: tax reform.

 

(Source:
www.marketwatch.com, 30 July 2018)

 

Representations

1.  Dated: 8th August 2018

     To: The Finance Secretary, Govt. of
India

    Subject: CBDT directive for offering
incentives to Commissioners of Income-tax (Appeals) for passing quality orders
based on Enhancement of assessment and imposition of fresh penalty and other
issues

   Representation by: IMC Chamber of
Commerce and Industry; Bombay Chartered Accountants’ Society; Chartered
Accountants Association, Ahmedabad; Chartered Accountants Association, Surat;
Karnataka State Chartered Accountants’ Association; Lucknow Chartered
Accountants’ Society.

 

2.  Dated: 9th August 2018

    To: The Ministry of Finance, Govt. of
India

   Subject: Comments and Suggestions
with regard to framing of Income-tax rules relating to Significant Economic
Presence as per Explanation 2A to Section 9(1)(i) of the Income-tax Act, 1961
(the Act)

    Representation by: Bombay Chartered
Accountants’ Society.

 

3.  Dated: 21st August 2018

    To: Chairman, Central Board of
Direct Taxes, Govt. of India

   Subject: Revised Tax Audit Report in
Form 3CD for AY 2018-19 –recommendations soliciting immediate intervention

  Representation by: IMC Chamber of
Commerce and Industry; Bombay Chartered Accountants’ Society; Chartered
Accountants Association, Ahmedabad; Chartered Accountants Association, Surat;
Karnataka State Chartered Accountants’ Association; Lucknow Chartered
Accountants’ Society.

 

4.  Dated: 27th August 2018

    To: Securities and Exchange Board of
India (SEBI)

    Subject: Consultative paper on
proposed SEBI (Feduciaries in the securities market) (Amendment) Regulations
Representation by: Corporate and Allied Laws Committee of the Bombay Chartered
Accountants’ Society.

 

5.  Dated: 28th August 2018

     To: Chairman, Central Board of
Direct Taxes, Govt. of India

     Subject: Representation on Gratuity
Exemption Limits

     Representation by: IMC Chamber of
Commerce and Industry; Bombay Chartered Accountants’ Society. 

 

Note: For full Text of the above Representations,
visit our website www.bcasonline.org 

GOODS AND SERVICES TAX (GST)

I  High Court

 

8.  2018 (14) GSTL 164
(P&H.) Silicon
Constructions Pvt. Ltd. vs Union of India
dated 29th May, 2018

Remedy where Form GST TRAN 1 could not be filed on account
of technical glitches.

 

Facts

The Petitioner confronted
technical glitches in GSTN during filing of the return in Form GST TRAN 1. The
issue was communicated to the department immediately through an E-mail. The
department responded that they were working on the issue and would update the
same. After the due date, as the facility to file TRAN-1 was disabled, a letter
was sent requesting carry forward of credit in their Form GSTR-3B manually, but
no response was received. Also letters were submitted to the department on
which no action was taken. Petitioner therefore filed writ in nature of mandamus
directing the Respondent to reopen the online portal.

 

Held

The Hon’ble High Court by disposing the writ petition
directed the authority to take decision on the letters filed in accordance with
law by passing speaking order and after affording opportunity of hearing within
a period of one week from the date of decision of the order.

 

II.    Authority for
Advance Ruling:

 

9. 
[2018-TIOL-114-AAR-GST] Coffee Day Global Ltd. dated 26th
July, 2018

The supply of non-alcoholic beverages/ingredients to SEZ
units using coffee vending machines by the applicant do not qualify as zero
rated supply, since they are not in relation to the authorised operations.

 

Facts

Applicant is engaged in the supply of non-alcoholic beverages
to SEZ units using coffee vending machines and undertakes two types of
transactions. In the first case, beverage vending machines are installed inside
SEZ premises and beverages are prepared and supplied to SEZ units which are
consumed by their employees and SEZ units are charged based on number of cups.
Secondly, they install beverage vending machines inside SEZ premises and supply
beverage ingredients to the SEZ units and bills based on the quantity of
ingredients supplied. The question before the authority is whether supply of
non-alcoholic beverages to SEZ units using coffee vending machines is in the nature
of zero rated supply defined u/s.16 of the IGST Act 2017.

 

Held

The authority observed that the term zero rated supply u/s.
16 of the IGST Act means supply of goods or services to a SEZ developer or
unit.  Section 15(9) of the SEZ Act
requires that the SEZ Unit shall carry out only the authorised operations in
the Unit. Further, the term “authorised operations” is also defined u/s.
2(c) of the SEZ Act, 2005. The authority noted that the word “any supply” has
not been used in section 16 of the IGST Act. Accordingly, in terms of the SEZ
Act and provisions of Rule 89 of the CGST Rules, 2017 which requires that in
respect of supplies to a Special Economic Zone unit or a Special Economic Zone
developer, the application for refund shall be filed by the supplier of goods
after such goods have been admitted in full in the Special Economic Zone for authorised
operations, the services supplied to the SEZ unit shall be necessarily for authorised
operations only. Since the activity undertaken by them is not certified as an
authorised operation by the proper officer of the SEZ, the transaction shall
not be considered as a zero rated supply.  

 

Service Tax

I High Court

 

45.  [2018] 95
taxmann.com 319 (Bombay-HC)
Commissioner of Service Tax, Mumbai-VI vs. Shri Krishna Chaitanya Enterprises
Date of Order: 25th January, 2018

Since in terms of provisions of MOFA Act, 1963, the
builder/developer is statutorily obliged to assume responsibility for
maintenance and repairs of building till the process of conveyance is
completed, such activity cannot be construed as provision of “management,
maintenance and repair services”.
 

 

Facts

The assessee, being a builder and developer engaged in
construction of residential complexes, inter alia, collected certain
sums from prospective flat buyers as maintenance cost towards expenses for
maintenance and repair of building till conveyance of property to flat buyers.
Revenue alleged that said sums collected would be chargeable to service tax
under category of “management, maintenance or repair services”. During the
appellate proceedings, the Tribunal set aside impugned demand. Being aggrieved,
revenue filed present appeal raising a substantial question of law as to
whether the act of undertaking maintenance and repairs of flats till conveyance
and collecting certain charges for the same from flat buyers can be regarded as
provision of “management, repairs and maintenance services” and thereby,
whether the Hon’ble Tribunal was justified in setting aside the impugned
demand.

 

Held

The Hon’ble High Court noted that in terms of Maharashtra
Ownership Flats (Regulation of the Promotion of Construction, Sale, Management
and Transfer) Act, 1963 (hereinafter referred to as “MOFA”), the
builder/developer is regarded as promoter and that, various provisions listed
u/s. 5 to section 13 of MOFA deal with the duties and obligations to be
fulfilled by promoter so as to provide for safeguarding and protecting the
interest of flat takers and unit purchasers to ensure them a title in property.
The said Act provides for complete regulatory mechanism till conveying the
property to a legal entity namely a co-operative housing society or a company,
which is required to be formed by the promoter.

 

Accordingly, the Court observed that till the process of
conveying the property is complete, the builder/developer as a promoter is
statutorily obliged to hold on to the property and the money for complete
discharge of his eventual duties and therefore, he has to maintain, safeguard
and protect the property and look after the day-to-day wear and tear. In this
background, the Court held that when the builder/developer maintains the
structure or repairs, he is not rendering a taxable service in the sense
envisaged by the Financial Act, 1994 as such activities are performed as statutory
obligation casted upon him by MOFA. Further, the High Court held that it is not
a contract simplicitor of maintenance of immovable property, as if there is an
existing building comprising of flats, fully occupied, the maintenance and
upkeep of which is handed over under a contract.

 

It is a statutory obligation superimposed on a contract to
sell a flat/unit in a building to be constructed on a piece or parcel of land
in terms of MOFA. In other words, the maintenance of property till conveyance
is the statutory obligation of builder/developer in terms of provisions of MOFA
and thus cannot be equated with provision of taxable service. Therefore, the
High Court affirmed the decision of Tribunal and revenue’s appeal was
dismissed.

 

II.   Tribunal

 

46.  2018 (14) GSTL 254
(Tri.-ALL.) Parle Biscuits Pvt. Ltd. vs. Commissioner of Central Excise,
Allahabad
Date of Order: 4th April, 2018

CENVAT Credit on capital goods cannot be denied on grounds
that the same was availed on the basis of endorsed invoices.

 

Facts

The CENVAT credit on capital goods received two years back by
the Appellant on the basis of invoice endorsed by the original recipient was
disallowed by the department on grounds that endorsed invoices cannot be held
as valid documents for the purpose of availment of CENVAT credit.
Superintendent and Inspector of Central Excise endorsed the invoices at the
request of the original recipient in favour of Appellant.

 

Held

The Hon’ble Tribunal held that there was no dispute about
receipt of the capital goods and duty paid thereon. Substantive benefits cannot
be denied by raising grounds of procedural violation. Hence, set aside the
impugned orders and allowed the appeal

 

47.  2018 (14) GSTL 255
(Tri.-Del.) MTNL vs.
Commissioner of Service Tax, Delhi
Date of Order: 30th January, 2018

Service tax collected from customers but delayed in
depositing the same with Government account, attract charge of interest.

 

Facts

Appellant collected the
consideration for the services rendered along with the service tax thereon.
However, the service tax collected from such customers was deposited with
Government account after an estimated delay of two months. Demand to the extent
of payment was dropped, however small amount of interest was demanded and
interest was charged. Aggrieved by the order appeal was filed stating that
since the demand for service tax has been dropped, there is no justification
for demand of interest.

 

Held

The Hon’ble Tribunal held that service tax amount collected
by the Appellant has been deposited with the Government only after delay.
Hence, the charging of interest is fair and reasonable. Appeal disallowed by
upholding the demand of service tax of a small amount along with interest and
penalty.

 

48.  2018 (14) GSTL 250
(Tri.-Ahmd.) Vijay Tanks & Vessels Pvt. Ltd. vs. Commissioner of C. Ex.
& S.T., Anand 
Date of Order: 22nd December, 2017

Registration is not a pre-requisite to claim credit.

 

Facts

Assessee availed CENVAT credit on various input services that
were used to provide output services of works contract services, supply of
tangible goods services, consulting engineering services, business auxiliary
services etc., at various locations/sites. However, certain locations/sites
were not included in the centralised registration. These locations/sites were
included only after several reminders from department. Department issued a show
cause notice demanding CENVAT credit availed along with interest and proposed
penalty thereon which was later confirmed by the Adjudicating and the Appellate
Authorities. Aggrieved Appellant assessee therefore preferred appeal before
the  Hon’ble Tribunal.

           

Held

The Hon’ble Tribunal held that credit cannot be denied merely
on the ground that respective sites were not included in centralised
registration certificate issued to the Appellant. There is no dispute of the
fact that the input services were utilised in providing the output services.
Accordingly, the impugned order was set aside and appeal was allowed with
consequential relief.

 

49.  [2018] 95
taxmann.com 242 (Chennai – CESTAT) Mail Related Services vs. Commissioner of
Service Tax, Chennai
Date of Order: 20th June, 2018

The “franking charges”, as collected by assessee from its
clients and paid to post master general, being a statutory levy in terms of
Indian Post Office Act, 1898 are not includible in taxable value in terms of
section 67 of Finance Act, 1994. The rebate given by post office to assessee on
franking charges cannot be said to be consideration for promotion and marketing
of services of postal department so as to attract service tax under “business
auxiliary services”.

 

Facts

The appellants are engaged in providing mailing services
using franking machines obtained on license from the postal department. They
collect the mails from their clients, frank them as per weight and then mail
the documents/packets. For the said activity, appellant collects service
charges from customers and duly discharges service tax liability on said
service charges under category of “Mailing List Compilation and Mailing
Services”. In respect of franking cost, either the clients directly take out
demand drafts in favour of the Post Master General or in some cases, appellants
pay the franking cost on behalf of their customers and get it reimbursed from
the latter subsequently. Department alleged that as reimbursement of cost of
postage received from the clients cannot be termed as pure agent expenditure,
such franking charges are includible in value of taxable services in terms of
section 67 of Finance Act, 1994. Besides, they also receive a rebate of 3% on
the franking charges from postal department, which was treated by the
department as chargeable to service tax under category of “business auxiliary
services” for promoting or marketing of postal service.

 

Held

As regards dispute pertaining to inclusion of franking
charges in the taxable value, the Hon’ble Tribunal noted that the postage is a
“statutory duty” as defined by the Indian Post Office Act, 1898 and that this
statutory duty is permitted to be paid to the Government of India by way of
affixing physical postage stamps and by franking of the appropriate postage on
the letters by making use of the licensed franking machines. As per section 17
(2) of the Indian Post Office Act, 1898 postage franked through Franking
Machine is a statutory levy. The Tribunal held that since such charges are
either directly collected by postmaster general or paid by them to the
postmaster general on behalf of clients, said charges cannot be said to be
accrued to the appellant and thus, cannot be made part of taxable value.
Further, it was held that ratio laid down by the Hon’ble Supreme Court in Union
of India vs. Intercontinental Consultants & Technocrats (P.) Ltd. [2018] 91
taxmann.com 67/66 GST 450
is squarely applicable in the present case.
Therefore, the Tribunal held that franking cost cannot be included in
computation of value of taxable service and set aside impugned demand.  Regarding next issue of demand under
“business auxiliary services” on rebate received from postal department, it was
noted that the entire activity of dispatch is effected on behalf of the
business entities and the appellants are therefore, the users of the post office.
The transaction of franking or usage of the postal service is solely between
the appellants and the post office with the former as a customer of the latter.
Tribunal observed that the rebates are offered as an incentive for the reduced
workload on the post office staff, to encourage use of franking machines,
especially where the volumes are above a certain threshold level. Thus, such
rebates can hardly be designated as commission or remuneration for promoting
the postal services. The Tribunal referred to its own decision in United
Mailing Services, Sai Mailing Services vs. CST [Appeal No. ST/257/2011, dated
08-09-2015]
holding that rebate received from the postal department on
franking charges is not liable to be taxed. Accordingly, impugned demand rebate
received was dropped.

 

50.  [2018] 95
taxmann.com 277 (Mumbai – CESTAT) Ajit India (P.) Ltd. vs. Commissioner of
Service Tax, Mumbai-II
Date of Order: 25th May, 2018

The Tribunal held that the activity of production, supply
and installation of aluminum structural glazing, sliding doors and window to
residential buildings is a composite supply involving sale of goods as well as
provision of service and thus, chargeable to service tax under “works contract
services”.

 

Facts

The appellants were inter alia engaged in production,
supply and installation of structural glazing, sliding doors and window to
residential buildings. The contract for installation of aluminum structures was
entered into with the builders and at times with individuals. The work involved
fabrication of the required components for structural glazing/windows at their
factory and installation of the same at various sites. The contract involved
designing, supply, fabrication, erection and commissioning and there was no
separate service contract for installation work with the customers. Revenue
alleged that the activity undertaken would come under the ambit of completion
and finishing services in relation to residential complex under the category of
“construction of complex service” and not under “erection commissioning and
installation”. Appellant submitted that the contract was composite and there
was no separate element of service or sale. During the appeal proceedings, the
first appellate authority held that there is no contract for sale of goods to
the service recipient and consequently in the absence of actual sale of goods,
impugned demand was confirmed. Being aggrieved, appellant filed present appeal.

 

Held

The Tribunal held that the conclusion reached by the first
appellate authority is erroneous inasmuch as just because VAT is paid at
composite rate, it cannot be said that there is no sale of goods involved. The
Tribunal noted that the major amount charged by appellant relates to the value
of materials. Also, reliance was placed on the decisions in case of Vistar
Constructions (P.) Ltd. vs. CST [ST/53190/2014, dated 01-04-2016] and URC
Construction (P.) Ltd. vs. Commissioner of Central [ST/00284/2008, dated
14-07-2016]
, the Tribunal held that in present case the activities
undertaken by appellant constitutes composite supply involving supply of goods
as well as services and thus, would be taxable under category of “works
contract services” and the same cannot be vivisected so as to bring it under
service tax net under category of “construction of residential complex
services”. Accordingly, the Tribunal allowed present appeal by setting aside
impugned demand. 

 

51. 
[2018-TIOL-2436-CESTAT-BANG]
Commissioner of Central Excise, Cochin vs. Coconut Lagoon Kumararkom
Date of Order: 31st July, 2018

Ayurvedic treatment supervised by a doctor is therapeutic in
nature and therefore not  covered by
Health club and Fitness services. Mere fact that the Ayurvedic centres are
located in the resorts and sometimes the duration of treatment is for one or
two days, it cannot be concluded that the massages or treatments are only for
general well-being and not for any therapeutic value.

  

Facts

Assessee is engaged in running resorts and are operating an
Ayurvedic treatment center. The specialised treatments provided include
treatments for ailments such as obesity, trauma, bronchial disorders etc. All
the treatments given are as per the standard ayurvedic medical texts and the
type of treatment and duration will be decided by a qualified and registered medical
practitioner after conducting the diagnosis. The department contended that the
services provided fell under the category of health club and fitness service
and accordingly issued a show cause notice. On appeals filed, the learned
Commissioner (A) has allowed the appeals of the assessee. Accordingly, the
department is in appeal.

 

Held

The Tribunal noted the definition of health club and fitness
service which means physical well-being service such as, sauna and steam
bath, turkish bath, solarium, spas, reducing or slimming salons, gymnasium,
yoga, meditation, massage (excluding therapeutic massage) or any other like
service.
The term therapeutic massage is explained by CBEC Circular
No.B11/1/2002-TRU dated 1.8.2002 to mean a massage provided by qualified
professionals under medical supervision for curing diseases such as arthritis,
chronic low back pain and sciatica etc. The Tribunal noted that the centers
maintain case sheets, treatment files and a treatment schedule. The ayurvedic
doctors attached, supervise the treatment, prescribe food restrictions and the
type of oil that should be used. It is therefore seen that these centres
provide a holistic ayurvedic treatment, which includes massages given by
qualified professors under medical supervision for curing diseases. Thus, in
view of documentary findings produced by the respondents, it is seen that the
ayurvedic centres are providing therapeutic treatment under ayurvedic system
and therefore not covered by the definition of Health Club and Fitness Services
and therefore are not liable for service tax.

 

52. 
[2018-TIOL-2351-CESTAT-MAD] Siemens Building Technologies Pvt. Ltd vs.
Commissioner of Central Excise, Puducherry
Date of Order: 21st February, 2018

When goods are manufactured and thereafter installed in a single transaction charged compositely, the
predominant activity is manufacture and installation is only incidental to the
activity of manufacture.

 

Facts

Assessee is engaged in manufacture of Electronic Safety
System and Accessories. It receives composite orders for supply, installation
and commissioning of the system. They follow two patterns of billing depending
upon the purchase orders. In the first case, the charges for manufacture of the
system and the installation are raised compositely and excise duty is
discharged on the whole amount. Whereas, in the second case, the value of the
system manufactured is shown separately on which excise duty is discharged and
in respect of the installation charges, service tax is discharged. Department holds
a view, that service tax is required to be charged on the charges charged
compositely. It is argued that the activity of installation is only incidental
to the sale transaction in a composite transaction and not an independent
service liable for service tax.

           

Held

The Tribunal observed that when the goods are manufactured
and thereafter installed, the predominant activity is manufacture and
installation is only an incidental activity. The contention of the department
that service tax is payable on the whole amount, ignores the taxable event of
manufacture completely. Further, the contention that the service tax rate was
higher than the rate of central excise during a given period appears to be
totally unsound application of fiscal statutory provisions. Thus, the impugned
order is set aside.

 

53. 
[2018-TIOL-2349-CESTAT-ALL] ICS Food Pvt. Ltd vs. Commissioner of
Service Tax, Noida Date of Order: 12th April, 2018

Services by an outdoor caterer in relation to serving of
food and beverages in a canteen maintained by a factory under the Factories
Act, 1948 is exempt under entry 19A of the mega exemption
notification-25/2012-ST dated 20.06.2012.

 

Facts

Assessee enters into an agreement with various factories for
supply of food and beverages to the employees of the factory as per the agreed
charges. The main dispute pertains to entitlement of exemption Notification
No.25/2012-ST as amended by Notification No.14/2013-ST dated 22/10/2013 to the
services provided in relation to serving of food or beverages by a canteen
maintained in a factory, as required under the Factories Act, 1948 having the
facility of air-conditioning or central air-heating at any time during the
year. The department holds a view that the exemption is available to a canteen
run by factories themselves. It was
argued that the notification uses the phrase “canteen maintained in a factory”
and not “canteen maintained by a factory” which spells out the intent of the
exemption.

 

Held

The Tribunal noted in the negative list based service tax
regime “canteen” and “outdoor caterer” is not defined.
Therefore, it would be prudent to take recourse to definitions provided under
the Finance Act, 1994 as these were in existence till 30/06/2012. Even if such
services are considered as OUTDOOR CATERING, those have been used for providing
services in relation to serving food and beverages in a canteen.Thus, the
services provided is covered by Entry No.19A of the mega exemption notification
and exempted from payment of Service Tax.

GLIMPSES OF SUPREME COURT RULINGS

18.  Tapan Kumar Dutta vs. Commissioner of Income
Tax, West Bengal (24.04.2018) (2018) 404 ITR 28 (SC)

 

Search and seizure – Assessment of third person – A notice u/s.
158BD could be issued to a person with respect to whom search was not conducted
but undisclosed income was found as belonging to such person from the material
seized from the residence or business premises of the person with respect to
whom search was made u/s. 132 – Notice issued u/s. 158BC together with notice
issued on the person searched not valid – Subsequent notice u/s. 158BD was
valid

 

The Appellant was a partner in a
Partnership Firm by name “Nityakali Rice Mill” (in short ‘the Firm’).
On 06.11.1998, a search was conducted at the business premises of the Firm by
the Income Tax Department and several documents/books including a sum of Rs. 34
lakh were seized.

 

Thereafter, on 09.09.1999, a notice
was issued to the Appellant by the Assessing Officer u/s. 158BC of the Income
Tax Act, 1961 (in short ‘the IT Act’) to prepare and file a true and correct
return of his total income including the undisclosed income in respect of which
he was assessed for the block period 1989-90 to 1999-2000. On the very same
day, a separate notice u/s. 158BC was issued in the name of the said Firm by
the very same Assessing Officer. Pursuant to the same, the Appellant filed his
block return for the aforesaid period on 08.11.1999 declaring his aggregate
undisclosed income at Rs. 14 lakh.

 

Meanwhile, an application was filed
by the Appellant before the Additional Commissioner of Income Tax, Asansol,
praying for his intervention and issue of necessary direction to the Assessing
Officer u/s. 144A of the IT Act. On 14.08.2000, the Additional Commissioner
perused the records and directed the Assessing Officer to take appropriate
steps in order to determine the income of the Assessee. The Additional
Commissioner issued separate directions u/s. 144A of the IT Act in the cases of
Nitya Kali Rice Mill, Kartick Dutta, Shambhu Mondal and Tamal Mondal and the
Draft Assessment Order u/s. 158BC of the IT Act was sent to the Joint
Commissioner of Income Tax, Burdwan, Range-2 for approval which was returned by
the Joint Commissioner on 16.11.2000 stating that no warrant for authorisation
was issued in the names of the persons mentioned in the Draft Assessment Order.

 

On 20.11.2000, Block Assessment
Order was passed by the Deputy Commissioner of Income Tax stating that the
return filed in the case of the Firm should be accepted as ‘Nil’ income and
also directed to initiate proceedings against the Appellant for the assessment
of undisclosed income for the block period u/s. 158BD of the IT Act. Pursuant
to the order dated 20.11.2000, a fresh notice u/s. 158BC read with section
158BD of the IT Act was issued to the Appellant to file the block return for
the period 1989-90 to 1999-2000. Consequently, the Appellant intimated the
Assessing Officer through a letter dated 21.10.2002 that the block return has
already been filed for the aforesaid period on 08.11.1999. Further, the issue
of fresh notice does not extend the time allowed for completion of the
assessment under Chapter XIV of the IT Act.

 

On 29.11.2002, the Assessing
Officer passed the assessment order while assessing the undisclosed income of
the Appellant to the tune of Rs. 3,48,56,430/. Being aggrieved, the Appellant
preferred an appeal before the Commissioner of Income Tax (Appeals). Vide order
dated 18.09.2003, the Commissioner of Income Tax (Appeals) held that the
undisclosed income of the block period in the instant case should be taken in
the aggregate sum of Rs. 66,55,911/- as against Rs. 3,48,56,430/- as assessed
by the Assessing Officer.

 

Being aggrieved, the Appellant
preferred an Appeal before the Tribunal. At the same time, the Revenue also
went in appeal before the Tribunal. The Tribunal, vide order dated 29.04.2005,
dismissed the appeal filed by the Appellant while partly allowing the appeal
filed by the Revenue. Being aggrieved, the Appellant filed an appeal before the
High Court. Vide judgment and order dated 17.11.2005, the Division Bench had
dismissed the appeal filed by the Assessee.

 

Being aggrieved by the judgment and
order dated 17.11.2005, the Appellant has preferred this appeal before the
Supreme Court.

 

According to the Supreme Court, the
only point for consideration before it was whether in the facts and
circumstances of the present case, the issue of second (fresh) notice u/s.
158BD of the IT Act was valid or not?

 

The Supreme Court noted that in the
instant case, it was a matter of dispute that second notice issued on
20.11.2000 was not valid and competent since the first notice issued by the
same Assessing Officer dated 09.09.1999 u/s. 158BC was valid and the assessment
ought to be made in pursuance of that notice and, therefore, the Assessing
Officer had no authority to issue the second notice.

 

The Supreme Court considered the
provisions of section 158BD and observed that a notice u/s. 158BD could be
issued to a person with respect to whom search was not conducted but
undisclosed income was found as belonging to such person from the material
seized from the residence or business premises of the person with respect to
whom search was made u/s. 132.

 

Section 158BD speaks of the
condition that “where the Assessing Officer is satisfied that any
undisclosed income belongs to any person other than the searched person”,
which means that the Assessing Officer must have to be satisfied that any
undisclosed income belongs to any person other than the searched person.

 

According to the Supreme Court, in
the present case, it was not in dispute that the Assessing Officer, who was
assessing the Firm as well as the Appellant, was the same person. In other
words, the same Assessing Officer having jurisdiction over the searched person
could proceed against the present Appellant. Therefore, the present Assessing
Officer had jurisdiction to proceed against the present Appellant to make a
block assessment under Chapter XIV-B of the IT Act, in case the Assessing
Officer was prima facie satisfied that any undisclosed income belonged
to the present Appellant.

 

The Supreme Court held that at the
time when notice u/s. 158BC was issued by the Assessing Officer to Nitya Kali
Rice Mill, it was not necessary for the Assessing Officer to arrive at a
satisfaction that any undisclosed income belongs to Nitya Kali Rice Mill. A
search was conducted against Nitya Kali Rice Mill under section 132 of the Act.
Since the notice u/s. 158BC issued to Nitya Kali Rice Mill and the notice u/s.
158BC issued to the Appellant were on the same day i.e., on 09.09.1999, the
question of coming to a satisfaction that any undisclosed income based on
seized books of accounts or documents or assets belonged to the present
Appellant did or could not arise inasmuch as no reasonable or prudent man can
come to such satisfaction unless the seized books of accounts or documents or
assets are perused, examined and verified.

 

Therefore, the Assessing Officer
was right in arriving at a decision that the notice u/s. 158BC issued to the
present Appellant on 09.09.1999 did not satisfy the requirement of section
158BD of the Act. He, therefore, rightly proceeded to issue fresh notice
(second Notice) u/s. 158BD on 20.11.2000 after recording a satisfaction that
any undisclosed income based on seized books of account or document or assets
or other materials may belong to the Appellant. In fact, in the present case,
the AO had himself come to a conclusion that the notice issued u/s. 158BC on
09.09.1999 to the Assessee was not in conformity with the requirement of
section 158BD of the Act. The Assessing Officer had proceeded u/s. 158BD of the
Act not in pursuance of any direction by the Joint Commissioner but after being
satisfied that the case squarely fell within the ambit of section 158BD of the
Act.

 

The Supreme Court, therefore,
dismissed the appeal concluding that the High Court was right in passing the
judgment and order dated 17.11.2005.

 

19.  Addl. Commissioner of Income Tax vs. Bharat
V. Patel (24.04.2018) (2018) 404 ITR 37 (SC)

 

Perquisite – The Respondent got the Stock Appreciation Rights
(SARs) and, eventually received an amount on account of its redemption prior to
01.04.2000 on which date the amendment of Finance Act, 1999 (27 of 1999) came
into force – In the absence of any express statutory provision regarding the
applicability of such amendment from retrospective effect, the said amount was
not liable to pay tax

 

The Respondent was employed as the
Chairman-cum-Managing Director of the (P&G) India Ltd., at the relevant
time and the said company is the subsidiary of (P&G) USA through Richardson
Vicks Inc. USA and that (P&G) USA owned controlling equity. The Respondent
was working as a salaried employee. The (P&G) USA was the company who had
issued the Stock Appreciation Rights (SARs.) to the Respondent without any
consideration from 1991 to 1996. The said SARs were redeemed on 15.10.1997 and
in lieu of that the Respondent received an amount of Rs. 6,80,40,724/- from
(P&G) USA. However, when the Respondent filed his return for the Assessment
Year:1998-99, he claimed this amount as an exemption from the ambit of Income
Tax.

 

The Tribunal was of the view that
the stock options are capital assets and such assets in the instant case
acquired for consideration, hence, gain arising therefrom is liable to capital
gain tax. However, the stand of the Revenue before the Tribunal was that the
amount in question is taxable as perquisite u/s. 17(2)(iii) of the Act or in
alternatively u/s. 28(iv) of the Act instead of capital gains. The High Court
also upheld the view of the Tribunal but the High Court disagreed that such
capital gains arose to the Respondent on redemption of Stock Appreciation
Rights since there was no cost of acquisition involved from the side of the
Respondent.

 

The Supreme Court, before examining
the case at hand, considered the meaning of the words “Perquisite”
and “Capital Gains”. According to the Supreme Court, the word “Perquisite”
in common parlance may be defined as any perk or benefit attached to an
employee or position besides salary or remuneration. Broadly speaking, these
are usually non-cash benefits given by an employer to an employee in addition
to entitled salary or remuneration. It may be said that these benefits are
generally provided by the employers in order to retain the talented employees
in the organisation. There are various instances of perquisite such as
concessional rent accommodation provided by the employer, any sum paid by an
employer in respect of an obligation which was actually payable by the employee
etc. Section 17(2) of the Act was enacted by the legislature to give the broad
view of term perquisite. On the other hand, the word ‘Capital Gains’ means a
profit from the sale of property or an investment. It may be short term or long
term depending upon the facts and circumstances of each case. This gain or
profit is charged to tax in the year in which transfer of the capital assets
takes place.

 

According to the Supreme Court, in
the instant case, the fundamental question which arose for its consideration
was with regard to the taxability of the amount received by the Respondent on
redemption of Stock Appreciation Rights (SARs.).

 

The Supreme Court noted that,
particularly, in order to bring the perquisite transferred by the employer to
the employees within the ambit of tax, legislature brought an amendment u/s. 17
of the Act by inserting clause (iiia) in section 17(2) of the Act through the
Finance Act, 1999 (27 of 1999) with effect from 01.04.2000, which was later on
omitted by the Finance Act, 2000.

 

According to the Supreme Court, the
intention behind the said amendment brought by the legislature was to bring the
benefits transferred by the employer to the employees as in the instant case,
within the ambit of the Income Tax Act, 1961. It was the first time when the
legislature specified the meaning of the cost for acquiring specific
securities. Only by this amendment, legislature determined what would
constitute the specific securities. By this amendment, legislature clearly
covered the direct or indirect transfer of specified securities from the
employer to the employees during or after the employment. On a perusal of the
said clause, it was evident that the case of the Respondent fell under such
clause. However, since the transaction in the instant case pertained to period
prior to 01.04.2000, hence, such transaction could not be covered under the
said Clause in the absence of an express provision of retrospective effect.

 

The Supreme Court did not find any
force in the argument of the Revenue that the case of the Respondent would fall
under the ambit of section 17(2)(iii) of the Act instead of section 17(2)(iiia)
of the Act. The Supreme Court held that it is a fundamental principle of law
that a receipt under the Act must be made taxable before it can be treated as
income. Courts cannot construe the law in such a way that brings an individual
within the ambit of Income Tax Act to pay tax who otherwise is not liable to
pay. In the absence of any such specific provision, if an individual is
subjected to pay tax, it would amount to the violation of his Constitutional
Right.

 

The Supreme Court observed that on
the point of applicability of clause (iiia) of section 17(2) of the Act, it had
settled the position in Infosys Technologies Ltd. (297 ITR 167).

 

The Supreme Court further held that
the High Court had rightly rejected the stand of the Revenue that the amendment
brought in by section 17(2) of the Act was clarificatory, hence, retrospective
in nature.

 

Further, according to the Supreme
Court Circular No. 710 dated 24.07.1995 prima facie dealt with the cases
where the employer issued shares to the employees at less than the market
price. In the instant case, the Respondent was allotted Stock Appreciation
Rights (SARs.) by the (P&G) USA which was different from the allotment of
shares. Hence, such Circular had no applicability on the instant case.
Moreover, a Circular could not be used to introduce a new tax provision in a
Statute which was otherwise absent.

 

On the alternate contention of the
Revenue that the case of the Respondent would come within the ambit of the
28(iv) of the IT Act, the Supreme Court held that such benefit or perquisite
should have arisen from the business activities or profession whereas in the
instant case there was nothing as such. The applicability of section 28(iv) was
confined only to the case where there was any business or profession related
transaction involved. Hence, the instant case could not be covered u/s. 28(iv)
of the Act for the purpose of tax liability.

 

The Supreme Court summed up by
holding that, the Respondent got the Stock Appreciation Rights (SARs) and,
eventually received an amount on account of its redemption prior to 01.04.2000
on which date the amendment of Finance Act, 1999 (27 of 1999) came into force.
In the absence of any express statutory provision regarding the applicability
of such amendment from retrospective effect, it did not find any force in the
argument of the Revenue that such amendment came into force retrospectively. It
is well established Rule of interpretation that taxing provisions shall be
construed strictly so that no person who is otherwise not liable to pay tax, be
made liable to pay tax.

 

20.  Commissioner of Income Tax vs. Container
Corporation of India Ltd. (2018) 404 ITR 
397 (SC)

 

Infrastructure facility – Inland Container Depots (ICDs) are
Inland Ports and subject to the provisions of the section 80IA and deduction
could be claimed for the income earned out of these Depots

 

Container Corporation of India Ltd.
(CONCOR)-the Respondent herein, a government Company, was engaged in the
business of handling and transportation of containerised cargo and was under
the direct administrative control of Ministry of Railways. Its operating
activities were mainly carried out at its Inland Container Depots (ICDs),
Container Freight Stations (CFSs) and Port Side Container Terminals (PSCTs)
spread all over the country.

 

The Respondent herein filed its
returns of income for the assessment years 2003-04 to 2005-06 claiming
deduction under various heads including deduction u/s. 80-IA of the Act.

 

This issue is with regard to the
deduction claimed u/s. 80-IA on the profits earned from the Inland Container
Depots (ICDs) and on rolling stocks. The claim for deduction on the profits
earned from the ICDs and further the deduction on account of rolling stocks had
been rejected by the Assessing Officer.

 

The Respondent herein, being aggrieved with the aforesaid order,
filed an appeal to the Commissioner of Income Tax (Appeals). Learned CIT
(Appeals), partly allowed the appeal while rejecting the deduction claimed u/s.
80-IA of the Act. Being aggrieved, the Respondent herein further preferred
appeal before the Tribunal. The Tribunal, partly allowed the appeal and held
that the deduction u/s. 80-IA could be claimed with regard to the rolling stocks
of the company but not with regard to the ICDs.



Being aggrieved, the Respondent herein challenged the same before
the High Court. The Division Bench of the High Court, allowed the appeals and
held that the Respondent herein was entitled to claim deduction on the income
earned from the ICDs for the relevant period under consideration u/s. 80-IA of
the IT Act.



Being aggrieved by the judgment and
order of the High Court, the Revenue has preferred this appeal before the
Supreme Court.

 

According to the Supreme Court, the
only point for consideration before it was whether in the facts and
circumstances of the case the Inland Container Depots (ICDs) under the control
of the Respondent, during the relevant period, qualified for deduction u/s.
80-IA(4) of the Act or not.

 

The Supreme Court noted that the
ICDs function for the benefit of exporters and importers located in industrial
centers which are situated at distance from sea ports. The purpose of
introducing them was to promote the export and import in the country as these
depots acts as a facilitator and reduce inconvenience to the person who wishes
to export or import but place of his business is situated in a land locked area
i.e., away from the sea. These depots reduce the inconvenience in import and export
in the sense that it reduces the bottlenecks that are arising out of handling
and customs formalities that are required to be done at the sea ports by
allowing the same to be done at these depots only that are situated near to
them. The term ICDs was inserted in 1983 u/s. 2(12) of the Customs Act, 1962
which defines ‘customs port’ and by the provisions of section 7(1)(aa) of the
Customs Act, 1962 power has been given to the Central Board of Excise and
Custom(CBEC) to notify which place alone to be considered as Inland Container
Depots for the unloading of imported goods and the loading of export goods by
Notification in the official Gazette.

 

With the purpose of boosting
country’s infrastructure and specially the transport infrastructure, the
Finance Act, 1995 which came into effect from 01.04.1996 brought an amendment
to the provisions of section 80-IA of the Act. Section 80-IA of the Act talks
about deduction in respect of profits and gains from industrial undertaking or
enterprises engaged in the infrastructure development etc. The said amendment
for the first time brought a provision under which a percentage of profits
derived from the operation of infrastructure facility was allowed a deduction
while computing the income of the Assessee. A ten years tax concession was
allowed to the enterprises in accordance with the provisions of the section
subject to fulfillment of conditions given therein, which develops, maintains
and operates any new infrastructure facility such as roads, highways,
expressways, bridges, airports, ports and rail system or any other public
facility of similar nature as notified.

 

The said provision gives the power
to the Board to notify certain other enterprises which can avail the benefit of
section 80-IA of the Act, which do not fall within any of the specified
categories but carries out activities of similar nature.

 

Further, Central Board of Direct
Taxes (CBDT), in exercise of its power u/s. 80-IA(12)(ca), vide Notification
dated 01.09.1998 notified ICDs and CFSs as infrastructure facility.

 

In addition to the above, the
Finance Act, 1998, which came into effect on 01.04.1999, made a change in the
definition of ‘Infrastructure facility’ as is relevant to the present case. The
words ‘Inland water ways and inland ports’ were added in the definition of
infrastructure facility. A noticeable change was further
brought by the Finance Act, 2001, which came into effect from 01.04.2002, in
the terms that the power of the Board to extend the benefit of the said
provisions to any infrastructure facility of similar nature by issuing a Notification
was taken away. The new explanation to section 80-IA(4) of the Act was
substituted by the Finance Act, 2001 which defined “infrastructure
facility”.

 

It was contended on behalf of the
Appellant that the High Court erred in relying on the Notification issued by
CBDT to hold that the enterprises holding ICDs are allowed to claim deductions
u/s. 80-IA of the Act. As the said power of the Board was specifically taken
away by the amendment made by Finance Act, 2001, in light of the said
amendment, the Notifications which were issued by the CBDT would cease to
operate after the Assessment Year 2002-03.

 

The Supreme Court held that the
aforesaid argument did not have much force as the said amendment was silent
with regard to any effect it would have upon the Notifications issued earlier
by the Board in due exercise of its power. Had it been the intention of the
legislature that the Notifications issued by the Board earlier were of no
effect after 2002-03, it would have had found a place in the said amendment. In
the absence of the same, the Supreme Court was unable to concur with learned
Senior Counsel that the Notifications which were issued in legitimate exercise
of the power conferred on the Board would cease to have effect after the
Assessment Year 2002-03.

 

It was also contended on behalf of
the Appellant that the High Court committed a grave error in holding ICDs as
Inland Ports. It was further contended that the ICDs were never understood to
fall in the category of ‘Inland Port’ under the scheme of the Act. The argument
in support of this contention was that if the word ‘Inland Port’, as used in
the Explanation attached to section 80-IA(4) of the Act defining
‘infrastructure facility’ included ICDs, there would have been no need for the
CBDT to separately exercise its power given. The Supreme Court held that the
Notification which was issued by the CBDT came into effect on 01.09.1998 i.e.,
the time when the term ‘Inland Port’ was not in itself inserted in the
provisions of Explanation attached to section 80-IA(4) of the Act defining the
term ‘infrastructure facility’. It was inserted through Finance Act, 1998 which
came into effect from 01.04.1999. So there seems to be no conflict within the
Notification issued by the Board and the fact that the ICDs are Inland Ports or
not.

 

The Supreme Court further held that
the Respondent has been held entitled for the benefit of section 80IA of the
Act much before the Finance Act, 2001 which came into force on 01.04.2002 and
exemption for the period of 10 years could not be curtailed or denied by any
subsequent amendment regarding the eligibility conditions under the period is
modified or specific provision is made that the benefit from 01.04.2002 onwards
shall only be claimed by the existing eligible units if they fulfill the new
conditions.

 

The Supreme Court thereafter dealt
with the issue as to whether the ICDs could be termed as Inland Ports so as to
entitle it for deduction u/s. 80-IA of the Act. The Supreme Court observed that
term port, in commercial terms, is a place where vessels are in a habit of
loading and unloading goods. The term ‘Port’ as is used in the Explanation
attached to section 80-IA(4) seems to have maritime connotation perhaps that is
the reason why the word airport is found separately in the Explanation.
Considering the nature of work that is performed at ICDs, they cannot be termed
as Ports. However, taking into consideration the fact that a part of activities
that are carried out at ports such as custom clearance are also carried out at
these ICDs, the claim of the Respondent herein could be considered within the
term ‘Inland port’ as is used in the Explanation.

 

The Supreme Court noted that the
term ‘Inland Port’ has been defined nowhere. But the Notification that has been
issued by the Central Board of Excise & Customs (CBEC) dated 24.04.2007 in
terms holds that considering the nature of work carried out at these ICDs they
can be termed as Inland Ports. Further, the communication dated 25.05.2009
issued on behalf of the Ministry of Commerce and Industry confirming that the
ICDs are Inland Ports, fortified the claim of the Respondent herein. The
Supreme Court held that though both the Notification and communication are not
binding on CBDT to decide whether ICDs can be termed as Inland Ports within the
meaning of section 80-IA of the Act, the Appellant herein was unable to put
forward any reasonable explanation as to why these notifications and
communication should not be relied to hold ICDs as Inland Ports. Unless shown
otherwise, it could not be held that the term ‘Inland Ports’ is used
differently u/s. 80-IA of the Act. All these facts taken together clear the
position beyond any doubt that the ICDs are Inland Ports and subject to the
provisions of the section and deduction could be claimed for the income earned
out of these Depots. However, the actual computation is to be made in
accordance with the different Notifications issued by the Customs department
with regard to different ICDs located at different places.

 

The Supreme Court, in view of
foregoing held that the judgment of the High Court did not call for any
interference and, hence, the appeal was accordingly dismissed.

 

___________________________________________________________________________________________________

 

Corrigendum

 

Namaskaar printed
on Page 5 of August, 2018 Journal was contributed by K C Narang, Chartered
Accountant and not by Mukesh Trivedi, Chartered Accountant. This inadvertent
error is regretted.

From the President

Dear Members,

The month of August, named after
Augustus, the first Roman Emperor is also celebrated as the “Happiness Happens
Month”. Even though it may sound trivial, it does have a very important
purpose. The month reminds us that happiness happens one small moment at a time
and it is our job to recognise those moments when they happen. It reminds us
that sometimes a small action boosts our happiness. It reminds us that
happiness is a personal experience and it is also contagious! So, step back and
reflect, what were your happy moments during the last month? When did you make
someone else happy?

 

Happiness was what a team of 37
volunteers witnessed when they visited the tribal areas of Dharampur as a part
of the social initiative of BCAS Foundation. Members and students were thrilled
to spend two days together with lots of fun during the journey to visit various
social and religious projects coupled with the environmental initiative of tree
plantation.

 

The BCAS Foundation also had the
privilege of jointly hosting the 3rd Narayan Varma Memorial Lecture
Series, where Mr. Vallabh Bhansali spoke on an interesting topic of
“Re-building India”. In a thought-provoking session, he highlighted that the
key stakeholders of this re-building exercise would be the Government, private
enterprise, charities and individuals and that each of these stakeholders
should work in close co-ordination for optimal results. As the Hon’ble Prime
Minister rightly said in his Independence Day Speech, “When 125 crore
countrymen become partners, then each and every citizen joins us in the
progress of the country.”

 

The recent natural disaster in Kerala requires necessarily this
type of co-operative effort. While the immediate work of rescue and relief is
more or less taken care of, experience suggests that rehabilitation is perhaps
something which is frequently neglected. BCAS Foundation is in the process of
identifying a suitable rehabilitation project in the field of education and
would endeavour to create a visible long term impact by direct or assisted
intervention. I request the members to contribute generously to this noble
cause.



Technology was the flavour of the
month at the Society. While delivering an insightful talk on the “Impact of
Technology on the Role of Auditors”, Mr. P. R. Ramesh minced no words while
pointing out that only those CA firms would survive who would accept change and
flow with the flood of technology impacting every aspect of human life. A week
later, the talk on “GSTN Portal – Experiences” by the GSTN CEO Mr. Prakash Kumar,
showcased the benefits of technology in improving data analytics. This was soon
followed by an interactive session with Mr. Purushottam, from TRACES and Mr.
Deepak Wayal from NSDL. A common thread across all the three meetings was that
technology will play a larger disruptive role than ever, especially in the
manner in which the profession conducts its activities.

 

The 22nd International
Tax and Finance Conference, 2018 held at Ahmedabad was a grand success with a
record number of participants. Residential course not only provide the members
with the specialised technical knowledge on the respective domains but also
foster networking amongst the members, presenting further opportunities of
growth, all in a relaxed and luxurious environment. The Seminar and Membership
Development Committee is in the advanced stage of finalisation of the 52nd
Residential Refresher Course and the members can expect the announcement very
soon. Some innovative ideas are being implemented at this RRC and I would urge
the members not to miss this event.

 

There were many more activities at
the Society – a visit to Reliance Industries Limited to understand their
consolidation process, a two day event on “Internal Audit – Let’s start at the
very beginning”, a full day seminar on “Tax audit including new amendments
therein”, lecture meeting on “Proposed GST Returns Formats”. A common thread
across all these events was the huge turnout. In fact, for four of the paid
workshops, we had to close enrolments and turn down last minute requests. I
would earnestly request all the members to enrol early to avoid disappointment.
The Committees curate the best of the programs for our members and early
enrolment helps them in planning the events better.

 

I would be glad to receive any
feedback or suggestions on the functioning of the Society, events and
publications that you would like to witness, or any other matter concerning the
profession. Do write to me at president@bcasonline.org. 

 

 Warm Regards

 

 

 

CA. Sunil
Gabhawalla

President

 

FORTHCOMING
EVENTS

COMMITTEE

EVENT NAME

SPEAKER

DATE

VENUE

NATURE OF EVENT

September, 2018

Human Resource
Development
Committee

Success in CA Exams

CA. Nikunj Shah and
CA. Mudit Yadav

Saturday,
8th September, 2018

 

BCAS Conference Hall,
7, Jolly Bhavan No. 2,
New Marine Lines,
Mumbai- 400020

Student Programme

October, 2018

Indirect Taxation
Committee

Long Duration Course on
Goods and Services Tax

 

Various Speakers

October 5th, 6th,
12th, 13th, 19th, 20th October,
2018 Fridays and
Saturdays)

BCAS Conference Hall,
7, Jolly Bhavan No. 2,
New Marine Lines,
Mumbai- 400020

Course

STUDY CIRCLE

Indirect Taxation
Committee

Intensive Study Group on
GST Batch ll

Only For ISG Members

20th & 21st
July/

24th & 25th
August, / 26th & 27th October/ 16th &
17th
November / 7th
December,  2018

BCAS Conference Hall,
7, Jolly Bhavan No. 2,
New Marine Lines,
Mumbai- 400020

Study Group

From Published Accounts

Accounting and disclosure regarding Ind AS 115 by companies in Real
Estate sector for the quarter ended 30th June 2018

 

Compilers’ Note: Ind AS 115 ‘Revenue from contracts with Customers’ is effective 1st
April 2018 and replaces Ind AS 11 ‘Construction Contracts’ and Ind AS
‘Revenue’. Ind AS 115 follows a 5-step approach for recognition of revenue and
is likely to have a major impact on companies in various sectors on recognition
of revenue and disclosures. Given below are the disclosures in unaudited
results of Q1 2018-19 by companies in the real estate sector where the impact
of Ind AS 115 is likely to be material.

 

Oberoi Realty Ltd

From Notes
to Unaudited Consolidated Financial Results

Ind AS 115 ‘Revenue from Contracts with
Customers’, is a new accounting standard effective from April 1, 2018, which
replaces existing revenue recognition requirements. In accordance with the new
standard, and basis the Company’s contracts with customers, its performance
obligations are satisfied over time. The Company has opted to apply the
modified retrospective approach, and in respect of the contracts not complete
as of April 1, 2018 (being the transition date), has made adjustments to
retained earnings, recognising revenue of Rs 49,324 lakh, only to the extent of
costs incurred, as the relevant projects were in early stages of development.
Consequently, there is no impact on retained earnings as at the transition
date.

 

While recognising revenue, the cost of land
has been allocated in proportion to the construction cost incurred as compared
to the accounting treatment hitherto of recognising revenue in proportion to
the actual cost incurred (including land cost).

 

Consequently, in respect of the quarter
ended June 30, 2018, revenue is lower by Rs 1,12,820 lakh, operating cost is
lower by Rs 95,113 lakh, tax expense is lower by Rs 5,156 lakh and profit after
tax lower by Rs 12,551 lakh. The basic and diluted EPS for the period is Rs.
9.04 per share, instead of Rs 12.71 per share.

 

Under modified retrospective approach, the
comparatives for the previous period figures are not required to be restated
and hence are not comparable.

 

Mahindra
Lifespace Developers Ltd

From Notes
to consolidated Unaudited Financial Results

The consolidated financial results of the
Company have been prepared in accordance with the Indian Accounting Standards
(Ind AS) as prescribed u/s. 133 of the Companies Act, 2013 read with the relevant
rules issued thereunder and the other accounting principles generally accepted
in India.

 

a)  The Ministry of Corporate Affairs vide
notification dated 28th March 2018 has made Ind AS 115 “Revenue
from Contracts with Customers” (Ind AS 115) w.e.f. 1st April, 2018. The
Company has applied the modified retrospective approach as per para C3(b) of
Ind AS 115 to contracts that were not completed as on 1st April 2018
and the cumulative effect of applying this standard is recognised at the date
of initial application i.e. 1st April, 2018 in accordance with para
C7 of Ind AS 115 as an adjustment to the opening balance of Retained Earnings,
only to contracts that were not completed as at 1st April, 2018. The
transitional adjustment of Rs. 13,534 lakh (net of deferred tax) has been
adjusted against opening retained earnings based on the requirements of the Ind
AS 115 pertaining to recognition of revenue based on satisfaction of
performance obligation (at a point in time);

 

b)  Due to the application of Ind AS 115 for the
quarter ended June 30, 2018 Revenue from Operations is higher by Rs. 6,458
lakh, cost of sales is higher by Rs. 4,351 lakh, Profit before Share of Profit
of Joint Ventures is higher by Rs. 2,107 lakh, Share of Profit of Joint
Ventures is higher by Rs.151 lakh, Profit before Tax is higher by Rs. 2,260
lakh, Tax expense is higher by Rs. 593 lakh and Profit after tax is higher by
Rs. 1,666 lakh. The Basic and Diluted EPS for the quarter ended June 30, 2018
is Rs.5.20 per share and Rs.5.19 per share respectively instead of Rs.1.98 per
share.

 

These changes are
due to recognition of revenue based on satisfaction of performance obligation
(at a point in time), as opposed to the previously permitted percentage of
completion method. Accordingly, the comparatives have not been restated and
hence not comparable with previous period figures.

 

Larsen & Toubro Ltd

From Notes
to Standalone Unaudited Financial Results

The Company has aligned its policy of
revenue recognition with Ind AS 115 ‘Revenue from Contracts with
Customers” which is effective from April 1, 2018. Accordingly, revenue in
realty business is recognised on delivery of units to customers as against
recognition based on percentage completion method hitherto in accordance with
the guidance note issued by ICAI.

 

Further, the provision for expected credit
loss on contract assets is made on the same basis as financial assets in
accordance with Ind AS 109. The cumulative effect of initial application of Ind
AS 115 upto March 31, 2018 has been adjusted in opening retained earnings as
permitted by the standard. Similar impact on the financial results for the
quarter ended June 30, 2018 is not material.

 

Prestige Estates Projects Ltd

From Notes
to Consolidated Unaudited Financial Results

Ind AS 115 Revenue from Contracts with
Customers, mandatory for reporting periods beginning on or after April 1, 2018,
replaces existing revenue recognition requirements. The application of Ind AS
115 has impacted the Group’s accounting for recognition of revenue from real
estate projects.

 

The Group has applied the modified
retrospective approach to contracts that were not completed as of April 1, 2013
and has given impact of Ind AS 115 application by debit to retained earnings as
at the said date by Rs.10.119 million (net of tax). Accordingly, the
comparatives have not been restated and hence not comparable with previous
period figures. Due to the application of Ind AS 115 for the period ended June
30, 2018, revenue from operations is lower by Rs. 1,726 million and Net profit
after tax (before non-controlling interests) is higher by Rs 23 million,
vis-à-vis the amounts, if replaced standards were applicable. The basic and
diluted EPS for the period is Rs 3.18 instead of Rs. 3.14 per share.

 

Sobha Ltd

From Notes
to Consolidated Unaudited Financial Results

(5) Ind AS 115 Revenue from contracts with
customers has been notified by Ministry of Corporate Affairs (MCA) on 28 March,
2018 and as effective from accounting period beginning on as after 1 April,
2018, replaces existing revenue recognition standard. The application of Ind AS
115 has impacted the Group’s accounting for recognition of revenue from real
estate residential projects. There has been no significant impact on the
contractual and manufacturing business of the group.

 

The Group has applied the modified
retrospective approach to its real estate residential contracts that were not
completed as of 1 April, 2018 and has given impact of adoption of Ind AS 115 by
debiting retained as act the said date by Rs 
7,570 million (net of tax). 
Accordingly, the comparatives have not been restated and hence the
current period figures are not comparable to the previous period figures. 

 

Due to the application of Ind AS 115 in the
current period, revenue from operations is lower by Rs 2,029 million and net
profit after tax is lower by Rs  171
million, then what it would have been if the replaced standards were
applicable. Similarly, the basic and diluted EPS for the period is Rs  5.55 instead of Rs  7.34 per share.

 

Godrej Properties Ltd

From Notes
to Consolidated Unaudited Financial Results

3. 
Ind AS 115 – Revenue from Contracts with Customers has been notified by
Ministry of Corporate Affairs (MCA) on March 28, 2018 and is effective from
accounting period beginning on or after April 01, 2018.  The Company has applied full retrospective
approach in adopting the new standard (for all the contracts other than
completed contracts) and accordingly restated the previous period numbers as
per point in time (Project Completion Method) of revenue recognition.

 

The following table summarises the impact
(net of taxes) of adopting Ind AS 115 on the Group’s Financial Results:

 

(INR in Crore)

Particulars

Quarter ended 31.03.2018

Quarter ended 30.06.2017

Year

ended 31.03.2018

Total Comprehensive Income as reported

138.93

23.29

232.15

Change on adoption of Ind AS 115 (net of taxes)

(99.23)

75.80

(148.05)

Total Comprehensive Income on adoption of Ind AS 115

39.70

99.09

84.10

 

 

The following table summarises the impact,
net of taxes, of transition to Ind AS 115 on net worth as at
March 31, 2018:

(INR in Crore)

Particulars

As at 31.03.2018

Net Worth (as reported)

Change in the net worth on adoption of Ind AS 115 (net of
taxes)

Net Worth on adoption of Ind AS 115

2,240.29


(744.11)

1,496.18

 

 

DLF Ltd

From Notes
to Consolidated Unaudited Financial Results

6. Ind AS 115 Revenue from Contracts with
Customers, mandatory for reporting periods beginning on or after April 1, 2018,
replaces existing revenue recognition requirements.  The application of Ind AS 115 has impacted the
Group’s accounting for recognition of revenue from real estate projects.

 

The Group along with its partnership firms,
joint ventures and associates have applied the modified retrospective approach
to contracts that were not completed as of April 1, 2018 and has given impact
of Ind AS 115 application by debit to retained earnings as at the said date by
Rs  5,382.82 crore (net of tax)
pertaining to recognition of revenue based on satisfaction of performance
obligations at a point in time. 
Accordingly, the figures for the comparative previous periods have not
been restated and hence the current period figures are not comparable with
previous period figures. Due to the application of Ind AS 115 for the period
ended June 30, 2018, revenue from operations is higher by Rs 188.88 crore and
net profit after tax is higher by Rs 111.34 crore, than what it would have
been, if replaced standards were applicable. Similarly, the basic EPS for the
current period is higher by Rs  0.63 per
share and diluted EPS for the period is higher by Rs  0.51 per share.

 

NBCC (India) Ltd

From Notes
to Consolidated Unaudited Financial Results

The Company has aligned its policy of
revenue recognition with lnd AS 115 “Revenue from Contracts with
Customers” which is effective from April 1, 2018. Consequent upon the
withdrawal of Guidance Note on Accounting for Real Estate Transactions (for
entities to whom lnd AS is applicable), issued in May 2016 in Real Estate
Segment and restructuring of performance obligations in PMC segment, the net
cumulative impact of initial application of lnd AS 115 upto March 31, 2018
aggregating to~ 49886.20 lakh has been appropriated against the retained
earnings as at the initial adoption date, as permitted by the standard. Profit
for the quarter ending June 30, 2018 would have been lower by~ 1940.87 lakh if
the company would have recognised the revenue based upon lnd AS 11 and lnd AS
18. The comparative information is not restated in the financial results.
 

Book Review

Title: Bond to Baba – Successful
Strategies

Author: Ninad Karpe, Chartered Accountant


James Bond, Formula 1 racing, Alexander the Great and Baba Ramdev – what do
these have in common? If I were asked this question two weeks ago, I would
admit that I don’t see anything in common. If, however, I were asked this
question today, I would say ‘Strategy lessons for business’. Bond to Baba is
the latest book on business strategy by Ninad Karpe, who is a Chartered
Accountant and has led Aptech, one of India’s largest education
companies.

 

Before you frown on the subject of ‘business
strategy’ due to its perception as a subject meant exclusively for thinkers,
senior executives and management gurus; Bond to Baba is one book that has
simplified strategy to make sense to a 12 year – old while exploring enough
depth to add value to a seasoned business executive. The book addresses success
stories from films, sports, history and politics; explores the causes of
success in each of these stories, bridges it to what businesses can learn from
them and summarises them into timeless lessons for business.

 

Bond to Baba has been published in 2018 by Popular
Prakashan
, one of India’s leading publication houses, and retails at INR
250. It is also available on Amazon in paperback and Kindle editions. As of
August 2018, this book has been rated 4.5 out of 5 stars by more than 66
reviewers and has swiftly made its way to the list of ‘Memorable business books
of 2018’ by Amazon.

 

The book begins with exploring the James
Bond movies and the factors that have caused the franchise to appeal to
generation after generation. If you think you are a Bond fanatic, think twice!
Ninad has picked up a surgeon’s knife to analyse scenes from Bond movies in
minute detail and linked them to lessons for business. He addresses how the
James Bond brand has been reinvented and represented through the past decades
to keep it updated to evolving expectations of the audience. I am browsing
through Netflix archives as I type this to watch Spectre and Skyfall once again
to experience Ninad’s observations.

 

The book then moves on to explore what
businesses can learn from Formula 1 races. Ninad is a Formula 1 enthusiast for
more that 20 years and amalgamates his depth in the sport as well as business
to produce business lessons. He explains that businesses can learn about
agility, efficiency and exploiting data from Formula 1. “If it takes less than
two seconds for a (pit stop) crew to change four tyres, can we justify a delay
beyond 24 hours in responding to an email?” This is a statement in the book
which is worth pasting on the walls of every office in the world.

 

The book has also elucidated lessons from
history which can be applied even in a contemporary business scenario. The
description of the Battle of Gaugamela, where Alexander’s forces go head to
head with King Darius, was so picturesque that I was transported to that
battlefield in 331 BC and forgot that I was reading a book on business
strategy. In this section, the reader learns that the right strategy, agility
and understanding the opponent can help win the war even with a deficiency in
resources.

 

Ninad has sought inspiration for this book
not just in James Bond, but also in movies like Bahubali and Sairat. In fact,
the lessons that this book presents from these moves are analogous but yet, in
sync. Bahubali can teach businesses to think big, quite literally; while Sairat
can teach businesses to think local. A large vision and local thinking are both
sine-qua-non for any business to flourish in the long run.

 

The book educates the reader about the art
of brand extension by exploring the story of none other than Baba Ramdev. He
maintains that companies must be clear about and enhance their core competency
which is yoga for Baba Ramdev while high quality beverages is the core
competency of Starbucks. This section deliberates on other tools like high
visibility and brand extension that helped Baba Ramdev and his pet company,
Patanjali touch revenues of INR 105,610 million.

 

After business lessons from movies, sports,
food, history, and godmen; perhaps the only gamut remaining untouched was
business lessons from politics. The readers will not be disappointed to find
that the book also dwells on the political stints of Hardik Patel and Arvind
Kejriwal. Ninad explains how Hardik did not evolve his strategy as he gained
more political mileage and hence faded into oblivion not soon after he rose.
Through Arvind Kejriwal’s rapid rise to popularity, he explains the important
and forgotten essence of simplicity. By focussing on something as simple and
relatable as ‘corruption’, Kejriwal could swing the masses in his favour and go
on to become the Chief Minister of Delhi.

 

I enjoyed the classic and contemporary
examples and every section provoked me to think how it is linked to business
lessons and strategy. As a reader, I was also looking forward to the author’s
experience in applying these business lessons in his professional life owing to
his rich experience of running an international company. I am hopeful that the
readers will have the opportunity to read about them in one of his future
books. This book, meanwhile, can be described as a fun to read, informative
document which will leave you thinking long after you have devoured it and
parked it on your shelf.

 

Today, books don’t command the monopoly they
once did for being the only sources of knowledge. They face competition for
attention from videos, audiobooks, podcasts and high quality blogs. Bond to
Baba delivers content in bite sized capsules with the right blend of stories
and analysis. It avoids unnecessary management jargon or excess beating around
the bush. In these aspects, it is one of the easiest to read books I have come
across and the kind of book we need today.
 

 

Allied Laws

26. 
Appellate Tribunal – Bias – Adjudicating authority subsequently became a
Technical Member – Matter remanded for fresh adjudication. [CESTAT]

Sify Technologies Ltd. vs. Commissioner of
C. Ex. and S.T., LTU, Chennai 2018 (12) G.S.T.L. 245 (Mad.)

 

In the present case, there were two grounds
pleaded before the High Court with respect to the authority who has issued the
show cause notice, thereafter became a Technical Member of the CESTAT and he
was also part of the Bench, which passed the Final Order. The bench of the
CESTAT had decided the issue against the appellant. Though likelihood of bias
has not been pleaded before the Tribunal, but a ground has been raised in the
instant appeals. On such ground and without going into the merits of the case,
we are of the view that impugned orders are liable to be set aside and
accordingly, set aside.

 

27. Benami – Joint family property – Benami
Transaction – Section 4 cannot be applicable to the facts of the case. [Benami
transactions (Prohibition) Act, 1988; Section 4]

K.Krishna Palani vs. Santhakumari and
others AIR 2018 (NOC) 154 (MAD.)

 

The question for determination before the
honourable bench was whether the provisions of section 4 of the Benami
transactions (Prohibition) Act, 1988 was attracted to the facts of the case.

 

It was contended that section 4 of the
Benami Act would be attracted since schedule property stood in the name of the
mother i.e. the 2nd defendant (since deceased). Therefore, the
property would be treated as self-acquired property of the 2nd
defendant.

 

It was observed that the properties
belonging to the Joint family were settled in favour of the 2nd
defendant, where it was clearly stated that the properties could not be sold by
herself but only along with the other members of the family including the
settlor. The courts below had clearly held that the father of the appellant had
purchased the property for his wife i.e. the 2nd defendant. From
evidence available on record, the schedule property was held to be joint family
property.

 

It was held by the court that since the
property is a joint family property and the claim only seeks to proclaim the
property as joint family property and not to claim the property to be their own
property, the rigor of section 4 of the Benami Act cannot have any application
to the facts of the case.

 

28. Noise Pollution – Right to Life will
include an atmosphere free from noise pollution. [Constitution of India;
Article 21]

Ajay Marathe and Ors. vs. UOI and Ors.
(01.09.2017 – BOMHC) AIR 2018 (Bombay) 117 (FB)

 

If anyone increases his volume of speech and
that too with the assistance of artificial devices so as to compulsorily expose
unwilling persons to hear a noise raised to unpleasant or obnoxious levels then
the person speaking is violating the right of others to a peaceful, comfortable
and pollution-free life guaranteed by Article 21. The right to live in an
atmosphere free from noise pollution is a part of Article 21.

 

29.  Registration – Memorandum of Understanding –
No immovable property getting transferred – Registration not required.
[Registration Act, 1908; Section 17; Maharashtra Stamp Act, 1958; Section 3,
33]

Yuvraj
Developers and Ors. vs. Gavtya Dhondu Mhatre and Ors. AIR 2018 (NOC) 717 (BPM.)

 

The facts of
the case are that a ‘Memorandum of Understanding’ for agreement to lease was
not registered and, therefore, the bar of section 49 of the Registration Act is
attracted i.e. no effect would be given to the immovable property mentioned in
the unregistered document and, secondly, also on the ground that, in order to
fix the valuation, the document needs to be sent for impounding, u/s. 33 of the
Maharashtra Stamp Act, 1958, for payment of proper stamp-duty.

 

It was held
that documents mentioned under the Maharashtra Stamp Act, 1958 can be
chargeable with the stamp-duty and the said provision refers to the instruments
mentioned in ‘Schedule-1’, which are chargeable under the Act. It is submitted
that, ‘Schedule-1’ does not refer to the ‘Memorandum of Understanding’, which,
ultimately, is leading to the ‘Agreement of Lease’ and hence, according to him,
if the instrument is not chargeable with the stamp-duty, under the provisions
of section 3 of the Maharashtra Stamp Act, 1958, then, in no case, it can be
impounded. As the impounding of the MOU was sought on the basis that, under the
said MOU, the possession was delivered and, therefore, the ‘Explanation’ to
Article 25 was invoked. However, as that analogy cannot be accepted,
considering the provisions of Articles 3 and 36 of the Maharashtra Stamp Act,
1958, the impugned order passed by the Trial Court does not call for any
interference.

 

30. Transfer of
Property – Unregistered gift deed – Substance over form – Valid if compliant
with law. [Transfer of Property Act, 1882; S.122, 123]

Topden Pintso
Bhutia vs. Sonam Plazor Bhutia (17.08.2017 – SIHC) AIR 2018 SIKKIM 1

 

The Plaintiff
and the Defendant are blood brothers, the Defendant being the Plaintiff’s elder
brother. The Plaintiff laid claim to the suit land alleging that his mother had
verbally gifted him the property in the year 1980. His mother passed away in
the year 2008. The Plaintiff claims possession of the suit land since 1980, to
the exclusion of his other siblings. After his mother’s demise, he approached
the Office of the Sub-Divisional Magistrate, Ravangla, South Sikkim, for
mutation of the suit property in his name. This was objected to by the
Defendant, inter alia, on the ground that, vide a document dated
21-12-2001, executed by his Late father, allegedly in the presence of the
Defendant and his brothers, the suit property was in fact gifted to him. It is
this document, that the Defendant seeks to validate on the basis of the
aforesaid Notification which clearly provides that, an unregistered document
may, however, be validated and admitted in Court to prove title or other
matters contained in the document, on payment of penalty up to fifty times the
usual registration fee.

 

The Court held
that the document sought to be validated, being bereft only of registration,
ought in substance, to be compliant of the provisions of section 122 and
section 123 of the Transfer of Property Act, 1882. It further held that it is
not every document that has not been registered which can be validated by the
order of the Court, but only those documents which bear compliance to the legal
provisions.

 

RIGHT TO INFORMATION (r2i)

PART A DECISIONS OF HIGH COURTS

 

  •     Can a Government Order issued by the
    State exist over the provisions of the RTI Act?

A writ petition
was filed by Advocate D.B. Binu, who is an RTI activist and president of a federation
of such activists, impugning an order issued by the Government of Kerala which
ostensibly says that certain types of information cannot be made available to
the public even under the RTI Act.

 

In the High
Court of Kerala at Ernakulam, Mr. Justice Devan Ramachandran while delivering a
judgement on WP(C) No. 11202 of 2019 on 25th June, 2019
stated:

 

‘From this
limited perspective, I must say that I fail to understand how the Government of
Kerala could order that “all documents / information related to Inter-State
matters and documents / information which Government feels privy to and the
disclosure of the same may hamper the interest of the State, shall be exempted
from revealing to the public even on request under RTI Act”, particularly when,
under the Right to Information Act is a well-defined hierarchy of officers,
with the State Information Commission at its head, which is expected to be
autonomous and resistant to any pressure from the Executive. It is disquieting
that the order appears to be an attempt to influence the various Information
Officers and Appellate Authorities under the RTI Act by dictating that they
shall not make available certain types of information, no matter what the
mandate of the RTI Act. This certainly is a very dangerous proposition and it
is incomprehensible how the Government could arrogate to itself the power to
issue such an order, knowing full well that this is gross affront to the
provisions of law, because it must certainly be aware that information sought
for by an applicant under the RTI Act can only be denied under the specific
instances enumerated in sections 8 and 9 of the said Act and in no other.
Whatever be the reason behind issuance of this order and however justified the reason stated therein may be, the incontrovertible
fact is that the Government could not have issued this order to pre-empt grant
of any information, whatever be its nature, since it is up to the individual
Information Officers, Appellate Authorities and the Information Commission to
grant or deny such information, guided by the imperatives of the Act; and the
apparent attempt of the Government to dictate to them, through the impugned
order, can never obtain support
in law.’

 

Further, the
judgement states, ‘I cannot let the order influence or trample the officials
under the RTI Act, while acting under its mandate; and I, consequently, clarify
unequivocally that, notwithstanding the contents of the said order, which I
cannot find to be worthy of favour from this Court, the various Public Information
Officers, Appellate Authorities and the State Information Commission shall only
act implicitly in terms of the RTI Act,
de hors this order, adverting to
the exceptions statutorily provided and nothing more, nothing less.’

 

[WP(C). No.
11202 of 2019, dated 25th June, 2019]

 

PART B RTI ACT, 2005

 

  •     RTI amendment Bill

The existing law
says that the public authorities are required to make disclosures on:

 

(i) their
organisation, functions and structure,

(ii) powers and
duties of its officers and employees,

(iii) financial
information

If such information
is not provided by the public authorities on their own, the citizens have the
right to demand the same from them under the RTI Act. ‘Public authorities’
refers to Ministers and government servants, among others.

 

The Central
Information Commission is headed by a Chief Information Commissioner and ten
Information Commissioners. They are appointed by the President (read Central
Government) who appoints them for a fixed tenure of five years and a salary of the rank of the Chief Election
Commissioner and Election Commissioners, respectively. This was done to give
the Central Information Commission autonomy and protection from government
interference.

 

The gist of the proposed amendment to the RTI is as follows:

(a) The clause
‘five-year fixed term, or up to the age of 65 years, whichever is earlier’ is
removed;

(b) The status, terms and salary of the CIC, which is now equal to that
of Chief Election Commissioner, will be reduced;

(c) It is
contemplated to give powers to the political executive, i.e., to the Central
Government to prescribe the term, salary and status of the commissioners both
at the Centre and in the states;

(d) The Centre will
get power to prescribe the term, status and salary from time to time.

 

At first glance,
the amendments appear benign. They deal with matters pertaining to tenure,
allowances and the terms of service of Information Commissioners. These were
articulated in the Act, which mandates fixed five-year terms and accords
appropriate status to the Commissioners by equating their salaries with those
of the Election Commissioners at the state and Central level. The amendment
removes these provisions and empowers the Centre to take these decisions.

 

Two consequences
follow from this. First, it undermines the status of the Commissioners which,
in the hierarchy of the state, is a necessary condition for staying
independent, issuing orders and, more importantly, monitoring implementation.
This was the logic behind conferring Information Commissioner’s status and
salary equivalent to Election Commissioners (and the Chief Secretary in the
case of states). Importantly, this is a principle routinely adopted for
statutory oversight bodies.

 

Second, it allows
the Centre to meddle with the everyday functioning of the Commission. The
Centre has now appropriated powers to notify the term of office. In other
words, it can get rid of uncomfortable Commissioners with relative ease, thus
making the Information Commissions subservient to it. In undermining their
independence, the amendments threaten the spirit and intent of the RTI Act,
which is to establish norms of transparency and accountability in governance.

 

‘Information is
the currency that every citizen requires to participate in the life and
governance of society’
: Justice A.P. Shah, former
Chief Justice, Delhi and Madras High Courts (2010).

 

The government must
keep in mind that the RTI Act is regarded as one of the most successful laws of
independent India. It has proved to be the strongest and most effective tool
that ordinary citizens possess to hold accountable the powers that be.

 

The RTI Act has
been used time and again to ask a million questions across the spectrum – the
Reserve Bank of India, the Finance Ministry, demonetisation, non-performing
assets, the Rafael fighter aircraft deal, electoral bonds, unemployment
figures, the appointment of the Central Vigilance Commissioner, Election
Commissioners and the (non)-appointment of the Information Commissioners
themselves.

 

It is, therefore, imperative that the government, which runs the world’s
largest democracy, remains sensitive about public sentiment and should do
nothing that can be construed as a move to trample the rights and freedom of
its people.

 

(This
piece has drawn from inputs of various RTI activists and articles of various
experts on the topic)

 

 

PART C  INFORMATION ON & AROUND

 

  •   SFIO in HC against
    CIC order to disclose details of criminal cases against Daewoo Motors

The Delhi High Court has sought response of
the now-defunct Daewoo Motors’ former auditor on a plea by the Serious Fraud
Investigation Office SFIO to set aside a Central Information Commission (CIC)
order directing it to make public details of criminal proceedings against the
company which is facing trial in several cases. Mr. Justice V.K. Rao has issued
notice to the auditor, Vipin Malik, and sought his response on the petition by
the SFIO, which functions under the Ministry of Corporate Affairs (MCA). The
Court listed the matter for further hearing on December 3.

 

(Source:https://economictimes.indiatimes.com/news/politics-and-nation/sfio-in-hc-against-cic-order-to-disclose-details-of-criminal-cases-against-daewoo-motors/articleshow/70721529.cms)

 

  • Respond to
    RTI query seeking to know illegal Bangladeshis in India: CIC to MHA

The CIC has directed the Home Ministry to
respond to a three-year-old RTI application seeking to know the number of
illegal Bangladeshi nationals in India and action taken against agencies which
failed to send them back.

 

An RTI applicant had approached the Home
Ministry asking for information on three points – the number of illegal
Bangladeshis in India, the authority responsible for sending them back and
action taken against the authority for failing in its duty.

 

The matter was referred to the Intelligence
Bureau (IB), which denied the information citing its exemption from the RTI Act
being a national security and intelligence agency.

 

During the hearing at the Commission, the
highest adjudicating body in RTI matters, the Bureau of Immigration, which
works under the IB, said it only monitors and collects statistics pertaining to
those immigrants who overstay.

 

Seeking an unconditional apology, the Bureau
said the matter does not pertain to it and should have been returned to the
Ministry.

 

In view of this, the Commission directed the
respondent to transfer the appellant’s RTI application u/s 6(3) of the RTI Act
to the Central Public Information Officer (CPIO), MHA within a period of two
weeks from the date of receipt of a copy of the order under intimation to the
appellant, Chief Information Commissioner Sudhir Bhargava said.

 

(Source:https://www.business-standard.com/article/pti-stories/respond-to-rti-query-seeking-to-know-illegal-bangladeshis-in-india-cic-to-mha-119070100657_1.html)

 

CIC tells RBI to
give defaulters’ names to RTI applicant

The CIC has directed the RBI to disclose the
list of big loan defaulters it had sent to various banks for resolution.

The CIC’s directive came while deciding on a
plea by an RTI activist, who had based the application on media reports that
RBI Deputy Governor Viral Acharya in a lecture in 2017, had said that the
accounts of some loan defaulters had been sent to banks for resolution.

 

(Source:https://www.deccanchronicle.com/business/economy/280519/cic-tells-rbi-to-give-defaulters-names-to-rti-applicant.html)

 

  • CIC slams
    DoPT for discrediting itself as RTI implementing agency

Despite the
Supreme Court having ordered transparency in the appointments of Information
Commissioners, the Department of Personnel and Training (DoPT), which is also
the implementer of the RTI Act, stonewalled information on this issue, only to
be admonished by the CIC, which has ordered it to provide the details sought
under RTI.

 

CIC Divya Prakash, in his order, observed
that ‘this kind of conduct amounts to stonewalling RTI applications and
stifling the very letter and spirit of the RTI Act. By resorting to such
unwarranted opacity, DoPT is setting a bad example for other public authorities
and at the same time discrediting its own footing as the nodal agency for the
implementation of the RTI Act.’

 

While warning
the DoPT CPIO not to take  RTI
applications so casually, he also observed in his order, ‘It is ironic that the
information that has been denied in the instant case pertained to the
appointment of Information Commissioners under the RTI Act, who are ordained
with the statutory authority of securing the regime of transparency.’

 

(Source:https://www.moneylife.in/article/cic-slams-dopt-for-discrediting-itself-as-rti implementing-agency/57659.html)

GOODS AND SERVICES TAX (GST)

I. AUTHORITY FOR ADVANCE RULING (AAR)

 

40.  [2019] (27) GSTL 54 (A.A.R. – GST) Borbheta
Estate Pvt. Ltd.
Date of order: 27th
June, 2019;

 

Supply of services of renting of dwelling unit for residence purpose
whether given to individuals or to a company would not attract tax

 

FACTS

An applicant was inter
alia
renting dwelling units. One of the flats was let out to M/s Larsen
& Turbo Ltd. in the housing complex named South City. The applicant argued
that he was not liable to pay tax on the renting services as it was for
residential purpose and exempt as per Notification No. 12/2017-C. T(Rate). The
Department stated that the exemption was not available since the residential
dwelling unit is rented to a commercial entity like M/s Larsen & Toubro
Ltd. But from the observation by the Authority it appeared that it was meant
for residential accommodation for the employees of the company and South City
Apartment Owners’ Association also certified that the applicant owns the flat and
it is a residential flat which cannot be used for any purpose other than
residential.

 

HELD

It was held that whether renting of dwelling unit
for residence purpose was given to individuals or to a company, it is covered
under exemption notification and thus supply of such services does not attract
tax.

 

41.  [2019] 106 taxmann.com 292 (AAR –
Maharashtra) Aarel Import-Export (P) Ltd., In re.
Date of order: 24th
April, 2019;

 

The imported goods can be cleared in the name of GST registration
located in different state and even in case of ex-warehouse sale of such
imported goods to customers located in the state where imported goods are
stored; there is no need to obtain separate registration in that state

 

FACTS

The applicant, a company having its head office in
Mumbai, and registered under the GST Act in the state of Maharashtra, is an
importer and exporter / trader of products, etc. The applicant wishes to import
coke from Indonesia at Paradip Port in the state of Odisha. They will be
storing goods at rented customs warehouse (ex-bond) at Paradip Port. They do
not have any place of business / establishment or place of operation in Odisha.
Therefore, they will clear the goods from that warehouse in the name of their Mumbai
office using the Maharashtra GSTIN. The importation will be completed on
payment of custom duties, if any, and IGST in the name of the Mumbai office.

 

The applicant wishes to sell the goods directly
from Paradip Port warehouse (ex-bond) to the customers in Odisha and
accordingly charge IGST to their customers by raising bills from their Mumbai
office and not from Odisha. The applicant does not have any facility in Odisha
other than the Paradip Port customs warehouse. In this background, the applicant
raised a question as to whether they are required to obtain registration in
Odisha and whether they can supply the goods from custom warehouses there by
raising invoices in the name of their Mumbai office.

 

HELD

The AAR found that in respect of goods imported
into India, as per provisions of section 11(a) of the IGST Act, 2017 the place
of supply shall be the location of the importer. In the present case since the
importer is registered in Mumbai, the place of supply will be Mumbai,
Maharashtra. Since the applicant has no establishment or place of operation or
any godown or GSTIN in the state of Odisha, Paradip Port, i.e., the port of
import, the place of supply shall be the place from where the applicant makes a
taxable supply of goods which, in this case is the Mumbai head office.
Accordingly, AAR held that the applicant can clear the goods on the basis of
invoices issued by the Mumbai office and need not take separate registration in
Odisha.

 

As regards the second
question, AAR held that since as an importer the place of supply for the
applicant will be Mumbai, and the goods also will be cleared in the name of the
Mumbai registered address while paying IGST at the time of customs clearance,
it would follow that they can do further transactions mentioning the GSTIN of
their Mumbai office. As a corollary, they can do the transaction on the Mumbai
office GSTIN and can mention that GSTIN in the E-way Bill and the dispatch
place as the customs warehouse, Odisha, Paradip Port. AAR also relied upon its
own decision in the case of Sonkamal Enterprises (P) Ltd. in re
(2018) 100 taxmann.com 213 (AAR-Maharashtra)
in this matter.  

 

Service Tax

I. SUPREME COURT

 

36.  [2019] 106 taxmann.com 217 (SC) Steel
Authority of India Ltd. vs. Commissioner of Central Excise, Raipur
Date of order: 8th
May, 2019;

           

In case of retrospective escalation in prices of goods sold, for calculation
of interest on excise duty on price differential, the date of removal of goods
shall be considered and not the date of price revision

 

FACTS

The appellant sold and cleared the goods to its client and paid excise
duty on the price charged. Subsequently, the price of the goods was enhanced
retrospectively. The appellant discharged excise duty on the price differential
arising on account of the revision in price. Revenue demanded interest from
appellant u/s 11AB of the Central Excise Act, 1994, contending that the
appellant was liable to pay interest based on the date of removal of such goods
and not from the date of the price revision. The Tribunal rejected the appeal
filed by the appellant relying upon the judgement of the Supreme Court in CCE
vs. SKF India Ltd. [2009] 21 STT 499.

 

While deciding the appeal filed by the appellant against the order of
the Tribunal, a bench of two judges of the Supreme Court doubted the
correctness of the decision in the case of SKF India Ltd. (Supra) and
also in the case of CCE vs. International Auto Ltd. [2010] 24 STT 586
(SC)
and referred the matter to a bench of three judges. Accordingly,
in the present appeals, the three-judge bench was required to decide that when
price is revised upward with retrospective effect and the excise duty on the
same is paid immediately on a future date, for the purposes of computation of
interest u/s 11AB, which is the month in which the duty ought to have been
paid?

HELD

The Supreme Court opined that where there is an escalation clause, goods
are cleared on a provisional price. Consequently, the value is provisional. If
there is a subsequent escalation with retrospective effect, it will affect the
valuation which was employed in the self-assessment by the assessee which would
necessarily be provisional. Enhancement of the value will date back to the date
of removal in view of the retrospective operation.

 

The Court did not agree with the reasoning of the bench of two judges
which held that for the purpose of section 11AB, the expression ‘ought to have
been paid’ would mean the time when the price was agreed upon by the seller. It
held that interpreting the words in the manner contemplated by the bench would
result in doing violence to the provisions of the Act and the Rules because
when an assessee in similar circumstances resorts to provisional assessment
upon a final determination of the value consequently, the duty and interest
dates back to the month ‘for which’ the duty is determined. Duty and interest
is not paid with reference to the month in which the final assessment is made.

 

Though the differential duty becomes crystallised only after the
escalation is finalised under the escalation clause, but it is not a case where
escalation is to have only prospective operation but admittedly retrospective
operation. In other words, the value of the goods which was only admittedly
provisional at the time of clearing the goods is finally determined and it is
on the said differential value that differential duty is paid. The Supreme Court
held that while the principle that the value of the goods at the time of
removal is to reign supreme, in a case where the price is provisional and
subject to variation and when it is varied retrospectively it will be the price
even at the time of removal. The fact that it is known later cannot detract
from the fact that the later-discovered price would not be value at the time of
removal. The three-judge bench also concurred with the views expressed in SKF
India Ltd. (Supra)
and International Auto Ltd. (Supra).
Consequently, the present appeal filed by the appellant was dismissed.

 

II. HIGH COURT

 

37.  [2019] (27) GSTL 12 (Mad.) Hitachi Power
Europe GMBH vs. C.B.I. & C.
Date of order: 2nd
April, 2019;

 

Pre-show cause notice consultation with Principal Commissioners or
Commissioners is made mandatory in nature involving demand of duty above Rs. 50
lakhs as per the C.B.I. & C. Circular and recommendation of Tax
Administration Reforms Commission (TARC)

 

FACTS

An intimation for conduct of service tax audit was issued by the audit
department on the petitioner in 2015. In 2016, another notice was issued by
senior audit officer / CERA authority – V about the proposed CERA audit and for
keeping ready the documents for smooth audit. Audit was conducted and no
specific query was raised or explanation called for. Later, in 2016, a letter
was issued by Assistant Commissioner of Service Tax making reference of the
audit slips issued by CERA and the assessee was called upon to deposit the service
tax due as per the audit slips. The petitioner offered an explanation and
sought an opportunity of personal hearing prior to finalisation of proceedings.
Later, another notice was issued calling for various documentary evidence in
support of contentions in the explanation offered. A detailed reply was filed
along with a request to drop the proposals raised by audit. The request for
personal hearing was reiterated. The above events culminated with impugned show
cause notice with a reference to CERA audit. There was, however, no reference
to the replies filed or the details furnished in the course of the audit.

 

A writ petition was filed by the petitioner that he had not got an
opportunity of personal hearing prior to finalisation of proceedings against him
and eventually a show cause notice was issued against him which ultimately
triggered the commencement of adversarial proceedings between the petitioner
and the department. The circular of C.B.I & C. and recommendation of TARC
states that there should be pre-show cause notice consultation between the
petitioner and the officer prior to the stage of issuance of show cause notice.

HELD

The Hon’ble High Court held that the impugned show cause notice has been
issued to the petitioner without the process of pre-show cause notice
consultation and directed the officer to call upon the petitioner with all
relevant details and afford him full opportunity of pre-show cause notice
consultation, prior to issuance of the show cause notice.

 

38.  [2019] (25) GSTL 534 (Del.) Vaani Kapoor vs.
Commissioner of Service Tax
Date of order: 10th
September, 2018;

 

Consideration paid by flat buyers to a builder for acquisition of the
flats is not subject to service tax

 

FACTS

The petitioner was the owner of the residential flat constructed by the
builder. Service tax amount on the residential flat under construction was
collected from the petitioner by the builder. Subsequently, a writ petition was
filed challenging such levy on the construction of residential flats as
unconstitutional vide the judgment of Suresh Kumar Bansal & Ors. vs.
UOI & Ors. (2016) 287 CTR (Del) 1
wherein, the levy of service tax
on residential flat u/s 65(105) (zzzh) of the Finance Act, 1994 – as well as
explanation to section 65(105) (zzzzu) was held ultra vires and
unconstitutional and the amount collected towards service tax was directed to
be refunded.

 

HELD

The High Court, referring to the judgement of Suresh Kumar Bansal
& Ors. (Supra)
, held that identical relief shall be granted to the
petitioners. The respondents were directed to undertake the requisite
procedures for the remittance of the refund amount to the petitioner and to
issue required notices to the builder and to the petitioner to facilitate the
process, thereby allowing the writ petition.

           

 

III. TRIBUNAL

 

39.  [2019] 106 taxmann.com 148 (Bang. – CESTAT)
AMD India (P) Ltd. vs. Commissioner of Service Tax, Bangalore
Date of order: 20th
November, 2017;

 

Tribunal held that activity
of providing sales and marketing support in India to entities located outside
India cannot be said to be covered under purview of ‘intermediary services’


FACTS

The appellant, a 100%
software export-oriented unit, provided business auxiliary services to its
holding company located outside India, i.e., sales and marketing support
services which involved activities including meeting with original equipment
manufacturers, providing training on products, holding events or trade shows,
etc. The appellant’s claim of refund for unutilised CENVAT credit, in terms of
Rule 5 of CENVAT Credit Rules, 2004 was rejected by the Revenue on the ground
that the services provided by appellant are in the nature of ‘intermediary
services’ under Rule 9 of Place of Provision of Services Rules, 2012 and, thus,
cannot be said to be ‘export of services’ under Rule 6A of Service Tax Rules,
1994.

 

HELD

The Tribunal noted that the terms of Master Service Agreement with its
holding company does not provide that the appellant will facilitate or will
arrange the purchase and sale on behalf of entities outside India. Further, it
was noted that the appellant’s potential customers for the products of the
foreign company are located abroad. Though the services are provided with
respect to the buyer in India, the benefit of the same accrued to the service
recipient located abroad.

 

The Tribunal relied on its decision in Lenovo India (P) Ltd. vs.
CCE [2009] 21 STT 134 (Bang. – CESTAT)
holding that promoting sale of
goods of foreign clients in India being BAS fulfils the conditions under Export
of Service Rules, 2005 and qualifies as export of service. Further, in KSH
International (P) Ltd. vs. CCE [2010] 25 STT 307 (Mum.)
, it was held that
the phrase ‘used outside India’ is to be interpreted to mean that the benefit
of the service should accrue outside India; thus, it is possible that export of
service may take place even when all the relevant activities take place in
India so long as the benefits of these services accrue outside India.
Accordingly, in this case the Tribunal held that the appellant cannot be said
to be providing ‘intermediary services’ and allowed the present appeals with
consequential reliefs.

 

Note: Similarly, in [2019]
106 taxmann.com 213 (Bang. – CESTAT) Commissioner of Central Excise &
Service Tax, Bangalore-V vs. Analog Devices India (P.) Ltd. [13-11-2017]
,
it was held that when an Indian entity provided consulting engineering service
and business auxiliary service to the holding company located outside India and
it located potential customers for products of the foreign company located
abroad, such services cannot be said to be in the nature of ‘intermediary
services’. However, in Excel Point Systems India (P) Ltd. vs. CST [2019]
106 taxmann.com 174 (Bang. – CESTAT) [28-09-2017]
, where the assessee
had entered into a Buying Services Agreement with its parent company located in
Singapore to render marketing support services, which included data collection
and statistical and business analysis in relation to the company’s products /
customer market and sending across data / reports to the company, etc., and
technical support services, which included advisory support provided to
customers with regard to the project design based on directions from the
company, the Bangalore Tribunal held that such services rendered by the
assessee would fall within the definition of intermediary services.

 

40.  [2019] 106 taxmann.com 74 (Chandi. – CESTAT)
Evalueserve.Com (P) Ltd. vs. Commissioner of Service Tax, Gurgaon
Date of order: 7th
February, 2018;

 

Where assessee provided various services to the customers of the client
(i.e. service recipient), on direction of service recipient located outside
India, Tribunal held that such services cannot be said to be ‘intermediary
services’

 

FACTS

The appellant entered into an agreement with a client, a foreign entity
located outside India, wherein the appellant was required to provide the
services to the customers of the client in accordance with the requirements as
specified by the client. The appellant would directly interact with the
customers of the client, as and when required, and hence would provide the
services to such customers on behalf of the client in close coordination with
the client’s team. The final reports were directly provided by the appellant to
the customers of the clients.

 

Accordingly, for the services provided by the appellant on behalf of the
client in relation to inter alia, business research (including financial
services), market research and intellectual property activities, the appellant
received the margin every month from its client in convertible foreign
exchange. Revenue alleged that the activities of the appellant would get
covered within the scope of ‘intermediary services’ under Rule 2(f) of Place of
Provision of Services (POPS) Rules, 2012 and, hence, cannot be said to be
export of services under Rule 6A of ST Rules, 1994.

 

HELD

The Tribunal noted that the lower authority committed an error in
holding that the appellant provided services on behalf of the foreign client,
whereas the appellants are themselves engaged in providing services to their
client on their own account. In fact, the appellant has provided the services
to customers of their client and having no direct nexus with the customers of
their client and nowhere has facilitated or arranged for the services provided
to their client by a third party. Furthermore, the appellant have themselves
provided the services to their client as the main service provider on
principal-to-principal basis; therefore, the activity undertaken by the
appellant does not qualify as intermediary as defined in Rule 2(f) of Place of
Provision of Services Rules, 2012.

 

The Tribunal also referred to the view taken by the Advance Rulings
Authority of India in the case of Universal Services India (P) Ltd. vs.
CST [Ruling No. AAR/ST/07/2016, dated 4-3-2016]
and Godaddy India
Web Services (P) Ltd.
In re [2016] 67 taxmann.com 324/64 GST 681 (AAR –
New Delhi)
. Accordingly, the Tribunal held that the appellant cannot be
said to be a provider of ‘intermediary services’ and, thus, not liable to pay
service tax under Rule 9 of POPS Rules, 2012.

 

41.  [2019] (25) GSTL 460 (Tri. – Ahmd.)
Commissioner of Service Tax, Ahmedabad vs. Om Air Travels Pvt. Ltd.
Date of order: 2nd
April, 2019;

 

Discount received from main IATA agent by the appellant as a sub-agent
is not taxable

 

FACTS

The appellant was a sub-agent, purchasing tickets at a discounted price
from the main IATA agent and later selling these at a higher price to
customers. The Department was of the view that the discount received from the
main IATA agent as a sub-agent was liable to be taxed under Business Auxiliary Service.
Relying on the decision in the case of CCE Goa vs. Zuari Travel
Corporation vide order dated 18th July, 2013
, the appellant
submitted that the services are classifiable as an air travel agent service and that the commission received from the main IATA agent and selling
the tickets to customers is not taxable.

 

HELD

The Tribunal held that purchasing tickets at lower price, i.e.,
discounted price and selling at a higher price is a trading activity and the
difference is a trade margin during the process of sale and purchase of the
tickets, and hence the trade margin is not taxable. The impugned order is
upheld and Revenue’s appeal is dismissed.

 

42.  [2019] (25) GSTL 59 (Tri. – All.) Logix Infrastructure
Pvt. Ltd. vs. Commissioner of Central Excise & Service Tax, Noida
Date of order: 29th
September, 2018;

 

Entire consideration on residential complex service including components
such as preference location charges, external and internal development charges,
legal specification, etc. are eligible for abatement under Notification No.
26/2012-ST

 

FACTS

An appeal was filed by a service provider giving
residential complex services stating that with effect from 1st July,
2012 there does not exist the concept of individual service in the statute as
per the introduction of section 66F. The section provides that when there are
various elements of services then they are to be bundled together and shall be
treated as a single service. Thus, the assessee can claim an abatement of 75 %
on tax rate of 12.36 % as per Notification No. 26/2012-ST for the service
provided by them to recipients in the form of preference location charges,
external and internal development charges, legal specification, etc., as such
services do not have independent existence but are associated with the
provision of residential complex service; thus they cannot be vivisected and
cannot be treated as separate and charged at a different rate. But the C.B.E.
& C. were of the view that such services should be treated as independent
service and should be subject to different rate of tax, i.e., benefit of
abatement should not be granted on preferential service.

 

HELD

The Tribunal held that section 66F will prevail over any clarification or
view taken by C.B.E. & C.; therefore the components such as preferred
location charges, external development charges, etc., are part and parcel of
various elements of the main service, which is residential complex service, and
therefore the entire consideration received by the appellants is eligible for
abatement.

 

43.  [2019] (25) GSTL 573 (Tri. – Chan.) Hitachi
Metals (I) Pvt. Ltd. vs. Commissioner of C. Ex. & ST (Gurgaon-1)
Date of order: 3rd
April, 2019;

 

Claiming refund of service tax beyond the period of one year from the
date of payment

FACTS

The appellant entered into an agreement with M/s Hitachi Metals (India)
Pvt. Ltd. having its office in Japan and similar agreements with outside
clients for promotion of products by way of customer’s identification and
contact and to co-operate with and represent MET in promotional efforts. The
appellant, due to lack of clarity, had paid service tax for the period April,
2006 to February, 2008 for the services provided to the foreign-based service
recipient receiving payment in convertible foreign exchange. As per C.B.E.
& C. Circular No. 111/05/2009-ST dated 24th February, 2009, it
had been clarified that services of Indian agents who carry out marketing in
India for foreign sellers would be treated as exports and no service tax was
required to be paid.

 

On the basis of this, the appellant filed a refund
claim on 12th January, 2010. However, the refund was rejected on the
grounds that it was filed beyond the period of limitation mentioned in section
11B of Central Excise Act, 1944. As per this section, the refund claim shall be
filed within a period of one year from the date of payment. As the appellant
filed the refund claim beyond that period, it was rejected.

 

HELD

The Tribunal allowed the appeal relying upon the decision in the case of
National Institute of Public Finance & Policy vs. Commissioner of
Service Tax 2019 (20) G.S.T.L. 330 Delhi.
In that case, the assessee
paid service tax under the wrong impression that it was liable to pay service
tax. Subsequently, it was informed by C.B.E.C. on 13th April, 2009
that its activities were not taxable. While processing the refund application,
the refund of certain amounts was denied on the ground that the application was
filed after a lapse of one year.

 

Revenue relied upon Collector of C.E., Kanpur vs. Krishna Carbon
Paper Co., 1988 (37) E.L.T. 480 (S.C.)
and submitted that refund claim
before a departmental authority is to be made within the four corners of the
statute and the period of limitation prescribed in the Central Excise Act and
the Rules framed under it.

 

The Hon’ble Court, however, distinguished the said judgement stating
that Krishna Carbon Paper Co. (Supra) was a case where principal
duty was payable; excess amount had been paid on a mistaken notion with respect
to the liability for excess production under a notification which was later
discovered to be not correct. In the present case, the levy never applied – a
fact conceded by no less than the authority of C.B.E.C. In these circumstances,
the general principle alluded to in Krishna Carbon Paper
Co. (Supra)
would apply. Accordingly, the appeal was allowed.

 

MISCELLANEA

1. Technology

 

25.  Apple contractors ‘regularly
hear confidential details’ on Siri recordings

 

Apple contractors regularly hear confidential medical information, drug
deals and recordings of couples having conversations as part of their job
providing quality control, or ‘grading’, to the company’s Siri voice assistant.

 

Although Apple does not explicitly disclose it in its consumer-facing
privacy documentation, a small proportion of Siri recordings are passed on to
contractors working for the company around the world. They are tasked with
grading the responses on a variety of factors, including whether the activation
of the voice assistant was deliberate or accidental, whether the query was
something Siri could be expected to help with and whether Siri’s response was
appropriate.

 

Apple says the data ‘is used to help Siri and dictation… understand you
better and recognise what you say’. But the company does not explicitly state
that that work is undertaken by humans who listen to the ‘pseudonymoused’
recordings.

 

Apple told the Guardian: ‘A small portion of Siri requests are
analysed to improve Siri and dictation. User requests are not associated with
the user’s Apple ID. Siri responses are analysed in secure facilities and all
reviewers are under the obligation to adhere to Apple’s strict confidentiality
requirements.’ The company added that a very small random subset, less than 1%
of daily Siri activations, are used for grading and those used are typically
only a few seconds long.

 

A whistleblower working for the firm, who asked to remain anonymous due
to fears over his job, expressed concern about this lack of disclosure,
particularly given the frequency with which accidental activations pick up extremely
sensitive personal information.

 

The whistleblower said: ‘There have been countless instances of
recordings featuring private discussions between doctors and patients, business
deals, seemingly criminal dealings, sexual encounters and so on. These recordings
are accompanied by user data showing location, contact details and app data.’

 

Apple is not alone in employing human oversight of its automatic voice
assistants. In April, Amazon was revealed to employ staff to listen to some
Alexa recordings and earlier this month Google workers were found to be doing
the same with Google Assistant.

 

(Source: www.theguardian.com)

 

26.  I found your data. It’s for
sale

 

I’ve watched you check in for a flight and seen your doctor refilling a
prescription.

 

I’ve peeked inside corporate networks at reports on faulty rockets. If I
wanted, I could’ve even opened a tax return you only shared with your
accountant.

 

I found your data because it’s for sale online. Even more terrifying:
It’s happening because of software you probably installed yourself.

 

My latest investigation into the secret life of our data is not a fire
drill. Working with an independent security researcher, I found as many as four
million people have been leaking personal and corporate secrets through Chrome
and Firefox. Even a colleague in The Washington Post’s newsroom got
caught up. When we told browser makers Google and Mozilla, they shut these
leaks immediately – but we probably identified only a fraction of the problem.

 

The root of this privacy train wreck is browser extensions. Also known
as add-ons and plug-ins, they’re little programmes used by nearly half of all
desktop web surfers to make browsing better, such as finding coupons or
remembering passwords. People install them assuming that any software offered
in a store run by Chrome or Firefox has got to be legitimate.

 

Not. At. All. Some extensions have a side hustle in spying. From a
privileged perch in your browser, they pass information about where you surf
and what you view into a murky data economy. Think about everything you do in
your browser at work and home – it’s a digital proxy for your brain. Now
imagine those clicks beaming out of your computer to be harvested for
marketers, data brokers or hackers.

 

Some extensions make surveillance sound like a sweet deal: Amazon was
offering people $10 to install its Assistant extension. In the fine print,
Amazon said the extension collects your browsing history and what’s on the
pages you view, though all that data stays inside the giant company. (Amazon
CEO Jeff Bezos owns The Washington Post.) Academic researchers say there
are thousands of extensions that gather browsing data – many with loose or
downright deceptive data practices – lurking in the online stores of Google and
even the more privacy-friendly Mozilla.

 

The extensions we found selling your data show just how dangerous
browser surveillance can be. What’s unusual about this leak is that we got to
watch it taking place. Large swathes of the tech industry treat tracking as an
acceptable way to make money, whether (or not) most of us realise what’s really
going on. Amazon will give you a $10 coupon for it. Google tracks your searches
and even your activity in Chrome to build out a lucrative dossier on you. Facebook
does the same with your activity in its apps and off.

 

Of course, those companies don’t usually leave your personal information
hanging out on the open internet for sale. But just because it’s hidden doesn’t
make it any less scary.

 

(Source: www.washingtonpost.com)

 

27.  UPI is world class and it’s
time to take it international

 

Cryptocurrencies are peer-to-peer electronic cash systems that are
governed not by the authority of a central bank but by digital code.
Transactions are only added to the common distributed ledger if they can be
validated in accordance with the rules stipulated by the code, ensuring that
digital currency once spent cannot be re-spent. For everyone who uses the same
blockchain, its distributed ledger becomes a common source of truth that allows
them to carry out peer-to-peer transactions without the need for validation by
a central entity.

 

Bitcoin is one such cryptocurrency. It uses a decentralised,
permissionless system that allows anyone to validate a transaction, so long as
they meet the technical requirements for operating a node. However, Bitcoin
prioritises decentralisation over speed and scalability. As a result, it is
incapable of processing transactions at the velocity or volume that modern
financial systems demand. As there is a finite limit to the total number of
Bitcoins that will ever be minted, its value fluctuates wildly, resulting in
the sort of volatility that is undesirable in a currency.

 

Facebook recently announced the launch of a new cryptocurrency called
Libra which, it claims, will address the many failings of Bitcoin. Libra has
been designed to operate on a bespoke blockchain running on at least 29 nodes
and backed by a basket of bank deposits and government securities to ensure low
volatility. For the foreseeable future, Libra will function as a permissioned
cryptocurrency to achieve the high transaction throughput and low latency
functionality expected of a global
payment system.

 

Libra will be most useful for underdeveloped countries that lack a
digital financial infrastructure. It will offer them a safe and cost-effective
mechanism for making payments that will scale effortlessly in places where the
use of Facebook and WhatsApp is already widespread. When combined with social
media data, it will allow developers to come up with innovative new products
that incumbent financial sector players will be hard-pressed to match. As the
value of a Libra today is designed to always be close to its value tomorrow and
in the future, it will operate as a currency hedge in countries where exchange
fluctuations are high.

 

I read the Libra White Paper with interest, keen to understand how this
new cryptocurrency would change things for us in India. We are Facebook’s
second largest market outside the US and any financial product it launches is
bound to have an impact on us. However, the more I read, the less convinced I
was that Libra was going to give India anything that it did not already have.

 

In Unified Payments Interface (UPI), India has a robust digital payments
infrastructure that, within just three years of its launch, already
effortlessly processes more than 750 million transactions a month. We have a
network of business correspondents throughout the country who integrate our
online and offline payment systems by converting digital payments into cash and
vice versa. While we may not yet have the data advantage that Libra promises to
bring, once the Data Empowerment and Protection Architecture is fully
implemented, it will give us an entirely new way to build financial products
using its digital consent infrastructure. Admittedly, UPI isn’t decentralised,
but given how difficult it is going to be to migrate away from a permissioned
architecture, it’s not as if Libra really offers much better.

 

That said, there is at least one thing Libra has going for it that UPI
does not – the ability to radically transform how cross-border transfers are
effected. India receives more inward remittances from its diaspora than any
other country in the world ($79 billion in 2018). At present, all the
mechanisms for international transfer of funds are costly, cumbersome and
highly inefficient. A digital currency like Libra, pegged as it is to a basket
of stable currencies, and transferable anywhere in the world, will offer overseas
Indians a cheap, digital way to move money to relatives back home at a fraction
of the cost that they currently spend.

 

In its report on deepening digital payments, the Nandan Nilekani
Committee has recommended that it is time to take UPI global. Several different
options have been proposed, including amending UPI protocols to include
currency conversion support and directly connecting UPI to global payments
systems to allow immediate, low-cost remittances to take place over the UPI
system. There was also a suggestion that UPI specifications and technologies
should be licensed to operators around the world to allow the protocol to
spread outside India. This must be accompanied by amendments in Indian
regulations, so that Indians can use UPI from abroad in much the same way as
Chinese citizens use WeChat from wherever they are in the world.

 

Cryptocurrency-based payment systems are slow and computationally
intensive. While the technology can be optimised, we will keep running up against
its inherent limitations that make it hard to scale to population size. UPI may
not be decentralised, but we know it works well at scale even over the
sometimes patchy mobile networks in India.

 

There is no need to optimise blockchain technologies to meet the needs
of developing markets when we already have a proven, world-class digital
payments protocol in India that can easily be internationalised. Let’s back
ourselves and just do it.

 

(Source: www.livemint.com)

 

2. Health

 

28.  ‘My Guru told me that as long
as I have good health, I should continue to serve society’, says Metro Man
Sreedharan

 

E. Sreedharan, who is revered as the ‘Metro Man’ of India, shared that
his Guru, Poojya Shri Swami BhoomanandaTirthaji, told him that as long as he
has good health he should continue to serve the society with the attitude that
it is an offering to God.

 

A recipient of the prestigious Padma Vibhushan in 2008,
Sreedharan also said, ‘When the assignment is for the good of society, I don’t
pull back. It is job satisfaction which excites me.’

 

Answering what keeps him going at 88, he said, ‘I
was very religious in my early years – shaped by my parents that way. And I
moved to spirituality particularly after the association with my guru. I like austerity
and simplicity.’ His habit of waking up and sleeping on time and a disciplined
life kept him fit. ‘I am fastidious about exercise, be it in the open air or
regular yoga. I was a sportsman in my young days, was captain of the college
football team. This addiction to regular exercise has remained with me,’ he
said.

 

At present Sreedharan is directly in charge of the Kochi Metro, while he
is also serving the Jammu and Kashmir government for light metro projects to be
implemented in Jammu and Srinagar cities.

 

He is also serving as a consultant to the Uttar Pradesh government for
the Lucknow, Kanpur and Meerut metro projects. Though he had tendered his
resignation from the post last month because of time constraints, it was not
accepted by the State Government led by Chief Minister Yogi Adityanath.

 

(Source: www.swarajyamag.com)

 

29.  Passive use of social media
may increase depression

 

Great holiday, fantastic party and incredible food, everyone shows their
life in the best light on social networking apps like Facebook and Twitter, but
researchers have found that people who use these apps passively are in danger
of developing depressive symptoms.

 

‘Being confronted by social information on the Internet – which is
selective and only positive and favourable – leads to lower self-esteem,’ says
study lead author Phillip Ozimek from the Ruhr University Bochum.

 

As low self-esteem is closely related to depressive symptoms,
researchers consider this short-term effect to be a potential source of danger.

 

For the study, published in the journal Behaviour and Information
Technology
, the researchers interviewed over 800 people about their use of
Facebook, their tendency to compare themselves with others, their level of
self-esteem and the occurrence of depressive symptoms.

 

They found a positive correlation between passive Facebook use – not
posting pictures – and depressive symptoms when subjects have an increased need
to make social comparisons of their abilities.

 

‘So, when I have a strong need to compare and keep seeing in my News
Feed that other people are having great holidays, making great deals and buying
great, expensive things while everything I see out of my office window is grey
and overcast, it lowers my self-esteem,’ Ozimek said.

 

(Source:
www.gadgetsnow.com)

 

STATISTICALLY SPEAKING

1. The average cost of 1GB of mobile data in 2019

 

Country

Average Cost

India

$0.2

Russia

$0.9

Malaysia

$1.1

Pakistan

$1.8

Nigeria

$2.2

Brazil

$3.5

Spain

$3.7

UK

$6.6

Germany

$6.9

China

$9.8

Canada

$12

US

$12.3

South Korea

$15.1

Switzerland

$20.2

 

Source: cable.co.uk

 

2. Four-fold surge in online payments in rural and semi-urban India

 

Particulars

2014

2015

2016

2017

2018

Transactions*

4.57

10.10

13.72

17.37

17.38

Value**

1,558.1

3,717.3

7,120.6

23,795.5

28,243.2

Electricity Bills

Transactions*

0.24

0.32

0.49

0.56

1.00

Value**

108.7

138.7

239.5

308.4

1,198.4

Insurance Premiums

Transactions*

0.02

0.04

0.08

0.11

0.17

Value**

2.1

9.1

23.9

48.7

77.3

 

*Crore; **Rs. In crores

 

Source: Common services
centres data

 

3. Market size of the music industry across India (in billion rupees)

 

Source: Statista 2019

 

 

4. Retail inflation eases marginally

 

Source: Economic Times

5.  Electricity Consumption
(in kWh per capita)

 

Source: The Spectator Index

 

6. GST Returns filing summary for financial year 2019-20

Source:
www.gstcouncil.gov.in

 

 

7. Only 15% of taxpayers have filed GST returns (as of 9th August,
2019)

Source: ET Online Aug 9,
2019; at 11.12 am IST

 

Society News

TECHNOLOGY INITIATIVE STUDY CIRCLE

Meeting on ‘Simplify Accounting with QuickBook’ held on 19th July, 2019 at BCAS Conference Hall

The Technology Initiatives Study Circle of the Technology Initiative Committee of the BCAS organised a meeting styled ‘Simplify Accounting with QuickBook’ by CA Paresh Panchal on 19th July 2019.

Paresh explained how to set up QuickBooks online and introduced implementation aspects of QuickBooks that fellow Chartered Accountants could apply for small and mid-sized businesses. A brief overview of various aspects of the software was provided, namely, invoicing, taxing, expenses tracking with payment due dates, cash flow, bank integration and on-time balance along with cash flow movement. The session was followed by questions and answers.

Participants enjoyed the talk and the Q&A session that followed. All queries were answered by the speaker. The session was telecast live for the benefit of outstation members.

TECHNOLOGY INITIATIVE COMMITTEE

Meeting on ‘Hands-on Workshop on Dashboard Reporting with Advance Excel’ held on 2nd August, 2019 at BCAS Conference Hall

Another programme organised by the Technology Committee of the Society was a half-day programme called ‘Hands-on Workshop on Dashboard Reporting with Advance Excel’ at the BCAS Conference Hall on Friday, 2nd August, 2019.

The session was led by CA Nikunj Shah. He explained that Microsoft Power BI is a business intelligence platform that offers a business analytics toolset designed to assist businesses in their efforts to systematically analyse data and share insights.
Nikunj introduced several features on how to use external data to create a pivot table, thereby converting data into information and further into insight by creating a dashboard. He conducted the demonstration of various features of Excel such as creating interactive charts, updating charts with live data and linking charts with the data source for automatic update of charts; he shared his in-depth knowledge with the participants.

The session was highly interactive, and the speaker demonstrated:
(i) New functions of Excel 2013
(ii) Interactive controls to make the dashboard more useful
(iii) Dos & Don’ts of Dashboard
(iv) Dashboard FAQs

In short, participants learned new ways of working more effectively in a business environment. Nikunj answered all the questions raised by the participants who appreciated the efforts put in by the speaker and the group leaders.

TREE PLANTATION AND EYE CAMP BY HRD COMMITTEE

BCAS Tree Plantation Drive and Eye Camp 2019 – Visit to Dharampur-Vansda, Gujarat, on 3rd – 4th August, 2019

The Human Resource Development Committee of the BCAS, jointly with the BCAS Foundation, in the constant pursuit of contributing to the socio-economic development of tribals in the remote interiors of Dharampur district, organised an ambitious social cause visit on 3rd and 4th August, 2019. The visit was for two purposes – tree plantation as part of the mission the ‘Grow Green Drive’, along with captive plantation on farmers’ land at Khadki-Dharampur (at Sarvodaya Parivar Trust – SPT), and an eye camp for cataract surgery at Vansda, Gujarat (at Dhanvantari Trust – DT).

A team of 44 enthusiastic volunteers from BCAS collected over Rs. 5 lakhs as a contribution towards the twin noble causes and set off to visit Dharampur to personally fuel the mission with their active participation. The journey started on a morning when it rained very heavily, all the way from Mumbai to Valsad; this was followed by a bus journey to the little village of Khadki.

The Sarvodaya Parivar Trust is involved in empowering the tribals and making them self-reliant. It engages in various welfare activities in the fields of education / health / agriculture / water management / environment / public awareness programmes and so on.

With the help of local farmers, the enthusiastic BCAS members assisted in planting various saplings of custard apple, mahogany, ambli, kher and bamboo on the outskirts of village Pindval-Khadki. They also distributed and planted mango saplings on the farmers’ land. The team then visited the nursery developed and nurtured by Trustee Sujataben, who has dedicated her entire life to the SPT.
The BCAS Foundation has committed itself to the plantation of 10,000 trees and has already made a contribution of Rs. 3,00,001 received through generous donations from several donors.
The BCAS team was overwhelmed to meet a villager, Pandu, who donated his entire holding of three acres of land to the SPT for carrying out its activities. He has been associated with the SPT ever since then, giving
his selfless service for the noble cause of benefiting the tribal villagers.

The team also visited the residential school run by SPT at Pindval-Khadki and distributed various educational games / stationery / chocolates to the children. It was a pleasure to see the commendable developments that had taken place over the last few years, thanks to the earlier projects done by BCAS with the help of SPT’s selfless team, which has certainly made a difference to the quality and standard of living of tribals at such a remote, interior village.

The team expressed its gratitude and affection for fellow respected CA Virendrabhai and Ashaben Virendra Shah, a lovely, jovial couple dedicated to SPT, living life as per the Gandhian philosophy; they took charge of all the arrangements for the project and treated the visitors from Mumbai like family.
The night halt at Tithal energised all the participants for their visit the next day to the Dhanvantri Trust at Vansda where they organised an eye camp for cataract surgery of the tribal people. The DT trustees were delighted to take the team through the hospital ward to meet and interact with patients and discuss the selfless activities carried out by them.

The Dhanvantri Trust was founded by the Late Dr. Kirtikumar Vaidya, a doctor who left Mumbai at a young age and dedicated his life for the socio-economic development of tribal villages of South Gujarat. With divine blessings and inspiration from his Guru Sant Shri Ranchhod Dasji Bapu, he started the eye hospital in Vansda. Till date, it has performed more than 42,000 successful cataract surgeries and has expanded to a multi-specialty ward.

The BCAS Foundation has committed to help perform 200 cataract surgeries and has made a contribution of Rs. 2,00,001 received through generous donors.

The team departed with a heavy heart and innumerable memories to board the train back to Mumbai. The youth team that participated in the event was deeply moved with the deliberations of the senior members and the interactions with the trustees of the NGOs, inculcating in them values of life and inspiring them for selfless service to society. In turn, the senior members got enthused with the zeal of the young participants and their new and dynamic ideas. The bonding that was shared amongst them was indescribable and all felt truly blessed at the end of the journey.

Indeed this soulful trip was an elevating and enlightening experience for everybody to feel a bit of a shift within from sympathy to empathy.

DIRECT TAX STUDY CIRCLE

Meeting on ‘Angel Taxation’ on 5th August, 2019 at BCAS Conference Hall

The group leader, CA Mahesh Nayak, gave a brief overview of the introduction of section 56(2)(viib) of the Income-tax Act, 1961. The provision was then analysed in detail. The group leader next dwelt on the meaning of ‘company in which the public are substantially interested’, with illustrations.

Thereafter, the group discussed the exemptions in the case of investments by certain AIFs, the exemption for investment in startups and the investment restrictions applicable to them. The consequences of non-compliance of investment restrictions were discussed by way of an illustration.

Finally, the valuation methodology to be adopted as per Rule 11UA was discussed along with relevant case laws and the interaction of section 56(2)(viib) and section 56(2)(x) of the Act.

SOCIETY NEWS

MEETING ON ‘EQUALISATION LEVY 2.0’

 

The International Taxation
Committee conducted a virtual meeting on ‘Equalisation Levy – Finance Act,
2020 Amendments’
on 27th July, 2020. The meeting was led by Group
Leader Bhaumik Goda who explained the amendments in the Finance Act,
2020 in relation to the Equalisation Levy (EL).

 

The new business models
were facing a set of new tax challenges in terms of nexus, characterisation and
valuation of data and user contribution. Thus, there was a continuous need to
hone the working knowledge of taxation. It was in view of this that the group
discussion at the ITF Study Circle was organised and led by Bhaumik Goda.

 

In the course of the
meeting, he dealt with and discussed the EL legislation, the definition of
E-commerce operator, E-commerce supply or services, exemption and charge of EL.
Case studies pertaining to different industries were also brought up and
discussed to explain various features and the impact of EL. Participants said
that they had received several critical insights at the meeting.

 

ACCOUNTING SOFTWARE EXPLAINED

 

The Technology Initiatives
Committee of the BCAS conducted a webinar on ‘Hidden Gems of Tally ERP9
– Reports and Add-ons’ on 1st August. The meeting was led by Punit
Mehta
and Abhay Gadiya.

 

Punit Mehta explained the structure of Tally ERP9 Data for MIS
purposes. He also demonstrated the process of extracting the data with the use
of specialised tools. Certain add-on features of Tally for auto bank
reconciliation, copy of masters from one Tally account to another, auto
generation of similar entries through templates and so on were also explained.

 

Abhay Gadiya described the process of using the data extracted from
Tally for analysing and visualising in Power BI. The practical case studies
were very helpful in understanding the various graphics and charts that can be
created using Power BI. Both speakers replied in detail to the queries raised
by the attendees.

 

The live session was
attended by more than 700 participants on Zoom and YouTube. They appreciated
the efforts put in by the speakers.

 

24TH ‘ITF CONFERENCE 2020’ HELD ONLINE

 

This year’s International
Tax and Finance Conference was conducted online from 6th to 9th
August (with extended sessions on 14th and 15th August)
with a record attendance of 363 members from around 23 locations all over India
and abroad. The Conference was top-lined by experts from their respective
fields who dealt with their subjects with great clarity. The four-day
Conference was marked by seven technical sessions that included two group
discussion papers, one presentation, one expert chat and three panel
discussions.

 

There were a total of 23
faculty members, including speakers and session chairpersons, 16 group leaders
and about 30 contributors for case studies and the background material. It
clocked around 30 hours of solid study during the Conference.

 

Participants were divided
into six groups for group discussion on two papers written by Padamchand
Khincha
and Geeta Jani. Six breakaway rooms were created on the Zoom
platform and participants were seamlessly divided into different groups upon
their entry. About 16 leaders led the groups and helped generate in-depth
discussion of the case studies from the papers. Both the paper writers had a
virtual tour of each group to see the discussion by the participants.

 

President Suhas
Paranjpe
gave his opening remarks and explained some major BCAS
activities and its new initiatives. International Taxation Committee Chairman Dr.
Mayur B. Nayak
welcomed the participants and set the tone with his
introductory remarks.

 

The Conference was
inaugurated with a keynote address by Hon’ble Justice Vibhu Bakhru of
the Delhi High Court who spoke about the role of the taxpayer and the tax
authorities in today’s scenario.

 

Following the group
discussion on the issue, Padamchand Khincha in his presentation spread
over two sessions totalling six hours on ‘Practical application of the MLI in
relation to PE’, highlighted the issues in the interpretation of MLI and its
application on Permanent Establishment and the nuances of the interplay of the
MLI and synthesised text on specific tax treaties. Past President Kishor
Karia
chaired both the sessions and gave his valuable inputs on the
subject.

 

FEMA has become
increasingly complex and there are a host of issues which one needs to analyse
when dealing with any transaction that attracts it. A panel consisting of Mr.
G. Padmanabhan
, former Executive Director of the RBI, along with Hitesh
Gajaria
and Dr. Anup Shah and moderated by Past President Dilip
J. Thakkar
, shared its thoughts and offered insights on specific issues in
FEMA through case studies. These studies covered practical issues which would
be of relevance in today’s scenario such as implications of a returning OCI to
India, the recent circular by the Government to allow FDI from China only under
the approval route, downstream investments, agricultural income, ECB and
write-off of import payable against export receivable, and so on.

 

Gautam Doshi spoke on ‘Structuring of Outbound Transactions (tax and
non-tax aspects)’. He covered, in a succinct manner, the various tax and other
regulatory issues arising in setting up an SPV abroad as well as
externalisation of the family holding through a foreign trust. Past President Gautam
Nayak
chaired the session and also provided his insights on the subject.

 

Taxation of the digitised
economy is a hot topic with the world trying to find a consensus to enable
taxation of the highly-digitised businesses, even as a host of countries
including India have undertaken unilateral measures in this respect. Mr. Sam
Sim
, board member of the Tax Executive Institute in Singapore, in his
presentation covered various measures undertaken by different jurisdictions and
also shared his thoughts on some of the alternative approaches available.

 

Rashmin Sanghvi, in his presentation, covered the potential trade war on
account of various measures adopted by the countries and the role of the US in
the same. He also gave his views on the shortcomings of Pillar 1 of the Unified
Approach propagated by the OECD and currently being discussed by various countries.
This was followed by a panel discussion featuring Mr. Sam Sim, Rashmin
Sanghvi, Mr. Mukesh Butani
(advocate) and Shefali Goradia and chaired
by Mr. K. Vaitheeswaran (advocate). The panel deliberated on the issue
at length and provided its views on various facets in the Indian approach to
taxing the digitised economy such as the Equalisation Levy, the significant
economic presence and the extended source rule. Mr. Vaitheeswaran gave his valuable inputs and comments on several
issues.

 

The group discussion on
the paper written by Geeta Jani on ‘Case studies on impact of MLI on
select tax treaties with special emphasis on taxation of dividends’ took place
on 8th August. In her presentation, which followed the group
discussion, she brought out the various nuances in the application of the GAAR,
LOB and PPT provisions in respect of dividend payments as well as the interplay
of the MFN clause with the PPT provisions. Her presentation was based on case
studies for easy understanding in an online format. The session was chaired by Sushil
Lakhani
who also offered his views on the issue.

 

Mutual Agreement Procedure
(MAP) has gained significance due to the complex rules of various countries. T.P.
Ostwal
and Mr. Rajat Bansal, IRS, in an expert chat took the
participants through the MAP provisions and also shared their views on the
practical aspects of the MAP procedure, how to apply for the same and India’s
position in relation to the use of MAP as an effective tool for dispute
resolution.

 

The
last technical session was a panel discussion on ‘Case Studies on International
Taxation’. The panel consisted of Mr. Pramod Kumar, Vice-President of the
ITAT, Mr. Kamlesh Varshney, IRS, and Mr. Ajay Vohra, senior
advocate. It was chaired by Pranav Satya. It was quite a unique
discussion in that the panellists discussed issues from different possible
perspectives.


The issues discussed covered a range of topics of relevance in today’s world –
application of tax treaty
to DDT, royalty / FTS vs. EL, EL on E-commerce transactions, beneficial owner,
applicability of GAAR to indirect transfer, foreign tax credit and hybrid
entities. The panel was gracious enough to take part in another session on 15th
August which also lasted two and a half hours.

 

In addition, there were
two non-technical programmes for the participants – a musical programme by Nishant
Gadhok
and a Hasya Kavi Sammelan by Mr. Mahesh Dube and
Mrs. Savitri Kocher.

 

While the personal touch
and the camaraderie amongst the participants during physical Conferences were
certainly missed, the participants were compensated by the experts’ views
shared at the virtual Conference.

 

Incidentally, this was the
first Residential Refresher Course of the BCAS and the International
Taxation Committee in its true sense and meaning, where delegates participated
from their respective residences!

 

Mahesh Nayak was the chief coordinator and was ably assisted by Abbas
Jaorawala
as joint coordinator. The other members of the team were Ganesh
Rajgopalan, Bhaumik Goda, Rutvik Sanghvi, Siddharth Banwat
and Rajesh P.
Shah.

 

The Conference received an
encouraging response and feedback from the participants.

 

 

The 13th Jal
Erach Dastur CA Students’ Annual Day – ‘Tarang 2020’
was held online on
Zoom Cloud Meetings and broadcast live on YouTube on Sunday, 9th
August, by the BCAS Students’ Forum under the auspices of the Human
Resource Development Committee.

 

Taking Tarang
online for the first time involved several experiments but the long days and
longer nights of adaptation and innovation, technical checks and video call
meetings brought together over 650 students from across the country to prove
once again that CA students think about a lot more than just tax and audit. The
student coordinators Drishti Bajaj and Azvi Khalid took the lead
in the organisation.

 

The participants for ‘Talk
Hawk’ and the ‘Talent Show’ sent their audition entries as pre-recorded videos
and later performed live. Two new events were introduced this year – a ‘Quiz’
and a ‘Research Paper’ competition. Apart from these, Tarang also
featured an Antakshari competition, a talent show and an elocution
competition, resulting in a lifetime of learnings and memories. The theme for Tarang
this year was ‘Bollywood Retro’.

 

The event was sponsored by
Mr. Sohrab Dastur in memory of his brother, the Late Mr. Jal Erach
Dastur
. The Students’ Forum comprised of a group of 25 dedicated and
enthusiastic students. The event was truly an event ‘OF CA STUDENTS, FOR CA
STUDENTS AND BY CA STUDENTS’
. It imparted necessary life skills such as
public speaking, management and marketing skills, and even technical skills.

 

BCAS President Suhas Paranjpe and HRD Committee
Chairman Govind Goyal gave their inaugural speeches which were
motivating and lauded the students for participating in the event which
commenced with a prayer song to ensure a positive beginning.

 

The two finalist teams of
the lively Antakshari competition, styled ‘Suron ke Maharathi’ (or
‘Zoomtakshri’) were ‘Deewane’ and ‘Parwane’. They took over everyone’s screens
and hearts. The Antakshari held true to this year’s theme of ‘Bollywood
Retro’ and the quick-thinking and accuracy of the participants during the game
that has been played by every Indian household was both a surprise and a
delight.

 

The next event was the
quiz ‘inQUIZitive – Eureka Moments’ wherein the ten finalists were divided into
five teams (these were previously chosen after two elimination rounds). The
quiz was hosted by student Parth Patani. Everyone got a ‘KBC feel’ as
the participants answered question after question at astonishing speed,
managing to keep everyone hooked on to the screen.

 

The end of the
brainstorming quiz session led to the start of the signature event, ‘Talk
Hawk’, wherein the five finalists had to give a four-minute ‘Ted Talk’ on one
of the following topics:

 

1. Waiting is the hardest
part of life

2. Fringe benefits of
failure

3. Doing things we don’t
enjoy is discipline.

 

The viewers could feel the
energy of each of the speakers bursting forth from the comfort of their homes.
The insight and perspective that each person offered was encouraging. The
confidence and manner of delivering their thoughts was captivating.

 

And then it was time to
announce the winners of the research paper contest for ‘Writopedia’. The topics
offered were:

 

1. WHO Controversy – Lack
of Global Leadership in the Corona Crisis

2. How the Goals of
Feminists have Changed over the Decade

3. Can Encounters be used
to Bypass the Indian Judicial System

4. Untapped Potential of
North-Eastern States of India.

 

The judges shared their
thoughts on how they were surprised to go through several well-written papers.
They also described the building blocks of a well-written research paper and
how it was different from an essay.

 

Last, but not the least,
it was time for ‘CAs Got Talent’ wherein three persons each from the categories
singing, dancing and other performing arts helped make the evening entertaining,
leaving the participants asking for more. One inherent benefit of the online
competition this year was that initial entries from over 130 students were
received for various presentations, such as mono-acting, yoga, rapping, etc.,
bringing out the hidden talent of CA students. The judges had a hard time
finalising the top 12, let alone deciding the winners.

 

The winners were then
announced, each representing their firms, as follows:

 

Research Paper Competition
– ‘Writopedia’

Prize

Name
of Student

Name
of Firm

City

1st Prize Winner

Vedant Satya

CA student

Lucknow

2nd Prize Winner

Priya D’Costa

Vishwanathan Subramanian

Mumbai

 

 

Talk Hawk – ‘Aspire to
Inspire’

Prize

Name
of Student

Name
of Firm

City

1st Prize Winner

Tanmay Modi

K.C. Mehta and Co

Vadodara

2nd Prize Winner

Vanishree Srinivasan

Singhvi Oturkar Kelkar

Thane

 

 

Talent Show ‘CA’s Got
Talent’

Prize

Name of Student

Name of Firm

City

1st Prize
(Singing Category)

Vanishree Srinivasan

Singhvi Oturkar Kelkar

Thane

1st Prize (Others Category)

Prakhar Gupta

D.K. Surana & Associates

Indore

1st Prize (Dancing Category)

Sanjana Subramanian

          

Mumbai


Antakshari Competition –
‘Suro ke Maharathi’

Prize

Name
of Student

Name
of Firm

City

Winning Team

 

 

Best Individual Performer

Jagat Dave

Dipen Mehta & Co.

Mumbai

Nisarg Shah

Mumbai

Bidisha Banerjee

Kolkata

Jagat Dave

Dipen Mehta & Co.

Mumbai

 

Quiz – ‘inQUIZitive’

Prize

Name
of Student

Name
of Firm

City

Winning Team

 

Best Individual Performer

Kalpak Masalia

CA student

Pune

Mangesh Pai

CA student

Mumbai

Akash Sagar

Lucknow

 

 

Hearty
Congratulations to all the winners and their firms.

 

The judges for the various
competitions were as follows:

Competition

Level
1

Elimination
Rounds

Final
Round

Writopedia

Nikunj Shah
Raman Jokhakar

Talk Hawk

Apurva Wani
Mukesh Trivedi

Rajesh Muni
Mihir Sheth

Narayan Pasari
Mayur Nayak
Mudit Yadav

Antakshari

Yogesh Arya (Judge), Nidhi Shah (Judge)
Vijay Bhatt (Host), Meena Shah (Host), Tej Bhatt (Host)

Talent Show

Hrudyesh Pankhania,
Tanvi Parekh

Rishikesh Joshi
Devansh Doshi
Parita Shah

Mihir Sheth
Aditya Phadke

 

Mr. Soham Pandya, a member of the technical team that held the event
together, proposed the vote of thanks to Mr. Dastur’s family, the Office
Bearers, the Managing Committee and HRD Committee members, the coordinators of
the Annual Day, the BCAS staff, the creative, social media and technical
teams, the vibrant team of student volunteers and all the students for
participating in big numbers.

 

With
another successful Tarang held, this time in a new format, it was an
unprecedented experience for the students who put up a great show in these
challenging times.

 

Mr. Dastur watched the event live on YouTube and was overwhelmed
with the performances. BCAS is honoured to receive the following letter
of appreciation from him:


 

 

‘TUNE INTO YOUR EMOTIONS’

The HRD Study Circle meeting
was held on 11th August with a session on ‘Tune into your Emotions
and Bounce back with Resilience’ presented by Leonie D’Mello, an
experienced counsellor, behavioural trainer and energy healer.

 

The session covered the
basics of Emotional Intelligence. The icebreaker, when participants were asked
to share what they were feeling at the moment, helped to bring home how we may
confuse our thoughts and feelings. Tuning into one’s emotions is to be able to
identify and be aware of one’s feelings. Self-awareness can then lead to other
awareness and social awareness. Self-awareness is necessary for self-management
and, together with social awareness, leads the way for effective relationship
management.

 

The session allowed
exploration of how we express our emotions. Taking responsibility for our
feelings and healthy expression is preferable since suppression of feelings
causes diseases.

 

Participants then shared
the feelings that they had experienced in the past four months of the pandemic
and lockdown. Most of these were difficult feelings as it had been a tough
period for each one of them. Light was thrown on the purpose of these difficult
feelings so that we understand why they are there, listen to the message that
they have for us and allow them to guide us to the best course of action – thus
enabling us to regain our mental equilibrium and tapping into the inner
strength of resilience to bounce back.

 

Being mindful of the
present moment and living in the here and now, reframing events and looking at
things from a different perspective enables us to regulate our feelings.
Nurturing ourselves and taking support from our near and dear ones and
embracing change are some of the ways in which we can build our resilience,
according to Leonie D’Mello

 

JOINT WEBINAR WITH IACC


Just slash the regime of
767 establishment approvals to fuel India’s post-Covid recovery through FDI,
several experts urged at the online webinar organised by the IACC in
association with the BCAS on 12th August on the topic ‘Investment
into India and the USA’
. The economic slowdown due to the global pandemic
has made other countries think about China and its future strategy towards
global trade and commerce. For this, IACC brought together many industry
experts having rich experience in cross-border investments.

 

The eminent experts were Nishith
Desai
, Founder and Partner, Nishith Desai & Associates; Sunil Kaul,
Managing Director and Head, Southeast Director Asia, Carlyle Group; Hoonar
Janu
, Co-Head, Americas Region, Invest India; Dave Springsteen,
Partner, Withum; Timothy R. Lavender and Deepak Nambiar, Partners
at Kelley Drye; Kamlesh Vikamsey, Senior Partner, Khimji Kunverji &
Co.; and Rajesh Tripathi, Principal, US-India Corridor, Withum. Rajesh
Tripathi
and Deepak Nambiar moderated the discussion.

 

Mr. Desai said that India needed to develop the art of
visualisation to uproot investments from China to India. The most critical
challenge was environmental policies. Similarly, India should become a heaven
to attract foreign investments, a rather difficult task. Some contrasting
trends had been seen in investment – investment in manufacturing and
infrastructure had taken some beating. Looking at services, there had been a
huge upsurge; technology, media and entertainment, telecom, pharma, healthcare,
medical devices, agrotech, IoT, financial services, especially insurance, were
catching up. The Government had opened the insurance sector for investment up
to 45%, but in case of intermediate investment it was allowed up to 100%.

 

Mr. Kaul said that India would be competing with other South-East
Asian countries for this chunk of business such as Vietnam which was very
welcoming to foreign companies. There was also the case of regulatory controls
and taxation policies. India had to simplify its tax systems and provide ease
and predictability in the tax and regulatory structures.

 

But standing in the way
(of inviting investment into the nation) was the lack of single-window
clearance for investors, said Naushad Panjwani, BCAS Past President and
also the Regional President of the IACC, West India Council. He narrated how
foreign businesses who sought to develop roots in India had to face a committee
of secretaries from 35 Central Ministries or Departments, apart from an overall
regime of 767 pre-operational licenses. Adding to this was the multitude of
inspections, approvals and renewals after the commencement of operations.

 

Mr. Vikamsey said the second piece in this puzzle was to find a
solution to the issue of tax on cross-border or international transactions. The
challenge in India was implementing and interpreting its plethora of good laws.
Several developments were taking place right now, offering better opportunities
for India. American businesses that were looking for better opportunities,
provided a chance for all, thanks to the large market here.

 

Ms Hoonar Janu said American ventures had spiked by four times in
pursuit of defence partnerships and three times for healthcare. That underlined the larger, strategic relationship,
all thanks to the economic strength of India.

 

The webinar was well
moderated by Rajesh Tripathi and Deepak Nambiar. The vote of
thanks was proposed by BCAS President Suhas Paranjpe.

 

‘CASE STUDIES ON GAAR’

 

The International Taxation
Committee conducted a virtual meeting on ‘Case Studies on GAAR’ on 24th
August. The discussions were led by Group Leader Rutvik Sanghavi who
explained the far-reaching practical impact of GAAR through relevant case
studies.

 

The concept of GAAR is
predominantly based on the concept of ‘substance over form.’ The Group Leaders began
the meeting by taking up a flow-chart of GAAR applications. They discussed the
key points to be kept in mind before concluding whether transactions were
GAAR-tainted. The speakers dealt with various case studies to explain the
conceptual aspects of GAAR.

 

It was an
interactive meeting and the participants said they had enormously benefited
from the discussions and insights provided during the same.

 

 

 

Great amount of scientific research is there to show
that health is better
because transcendental meditation deals with consciousness,
and consciousness is the basic value of all the physical expressions.
The entire creation is the expression of consciousness.

 
Maharishi Mahesh Yogi

 

REPRESENTATION

 

 

 

                                                                                                                                            26.08.2020

 

Smt.
Nirmala Sitharaman,

Hon’ble
Minister of Finance & Minister of Corporate Affairs,

New Delhi – 110001

 

Madam,

 

Subject: Request for extension of due date for holding Annual General Meeting (AGM) under the Companies Act, 2013
for companies whose
financial year has
ended on 31.03.2020

 

1. We draw your kind attention to General
Circular (GC) No. 28/2020 dated 17th August, 2020 whereby the
Ministry of Corporate Affairs has, after considering the representations for
extension of AGM for the financial year ended 31.03.2020, have asked the
Companies to seek extension of time in holding AGM with the concerned Registrar
of Companies on or before 29.09.2020. The aforesaid GC also mentions procedural
relaxations granted vide GC 20/2020 dated 21.04.2020 to conduct the AGM through
video conferencing (VC) or other audio-visual means (OAVM).

 

2. Whereas the procedural relaxations
granted vide aforesaid GC 20/2020 dated 21.04.2020 would go a long way in
mitigating hardships for conducting AGM, however, at present, the companies are
struggling even to finalize their financial statements for the financial year
ending 31.03.2020. These financial statements would then be required to be
audited by the statutory auditors of the company for laying before the AGM.

 

3. Your goodself is aware that due to
nation-wide lockdown in the months of March, April and May, 2020 and the
staggered process of unlocking from June, 2020 on account of Covid-19, the
offices of the companies as well as of their Chartered Accountant auditors have
largely remained closed. Since the Covid-19 infections are still increasing
exponentially, the level of activity in the offices of the Companies is limited
to achieving day-to-day functioning for running the business. Consequently,
finalization of financial statements for the financial year 2019-20 has taken a
backseat and priority is being given to run the business.

 

4. It would be relevant to mention here that
though large companies and their auditors with their elaborate ERP systems have
been able to finalize their audited financial statements through Work from Home
infrastructures, the mid-segment and small segment companies due to severe
infrastructural handicaps have been struggling to finalize their financial
statements for the financial year ended 31.03.2020. Needless to mention that
most of these companies are audited by small and medium sized Chartered
Accountant auditors by making physical visits to the company’s offices which is
not possible due to the pandemic. In a nutshell, the difficulties faced by
small and medium sized companies whether for running the business or for making
necessary compliances under various laws cannot be overemphasized.

 

5. The aforesaid GC 28/2020 dated 17.08.2020
has caused a lot of consternation in the management of such small and medium
sized companies as it would now require them to seek extension of time for
holding AGM by making necessary compliances in these already trying times.

 

6. In view of genuine hardships arisen
due to Covid-19 pandemic, we request you to kindly consider our request for
blanket extension of due date for holding AGM under section 96 of the Companies
Act, 2013 of those companies whose financial year has ended on 31.03.2020
(other than first financial year) by at least three months from 30th
September, 2020 to 31st December, 2020 instead of requiring the
companies to seek extensions separately.



Respectfully Submitted,


Thanking you

Yours sincerely,

 

 

 

 

 

Cc to:
The Secretary, Ministry of Corporate Affairs,
Government of India, Shastri Bhawan,  Dr.
Rajendra Prasad Road,
New Delhi – 110001

 

 

 

 

You will be the same person in five years as you are
today,
except for the people you meet and the books you read.

                                  — 
John Wooden

 

MISCELLANEA

I. Technology

 

22. The long journey into holographic
transportation

 

Who can forget Princess
Leia’s hologram asking for Obi-Wan Kenobi’s help in the movie Star Wars?
That was perhaps the best-known hologram of the many used in the Star Wars
franchise movies, but the power and promise of holographic technology have been
depicted in science fiction stories for years.

 

The starship Voyager’s
chief medical officer in Star Trek: Voyager was a hologram and
holographic characters and ships are featured in several episodes in the Star
Trek: The Next Generation
series.

 

Holographic transportation
is ‘an extension of mixed reality, a new use case if you will,’ Rob Enderle,
principal analyst at the Enderle Group, told TechNewsWorld. ‘It’s more a
variant on telepresence.’

 

Aexa Aerospace, which
provides custom software and hologram development for mixed and virtual reality
devices for aerospace, medical and other industries, is one of several
companies working on holographic transportation. The company demonstrated a
holographic interaction between CEO Fernando De La Peña Llaca, in his Houston,
Texas, office and company software architect Nathan Ream in his Huntsville,
Alabama, office.

 

Ream’s hologram was
imported into De La Peña Llaca’s office, then Ream pointed to various objects
and read from a magazine in the CEO’s office in real time when asked. The two
also played Tic-Tac-Toe. Ream won. However, an attempt to shake hands failed.

 

Aexa Aerospace has
demonstrated the prototype to a potential client in a United States government
department, Ream said. It’s targeting a first release for late summer and that
‘could be working at the client’s facility before the end of 2020.’

 

Microsoft researchers
coined the name ‘holoportation’ for holographic transportation. The company
trademarked the term in 2018. Still, holographic transportation ‘is not
offering anything that augmented reality, virtual reality, mixed reality and
cross reality doesn’t,’ Michael Hoffman, a founding partner at Object Theory,
told TechNewsWorld. Hoffman was a principal lead on the Microsoft HoloLens
team.

 

(Source:
www.technewsworld.com – 14th August, 2020)

 

23. Trump tells TikTok to find US owner
within 90 days, or close its business

 

US
President Donald Trump issued a new executive order extending the timeline for
ByteDance, the parent company of TikTok, to sell its US business or wrap up its American
operations. According to the earlier executive order, ByteDance was given a
45-day deadline that was to end on 20th September, 2020. With the
new executive order, ByteDance has got slight relief since it now has time
until 12th November to work out a sale deal.

 

In the
order issued on 14th August, Trump wrote, ‘There is credible
evidence that leads me to believe that ByteDance… might take action that
threatens to impair the national security of the United States.’ The US
government has highlighted the issue that TikTok may share data and information
about Americans with the Chinese government. The company has denied that it has
ever done so.

 

Earlier,
TikTok was banned by the Indian government, citing national security and user
privacy concerns. The latest US order also requires ByteDance to destroy all
TikTok data from American users and destroy any data from TikTok’s predecessor
app Musical.ly, which was acquired by ByteDance in 2017. Further, ByteDance
must report to the Committee on Foreign Investment in the United States once
all the data has been erased. TikTok, the short video creating and sharing
platform, has over 80 million users in the United States.

 

(Source:
www.indiatoday.in – 15th August, 2020)

 

24. New work order:
Notebook sales hit an all-time high, courtesy work-from-home amid Covid

 

The lockdown and work from
home (WFH) saw demand for notebooks hit an all-time high, with even companies
placing large-scale orders for employees to ensure business continuity.
Notebook sales saw a whopping 105.5% y-o-y growth during the April-June period.

 

As
per analysts, Q2FY2020 has had some bright moments for the domestic PC market
as decline in desktops and workstations was to an extent arrested by the huge
demand for laptops. Traditionally, January-March sees an increase in demand, but
due to Covid the pent up demand shifted to Q2. Besides, WFH further perked up
the market for notebooks.

 

According to IDC, most IT
services, global enterprises and consulting companies placed large orders for
notebook PCs. This led to an all-time high of enterprise notebook purchases
with shipments growing by 105.5% y-o-y in Q2FY2020. Small and medium businesses
(SMBs) also increased their procurement of notebooks with relatively moderate
growth of 12.1% on an annual basis.

 

‘Demand for notebooks
exceeded expectations with most of the vendors exiting the quarter with minimum
inventory. Despite supply and logistics challenges in the first half of the
quarter, companies executed most of the large orders in Q2. Besides, many
companies shifted their employees to notebooks for the first time; this change
is surely going to alter their procurement strategy in the long term with a mix
of in-office and remote workforce becoming a reality for many organisations,’
said IDC India market analyst (PC devices) Bharath Shenoy.

 

With
most of India under lockdown, IT companies such as TCS, HCL, Infosys and Wipro
have all announced arrangements for employees to work from home for the foreseeable future. The pandemic forced most IT
companies
in India to forego their strict office-based working policies
in favour of adopting new hybrid working arrangements to ensure business
continuity during the lockdown.

 

(Source:
www.financialexpress.com – 16th August, 2020)

 

II. Sports News

 

25. M.S. Dhoni announces
retirement from international cricket

 

M.S. Dhoni, the former
Captain of the Indian cricket team, has announced his retirement from
international cricket, bringing down the curtains on a near 16-year-long
storied career of one of the country’s greatest limited-overs cricketers. Dhoni
retires as India’s most successful captain in limited-over internationals,
having won three ICC trophies – the 2007 T20 World Cup, the 50-over World Cup
in 2011 and the 2013 ICC
Champions
Trophy – the only Captain to do so.

 

Dhoni, 39, made the
confirmation through a video on Instagram, its caption reading: ‘Thanks –
Thanks a lot for ur love and support throughout. From 1929 hrs consider me as
Retired.’

 

The announcement means
that Dhoni’s last India game would remain the semi-final of the 2019 ICC
Cricket World Cup in which India lost to New Zealand by 18 runs. It was his
350th ODI, in which he scored 50 off 72 balls before being run-out
by a bullet throw from Martin Guptill in the deep. Incidentally, Dhoni was
run-out in his first ODI as well.

 

Having retired from Test
cricket in December of 2014 with 4,876 runs from 90 matches, Dhoni carried on
playing ODIs and T20Is. With 10,733 runs, Dhoni is fifth in the list of India’s
all-time run-scorers in ODIs behind Sachin Tendulkar, Virat Kohli, Sourav
Ganguly and Rahul Dravid. His overall Indian numbers are staggering: 538
matches, 17,266 runs, 16 centuries, 108 fifties, 359 sixes, 829 dismissals.

 

Dhoni’s future was a hot
topic of speculation since his sabbatical from cricket following India’s World
Cup exit. Ever since the defeat to New Zealand, Dhoni did not play any form of
cricket in the last one year, hinting he might have played his last in India
colours. Dhoni, however, would be turning up in the IPL where he will captain
the Chennai Super Kings in the tournament’s 13th season, to be
played in the UAE.

 

(Source:
www.hindustantimes.com – 16th August, 2020)

 

III. World News

 

26. Citi wired $900
million in ‘clerical error’, they won’t hand cash back

 

Even for Citigroup Inc.,
it was big money. Loan operations staff at the New York bank wired $900
million, seemingly on behalf of Revlon Inc., to lenders of the troubled
cosmetics giant controlled by billionaire Ron Perelman.

 

It was a mistake for the
ages – a ‘clerical error,’ as Citigroup told lenders – that’s now plunged the
bank into a battle between the Perelman empire and a corps of sharp-edged
investment funds that have become its impatient creditors.

 

One financier involved
likened the surprise payment to finding a fortune on the sidewalk. And, as of a
week later, several hedge funds who claim Revlon was in default on the loan
were showing no signs that they’ll be giving Citigroup its money back.

 

The wayward transfer of
nearly a billion dollars appears to be one of the biggest screw-ups on Wall
Street in ages and it’s set tongues wagging in financial markets. The question
everyone is asking: how could this happen? A spokeswoman for Citi declined to
comment. A representative for Revlon said in an emailed statement that Revlon
itself didn’t pay down the loan, or any portion of it.

 

‘It’s
a billion-dollar clerical error,’ said Michael Stanton, a former restructuring
and bankruptcy adviser. ‘This is probably knocking around some very big rooms
at Citibank.’

 

(Source: www.ndtv.com – 17th
August, 2020)

 

27. Pakistan’s blasphemy
law a weapon of revenge used against minorities

 

Radical Islamists of
Pakistan found a new ‘hero’ recently. His name is Khalid Khan, who shot dead
Tahir Naseem, an American citizen accused of blasphemy, in a Peshawar courtroom
on 29th July.

 

Even though Khalid Khan
surrendered before the police, thousands rallied in his support and his photos
were shared widely on social media. Before he was taken to the court, he was
welcomed with hugs and kisses.

 

Naseem was charged with
blasphemy in 2018 after he declared himself Islam’s prophet.

 

The killing has ignited a
debate on the dangerous blasphemy law and Pakistani society’s mindset in
general. Pakistan’s blasphemy laws (PPC section 295 and subsections, section
298 and subsections) state that ‘derogatory’ remarks on the Prophet Muhammad,
insulting any religion, disturbing a religious assembly and trespassing on
burial grounds can cause lifetime imprisonment or sentence to death.

 

Till now, no blasphemy
convict has been executed by Pakistan but allegations of blasphemy are enough
to cause riots and killing of accused by vigilante groups. According to Al
Jazeera
, 77 people have been killed since 1990 over accusations of
blasphemy. In Pakistan, as per data released by the National Commission for
Justice and Peace, a total of 776 Muslims, 505 Ahmadis, 229 Christians and 30
Hindus have been accused under the various clauses of the blasphemy law from
1987 to 2018. Ahmadis, Christians and Hindus constitute less than 4% of the
general population of Pakistan, but they account for around 50% of blasphemy
accused.

 

It isn’t that a politician
has never tried to change these laws or bring reforms. But those who did faced
the wrath of the religious zealot section of the country. In 2011, Punjab
Governor Salman Taseer was killed by his own guard after he defended a Christian
woman, Asia Bibi, accused of blasphemy. She was acquitted in 2018.

 

Rights groups and critics
say Pakistan’s blasphemy laws are often used against religious minorities.
Often the laws are used as a weapon of revenge. Therefore, there’s an urgent
need to replace these laws.

 

It is important that
murderers like Khalid Khan be given maximum punishment by the judiciary to set
an example that the guilty will not be spared. If Pakistan wants to prove
itself as a haven for religious freedom, then it must ban these regressive
laws.

 

It’s also imperative that
global powers raise this issue on international platforms to create pressure on
the internal politics of the country. A proposal to put sanctions or
interrogation at international level may force them to think on this again.
Progressive countries of the world should give refuge to the acquitted.

 

(Source:
www.outlookindia.com – 13th August, 2020)

 

IV. Spiritual

 

28. Is being a Hindu
acceptable but having faith in Hindutva ‘dangerous’? Quite the contrary

 

Is being a Hindu
acceptable while faith in Hindutva is not? Is it even dangerous? Many Hindus
seem wary to be associated with Hindutva in spite of the fact that Hindutva
simply means Hindu-ness or being Hindu. They tend to accept the view which
mainstream media has peddled for long: ‘Hindutva is intolerant and stands for
the communal agenda of an extreme right Hindu party that wants to force uniform
Hinduism on this vast country which is fully against the true Hindu ethos.’

 

‘Hindutva is indicative
more of the way of life of the Indian people… Considering Hindutva as hostile,
inimical, or intolerant of other faiths, or as communal, proceeds from an
improper appreciation of its true meaning.’

 

From personal experience,
I also came to the conclusion that Hindutva is not communal and dangerous.

 

For many years I lived in
‘spiritual India’ without having any idea how important the terms ‘secular’ and
‘communal’ were. The people I met valued India’s great Vedic heritage. They
gave me tips, which texts to read, which Sants to meet, which mantras
to learn, etc., and I wrote about it for German magazines. I thought that all
Indians are proud of their ancestors, who had stunningly deep insights into
what is true and who left a huge legacy of precious texts unparalleled in the
world.

 

However, when I settled in
a ‘normal’ environment away from ashrams and connected with the
English-speaking middle class, I was shocked that several of my new friends
with Hindu names were ridiculing Hinduism without knowing anything about it.
They had not even read the Bhagavad Gita but claimed that Hinduism was
the most depraved of all religions and responsible for the ills India is
facing. The caste system and the Manusmriti were quoted as proof.

 

My new acquaintances had
expected me to join them in denouncing ‘violent’ Hinduism which I could not do
as I knew too much, not only from reading but also from doing sadhana.
They declared that I had read the wrong books and asked me to read the right books,
which would give me the ‘correct’ understanding. They obviously didn’t doubt
that their own view was correct.

 

My neighbour, a
self-declared communist, introduced me occasionally to his friends as ‘the
local RSS pracharak’. It was half in jest, but more than half intended
to be demeaning. My reaction at that time: ‘If RSS is in tune with my views,
then it must be good.’

 

Standing up for Hindu Dharma
indicted me as belonging to the ‘Hindutva brigade’ that is shunned by political
correctness. My fault was that I said that Hindu Dharma is the best
option for any society.

 

Of course, my stand is not
communal or dangerous. Hindu Dharma is indeed not only inclusive but
also most beneficial for the individual and for society and needs to gain
strength. And yes, politicians, too, need to base their lives on Hindu Dharma
if they want to be efficient in serving society. Propagating blind belief
has no place in politics, but following Dharma is in the interest of
all.

 

Humanity needs to win over
the madness that ‘the Supreme Being’ loves only those human beings who believe
in a certain book and condemns all others to eternal hellfire. But how to make
them see sense?

 

Even some staunch
‘secular’ Indians occasionally declare themselves as Hindus. It’s a good sign,
but they usually get something wrong: They believe that being Hindu means that
everything goes – believe in a god or not, be vegetarian or not, go to temples
or not. It even seems to imply: be truthful or not. They portray Hindu Dharma
as having no fundamentals.

 

Being Hindu means to know
and value the profound insights of the Rishis and follow their
recommendations in one’s life. These insights may not be obvious to the senses,
like the claim that everything, including nature, is permeated by the one
consciousness (Brahman), but it can be realised as true; similarly, as
it is not obvious that the earth goes around the sun, but it can be proven.
Being a Hindu does not require blind belief.

 

Being Hindu also means
having the welfare of all at heart including animals and nature, because each
part is intimately connected with the Whole.

 

Being
Hindu means following one’s conscience and using one’s intelligence well. It
means diving into oneself, trying to connect with one’s Essence. It means
trusting one’s own Self, Atman, and doing the right thing at the right
time.

 

Being Hindu means being
wise – not deluded or gullible or foolish. This wisdom about the truth of this
universe and about how to live life in the best possible way was discovered and
preserved in India. Yet its tenets are universal and valid for all humanity.

 

Isn’t it time for our
interconnected world to realise this and benefit?

 

(Source: OpIndia.com – 6th
August, 2020); Author: Maria Wirth from Germany and living in India for 38
years)

 

V. Markets

 

29. Tencent loses nearly
$34 billion since the PUBG Mobile ban in India — its second-largest valuation
dip this year

 

Chinese technology company
Tencent loses $34 billion in two days since Indian mobile app ban took away the
largest set of users from its iconic game, PlayerUnknown’s Battlegrounds
(PUBG)Tencent

 

  •  The company behind the
    Chinese app PlayerUnknown’s Battlegrounds (PUBG) Mobile, Tencent, is trading in
    the red for a second straight day after the Indian government banned the battle
    royale game.

 

  •  Its market value has
    plummeted by nearly $34 billion over the last two days with Tencent’s share
    price falling by 2% yesterday and is over 3% in the red so far today.

 

  •  The company said that
    they will engage with the Indian authorities to ensure the continued availability
    of their apps in India.

 

The Chinese technology
mammoth Tencent has lost nearly $34 billion (HK$ 261.05) of its market value
over the last two days after news of its signature battle royale game
PlayerUnknown’s Battlegrounds (PUBG) Mobile being banned by the Indian
government. This is the second biggest dip in Tencent’s valuation since
Bloomberg reported that the company lost $66 billion last month when the US
President Donald Trump banned WeChat.

 

India makes up one-fourth
of PUBG’s user base


Tencent first set its eyes
on India in 2017 when it pumped in $700 million into India’s most valuable
Internet at the time – Flipkart – and another $1.1 billion into the cab-hailing
service Ola. Already leading in China, the technology behemoth was looking at India’s
market to provide the growth it needed to keep up valuations.

 

One year down the line,
after a soft launch in China, it released PUBG to the rest of the world. Come
2020, gamers in India account for nearly a quarter of its downloads – ahead of
even China, according to data by Sensor Tower.

 

(Source: Business Insider,
4th September, 2020)

 

 

 

 

VI. Psychology

 

30. Kids today are
lacking these psychological nutrients

 

When
it comes to the rules and restrictions placed on children, author and Stanford
Graduate School of Business lecturer Nir Eyal argues that they have a lot in
common with another restricted population in society: prisoners. These
restrictions have contributed to a generation that overuses and is distracted
by technology.

 

Self-determination
theory, a popular theory of human motivation, says that we all need three
things for psychological well-being: competence, autonomy, and relatedness.
When we are denied these psychological nutrients, the needs displacement
hypothesis says that we look for them elsewhere. For kids today, that means
more video games and screen time.

 

In
order to raise indistractable kids, Eyal says we must first address
issues of overscheduling, de-emphasise standardised tests as indicators of
competency, and provide them with ample free time so that they can be properly
socialised in the real world and not look to technology to fill those voids.

 

 (Source: Big Think, 30th April,
2020)

 

You could try to pound your head against the wall and
think of original ideas or
you can cheat by reading them in books.

 
@patrickc

 

In life, loss is inevitable. Everyone knows this, yet
in the core of most people it remains deeply denied – ‘This should not happen
to me.’ It is for this reason that loss is the most difficult challenge one has
to face as a human being

  
Dayananda Saraswati

FINANCIAL REPORTING DOSSIER

This article provides: (a)
key recent updates in the financial reporting space globally; (b)
insights into an accounting topic, viz., the functional currency approach;
(c) compliance aspects related to Impairment of Trade Receivables under
Ind AS; (d) a peek at an international reporting practice – Viability
Reporting
, and (e) an extract from a regulator’s speech from the past.

 

1. KEY RECENT UPDATES


PCAOB: Audits involving
crypto assets


On 26th May,
2020, the Public Company Accounting Oversight Board (PCAOB) issued a document, Audits
Involving Crypto Assets – Information for Auditors and Audit Committees
,
based on its observation that crypto assets have recently begun to be recorded
and disclosed in issuers’ financial statements and were material in certain
instances. The document highlights considerations (at the firm level and at the
engagement level) for addressing certain responsibilities under PCAOB standards
for auditors of issuers transacting in, or holding, crypto assets. It also
suggests related questions that Audit Committees may consider asking their
auditors.

 

IAASB: Auditing Simple and Complex Accounting Estimates


On 29th May,
2020, the International Auditing and Assurance Standards Board (IAASB) released
ISA 540 (R) Implementation: Illustrative Examples for Auditing Simple and
Complex Accounting Estimates,
a non-authoritative pronouncement that
provides examples of (i) provision on inventory impairment, and (ii) provision
on PPE impairment designed to illustrate how an auditor could address certain
requirements of the ISA for auditing simple and complex accounting estimates.

 

FRC: Covid-19 – Going
Concern, Risk and Viability


On 12th June,
2020, the UK Financial Reporting Council (FRC) released a report titled Covid-19
– Going Concern, Risk and Viability
acknowledging that many parts of
the annual report may be impacted by the pandemic. The report highlights the
impact on three key areas of disclosure, viz., (i) going concern, (ii) risk reporting,
and (iii) the viability statement. It considers each of these areas and
highlights some of the key considerations for reporting entities and also
provides examples of current disclosure practices.

 

IASB: Business Combinations under Common Control


On
29th June, 2020, the International Accounting Standards Board (IASB)
issued an update – Combinations of Businesses Under Common Control – One
Size Does Not Fit All
, that is part of its research project to fill a
gap in IFRS by improving the reporting on combinations of businesses under
common control
(companies / businesses that are ultimately
controlled by the same party before and after the combination). The update
discusses the preliminary views reached by the Board that include: the
acquisition method of accounting should be used for some combinations of
businesses under common control and a book-value method should be used for all
other such combinations.
A discussion paper is expected later this year.

 

IAASB: Covid-19 and Interim Financial Information Review
Engagements


And on 2ndJuly,
2020, the IAASB released a Staff Audit Practice Alert – Review
Engagements on Interim Financial Information in the Current Evolving
Environment Due to Covid-19.
It highlights key areas of focus in the
current environment when undertaking a review of interim financial information
in accordance with ISRE 2410, Review of Interim Financial Information
Performed by the Independent Auditor of the Entity.

 

2. RESEARCH: FUNCTIONAL CURRENCY APPROACH


Setting the Context


The functional currency
approach to accounting for foreign currency transactions and preparation of
consolidated financial statements is relatively new in the Indian context.
Functional currency is ‘the currency of the primary economic environment in
which an entity operates’
which is normally the one in which it primarily
generates and expends cash.

 

An entity (under Ind AS)
is required to determine its functional currency and for each of its foreign
operations. Such assessment, a process involving judgement, is required at
first-time adoption and on the occurrence of certain events / transactions
(e.g. acquisition of a subsidiary). Changes to the underlying operating
environment could trigger the process of evaluating if there is any change to
the functional currency.

 

The accounting approach
requires foreign currency transactions to be measured in an entity’s functional
currency. The financial statements of foreign operations are required to be
translated into the functional currency of the parent as a precursor to
on-boarding them to the consolidated financial statements.

 

In the following sections,
an attempt is made to address the following questions: Is the functional
currency approach new in the global financial reporting arena? What have been
the related historical developments and the approaches adopted by global
standard setters? What are the principles that underpin them? What is the
current position under prominent GAAPs?

 

The Position under
Prominent GAAPs

USGAAP


The Financial Accounting
Standards Board (FASB) issued SFAS 52, Foreign Currency Translation, in
1981. This standard replaced SFAS 81 and introduced the concept of
‘functional currency’ providing guidance for its determination with certain
underlying principles that included:

 

(a) when an entity’s operations
are relatively self-contained and integrated within a particular country, the
functional currency generally would be the currency of that country
, and

(b) the entity-specific
functional currency is a matter of fact
although in certain instances the
identification may not be clear and management judgement is required to
determine the functional currency based on an assessment of economic facts and
circumstances.

 

SFAS 52 was designed to
provide information generally compatible with the expected economic effects
of exchange rate changes
on an entity’s cash flows and equity, and to
reflect in consolidated financial statements the financial results and
relationships
of the individual consolidated entities as measured in their
functional currencies. The FASB opined that the process of translating the
functional currency to the reporting currency, if the two are different, for
the purposes of preparing consolidated financial statements should retain
the financial results and relationships
that were created in the
economic environment
of the foreign operations.


__________________________________________________________________________________________________________________________________________________

1    SFAS
8, Accounting for the Translation of Foreign Currency Transactions and Foreign
Currency Financial Statements (issued 1975) introduced the concept of a
reporting currency. Prior USGAAP pronouncements had dealt only with the
accounting topic of ‘translation of foreign currency statements’ and not with
‘foreign currency’

 

The existing USGAAP ASC
830, Foreign Currency Matters (SFAS 52 codified) requires the following
economic factors to be considered individually and collectively in determining
the functional currency: cash flow indicators, sales price indicators, sales market
indicators, expense indicators, financing indicators and intra-entity
transactions and arrangements
indicators.

 

IFRS


IAS 21, The Effects of
Changes in
Foreign Exchange Rates, issued in 1993 was based on a
‘reporting currency’ concept (the currency used in presenting financial
statements). A related interpretation, SIC-192 elaborated two
related notions, viz., the ‘measurement currency’ (the currency in which items in
financial statements are measured), and the ‘presentation currency’ (the
currency in which financial statements are presented).

 

The SIC-19 guidance was
perceived to lay emphasis on the currency in which transactions were
denominated rather than on the underlying economy determining the pricing of
transactions. Some stakeholders were of the view that it permitted entities to
choose one of several currencies or an inappropriate currency as its functional
currency.

 

IAS 21 was revised in 2003
(effective 1st January, 2005) and replaced the notion of ‘reporting
currency’ with ‘functional currency’ and ‘presentation currency’. It defined
‘functional currency’ as the currency of the primary economic environment in
which an entity operates
, and the ‘presentation currency’ as the
currency in which financial statements are presented.

 

In the determination of
the functional currency, the primary indicators to be considered are: (a) the
currency that mainly influences its sales pricing, (b) the currency of the
country whose competitive forces and regulations mainly determine its selling prices,
and (c) the currency that mainly influences its cost structure. Secondary
indicators (not linked to the primary economic environment but that provide
additional supporting evidence) to consider are: (i) the currency in which
funds from financing activities are generated, and (ii) the currency in which
operating receipts are usually retained.


__________________________________________________________________________________________________________________________________________________

2    SIC-19,
Reporting Currency – Measurement and Presentation of Financial Statements
under IAS 21 and IAS 29
(issued in 2000)

 

When the above indicators
provide mixed results with no functional currency being obvious, then the
management is required to apply its judgement. The guiding principle in
such determination is that such judgement should faithfully represent the
economic effects
of the underlying transactions, events and conditions.

 

AS

AS 11, The Effects
of Changes in Foreign Exchange Rates
defines the reporting currency and does
not adopt the functional currency approach. The standard does not specify the
currency in which an entity presents its financial statements although it
states that an entity normally uses the currency of its country of domicile. It
may be noted that the reporting currency is rule-based under the Companies Act.

 

The translation of
financial statements of foreign operations is principles-based under AS 11 and
is extracted below.

 

(a) Integral foreign
operations
(Business carried on as if it were an
extension of the reporting entity’s operations).

A change in the exchange
rate between the reporting currency and the currency in the country of foreign
operation has an almost immediate effect on the reporting enterprise’s cash
flow from operations. Therefore, the change in the exchange rate affects the
individual monetary items held by the foreign operation rather than the
reporting enterprise’s net investment in that operation
(AS 11.18).

 

(b) Non-integral foreign
operations
(Business carried on with sufficient degree
of autonomy).

When there is a change in
the exchange rate between the reporting currency and the local currency, there
is little or no direct effect on the present and future cash flows from
operations of either the non-integral foreign operation or the reporting
enterprise. The change in the exchange rate affects the reporting enterprise’s net
investment in the non-integral foreign operation rather than the individual
monetary and non-monetary items held by the non-integral foreign operation
(AS 11.19).

 

Snapshot of Position under
Prominent GAAPs


A snapshot of the position
under prominent GAAPs is provided in Table A.

 

                                     Table A

Accounting framework

Foreign currency approach

Standard

USGAAP

Functional Currency

ASC 830, Foreign Currency Matters

IFRS

Functional Currency

IAS 21, The Effects of Changes in Foreign Exchange
Rates

Ind AS

Functional Currency

Ind AS 21, The Effects of Changes in Foreign
Exchange Rates

AS

Reporting Currency

AS 11, The Effects of Changes in Foreign Exchange
Rates

IFRS for SMEs

Functional Currency

Section 30 – Foreign Currency Translation

US FRF for SMEs3

Reporting Currency

Chapter 31, Foreign Currency Translation

 

 

 

 

 

Case Study


In 2010, the US SEC noted
that the subsidiaries of Deswell Industries (US listed entity) changed their
functional currency and accordingly required it to provide a comprehensive
analysis regarding the appropriateness of the change. Extracts from the
Company’s response4 (correspondence available in the public domain)
is provided below:

 

Through our subsidiaries,
we conduct business in two principal operating segments: plastic injection
moulding and electronic products assembling and metallic parts manufacturing.
Two Macao subsidiaries function as our sales arms, marketing products to,
contracting with, and ultimately selling to, our end customers located
throughout the world, principally original equipment manufacturers, or OEMs,
and contract manufacturers to which OEMs outsource manufacturing. Our Macao
sales subsidiaries subcontract all manufacturing activities to our subsidiaries
in the PRC.


__________________________________________________________________________________________________________________________________________________

3    AICPA’s
– Financial Reporting Framework (FRF) for SMEs, a special purpose framework
that is a self-contained financial reporting framework not based on USGAAP

4    https://www.sec.gov/Archives/edgar/data/946936/000095012310006168/filename1.htm

 

Catalyst for change in functional currency to US$: In the fourth quarter of fiscal 2009, we experienced a
significant increase in the proportion of sales orders from customers in US$.
Such increase, which we considered a material change from our historical
experience, was the stimulus that caused us to assess whether our then use of
HK$ and RMB as our functional currencies remained appropriate.

 

Criteria used in assessment: In making our assessment, we reviewed the salient economic factors set
forth in SFAS 52.

 

Conclusion to change our functional currency: Having reviewed the above economic factors individually
and collectively, and giving what our management believes is the appropriate
weight to, among other things, the increases in, and predominance of, US$
denominated sales, our reliance on US$ sales generated by our Macao sales
subsidiaries to fund the PRC operations and the transfers of excess funds as
dividend payments to the ultimate parent; and
albeit of less influence, the lower percentage of total costs and
expenses in RMB for the PRC operations, our management concluded that the
currency of the primary economic environment in which we operate is the US$ and
that the US$ is the most appropriate to use as our functional currency.

 

In Conclusion


The functional currency
approach originated in USGAAP (effective 1982), IAS followed suit in 2005
coinciding with the EU’s adoption of IFRS, and made its entry in India under
the Ind AS framework from April, 2015.

 

The functional currency
approach lays emphasis on the underlying economic environment and not on the
home currency. Management judgement is involved in the process of determination.
Since there is no free choice, the leeway with management to decide the
measurement currency in order to influence the accounting exchange gains /
losses in P&L is removed.

 

The underlying principles
are the same under both USGAAP and IFRS, albeit the determining
indicators differ. Ind AS is aligned with IFRS in this accounting area. The
IFRS for SMEs framework follows the functional currency approach.

 

The reporting currency
concept prevails under the AS framework (previous version of IAS 21) and the
USFRF framework. These are simplified accounting approaches not based on
underlying economics. It may be noted that the AS framework is mandatory for
applicable companies in India while the USFRF for SMEs is non-mandatory.

 

At present, global
standard setters do not have any stated plans to modify / improve the
functional currency approach. While the underlying principle is robust, more
guidance on applying management judgement cannot be ruled out in the future
considering the complexity, diversity, digitisation of cross-border operations
and structuring strategies of global corporates.

 

3. GLOBAL ANNUAL REPORT EXTRACTS: ‘VIABILITY STATEMENT’


Background


The UK Corporate
Governance Code
(applicable to companies with a premium listing) published
by the FRC requires the inclusion of a Viability Statement in the Annual
Report
and was first made applicable in 2015. This reporting obligation
cast on the Board is in addition to the Statements on Going Concern
and is contained in Provision 31 of the 2018 Code (extracted below):

 

31. Taking account of the
company’s current position and principal risks, the board should explain in the
annual report how it has assessed the prospects of the company, over what period
it has done so and why it considers that period to be appropriate. The board
should state whether it has a reasonable expectation that the company will be
able to continue in operation and meet its liabilities as they fall due over
the period of their assessment, drawing attention to any qualifications or
assumptions as necessary.

 

Extracts from an Annual Report:

Company: Experian PLC
(Member of FTSE 100 Index, YE 31st March, 2020 Revenues – US$ 5.2
Billion)

 

Extracts from Board’s Strategic Report:

In conducting our
viability assessment, we have focused on a three-year timeline because we
believe our three-year financial planning process provides the most robust
basis of reviewing the outlook for our business beyond the current financial
year.

 

Although all principal
risks have the potential to affect future performance, only certain scenarios
are considered likely to have the potential to threaten our overall viability
as a business. We have quantified the financial impact of these ‘severe but
plausible’ scenarios and considered them alongside our projected maximum cash
capacity over a three-year cash period.

 

The most likely scenarios
tested included:

  •  The loss or
    inappropriate use of data or systems, leading to serious reputational and brand
    damage, legal penalties and class action litigation.
  •  Adverse and
    unpredictable financial markets or fiscal developments in one or more of our
    major countries of operation, resulting in significant economic deterioration,
    currency weakness or restriction. For this we assessed the possible range of
    outcomes, beyond our base case, due to the Covid-19 pandemic.
  • New legislation or
    changes in regulatory enforcement, changing how we operate our business.

 

Our viability scenario
assumptions incorporate a significant shock to GDP in FY21, with no immediate
rebound and a slow recovery over a two-to-three-year period in order to
adequately assess viability.

 

Viability
Statement

Based on their assessment
of prospects and viability, the directors confirm that they have a
reasonable expectation
that the Group will be able to continue in
operation
and meet its liabilities as they fall due over the
three-year period
ending 31st March, 2023. Looking further
forward, the directors have considered whether they are aware of any
specific relevant factors beyond the three-year horizon that would threaten the
long-term financial stability of the Group over a ten-year period and
have confirmed that, other than the ongoing uncertainty surrounding Covid-19,
the near-term effects of which have been considered in the analysis, they are
not aware of any.

 

4. COMPLIANCE: IMPAIRMENT OF TRADE RECEIVABLES


Background


The
provisioning for, and disclosure requirements for impairment losses on trade
receivables is governed (under the Ind AS framework) by Ind AS 109, Financial
Instruments
and Ind AS 107, Financial Instruments: Disclosures.

 

Ind AS advocates an
expected credit loss (ECL) approach and an entity applies section 5.5, Impairment
of Ind AS 109. A simplified approach applies to ECL on trade receivables that
do not contain a significant financing component. With respect to trade
receivables that contain a significant financing component, an entity can
elect, as an accounting policy choice, to account for impairment losses using
the simplified approach. The accounting and disclosure requirements w.r.t. ECL
on trade receivables are summarised in Table B.

 

          

Table B: Accounting and disclosure requirements (ECL on
trade receivables)

Ind AS Reference

Accounting requirements

Ind AS 9.5.5.15

• An entity is always required to measure ECL at
lifetime ECL for trade receivables that do not contain a significant
financing component
(or when practical expedient applied as per Ind AS
115.63)

Practical expedients available:

• An entity can use practical expedients in measuring
ECL as long as they are consistent with principles laid down by Ind AS
9.5.5.17.

• An example of a practical expedient is the ‘ECL
Provision Matrix’
that uses historical loss experience as the base
starting point. The matrix might specify fixed provision rates depending on
the age buckets of trade receivables that are past due

• Appropriate groupings need to be used if
historical loss experience is different for different customer segments
(e.g., geographical region, product type, customer rating, type of customer,
etc.)

(9.B5.5.35)

9.5.5.17

• The
measurement of ECL requires the following to be reflected, viz. (a) unbiased
and probability-weighted amounts, (b) time value of money, and (c) reasonable
and supportable information about past events, present conditions and
forecasts of future economic conditions

Disclosure requirements

Ind AS 7.35F

Disclosures
of credit risk management practices:


Explanation of credit risk management practices and how they relate to
recognition and measurement of ECL


Entity’s definitions of default, including reasons for selecting those
definitions

• How
the assets were grouped if ECL is measured on a collective basis


Entity’s write-off policy

7.35G

• Explanation of basis of inputs, assumptions and
estimation techniques
used to measure ECL

• Explanation of how forward-looking information has
been incorporated in determining ECL

• Changes, if any, in estimation techniques or
significant assumptions during the period and the reasons for change

7.35H

• Statement reconciling from
the opening balance to closing balance of the loss allowance, in a tabular
format

7. 35L

• Disclosure of contractual amount outstanding that has
been written off during the reporting period and is still subject to
enforcement activity

7.35M & 7.35N

• Credit risk exposure data to enable users to assess
the entity’s credit risk exposure and understand its significant credit
risk concentration
. This information may be based on a provision matrix

7.29

• Disclosure of fair value not required when carrying amount approximates fair value
(e.g. short-term trade receivables)

 

5. FROM THE PAST – ‘THE PROFESSION WILL GET THE STANDARDS
IT DESERVES’


Extracts from a speech by Sir
David Tweedie
(former Chairman, IASB) to the Empire Club of Canada,
Toronto in April, 2008 related to developing financial reporting
standards
are reproduced below:

 

‘It
is harder to defeat a well-crafted principle than a specific rule which
financial engineers can by-pass. A principle followed by an example can
defeat the “tell me where it says I can’t do this mentality”.
If the
example is a rule then the financial engineers can soon structure a way round
it. For example, if the rule is that, if A, B and C happens, the answer is X,
the experts would restructure the transaction so that it involved events B, C
and D and would then claim that the transaction was not covered by the
standard.

 

A principle-based standard
relies on judgements. Disclosure of the choices made and the rationale for these
choices would be essential. If in doubt about how to deal with a particular
issue, preparers and auditors should relate back to the core principles.

 

Of course, the viability of a principles-based system
depends largely on its implementation
by preparers and auditors.
Ultimately, the profession will get the standards it deserves.’

 

 

REGULATORY REFERENCER

DIRECT TAX

 

1.
Notifications bearing Nos. 68, 70 and 80 of 2019 issued under clause (v) of the
proviso to section 194N of the Income-tax Act, 1961 prior to its
amendment by the Finance Act, 2020 shall be deemed to be issued under the
fourth proviso to section 194N as amended by the Finance Act, 2020. [Circular
No. 14/2020 dated 20th July, 2020.]

 

2. Income-tax
(17th Amendment) Rules, 2020 – Rule 31AA amended.
It notifies amendments in
TCS statement being Form 27EQ. [Notification No. 54 of 2020 dated 24th
July, 2020.]

 

3. Income-tax
(18th Amendment) Rules, 2020 – Rule 12CB amended. It notifies amendments
in the procedure of filing of statement of income paid or credited by an
investment fund
to its unit holders as well as in Form 64C and 64D. [Notification
No. 55 of 2020 dated 28th July, 2020.]

 

4. All those
whose original due date for filing returns was 31st July, 2020 have
to pay self-assessment tax by 31st July, 2020. Interest u/s 234A
will not be charged if senior citizens pay part of the tax payable for A.Y.
2020-21 by 31st July, 2020 and balance tax payable does not exceed
Rs. 1 lakh. Self-assessment tax paid by senior citizens before 31st
July, 2020 will be deemed to be advance tax paid for the purpose of levy of
interest u/s 234. [Notification No. 56 of 2020 dated 29th July,
2020.]

 

5. Introduction of Faceless assessment
scheme.
[Notification Nos. 60 and 61 of 2020 dated 13th
August, 2020.]

 

COMPANY LAW

 

I.
COMPANIES ACT, 2013

 

(I) MCA’s relief on delivery of notice to
shareholders extended for listed companies, for rights issues opening up to 31st
December, 2020 –
In case of listed companies which
comply with the relevant circulars issued by SEBI, inability to dispatch the
relevant notice to shareholders through registered post or speed post or
courier would not be viewed as violation of section 62(2) of the Companies Act,
2013 for rights issues opening up to 31st December, 2020.
Other requirements provided in the said General Circular 21/2020 dated 11th
May, 2020 remain unchanged. [General Circular No. 27/2020 (F. No.
2/4/2020-CL-V); Dated 3rd August, 2020.]

 

(II) Application for extension of AGM by companies
whose Financial Year ended on 31st March, 2020 –
MCA has clarified that companies whose Financial Year ended on 31st
March, 2020
and who cannot hold their AGM by 30th September,
2020
[even with relaxations granted vide Circular No. 20/2020 dated
5th May, 2020 to conduct AGMs via Other Audio Visual Means (OAVM)],
need to apply in Form GNL-1 to jurisdictional Registrar on or before 29th
September, 2020
to seek extension of time (for a maximum period of three
months)
for holding the same. The Registrar of Companies has been advised
to consider the applications made by companies liberally. [General Circular
No. 28/2020 (F. No. 2/4/2020-CL-V); Dated 17th August, 2020.]

 

(III) The Institute of Company Secretaries of
India Centre for Corporate Governance, Research and Training (ICSI-CCGRT) –
Under its research initiatives, it has
launched a series on Companies Act Checklists Chapter-wise. Till date Checklists
on Chapter II, Chapter VI and Chapter X are launched and the same are available
on the link https://www.icsi.edu/ccgrt/research-initiatives-2/

 

II. SEBI

 

(IV) SEBI
clarifies that investors with physical securities are allowed to tender shares
in buybacks, open offers and delisting of securities –
SEBI has clarified that shareholders holding securities in physical
form are allowed to tender shares in open offers, buy-backs through tender
offer route and exit offers in case of voluntary or compulsory delisting and
the restriction under Regulation 40(1) of LODR Regulations shall not apply. [Circular
SEBI/HO/CFD/CMD1/CIR/P/2020/144 dated 31st July, 2020.]

 

(V) SEBI
allows extension on use of digital signature certifications for authentication
/ certification of filings / submissions made to Stock Exchanges till 31st
December, 2020 –
SEBI has permitted listed entities
to authenticate / certify any filing / submission made to stock exchanges on or
after 1st July, 2020 under the LODR Regulations, using digital
signature certificates (DSCs) till 31st December, 2020. Earlier,
SEBI had permitted the same until 30th June, 2020 vide its
circular dated 17th April, 2020. [Circular
SEBI/HO/CFD/CMD1/CIR/P/2020/145 dated 31st July, 2020.]

 

(VI) Every
listed entity shall maintain public shareholding within a period of three years
instead two years –
Now, every listed company which
has public shareholding below 25% on the commencement of the Securities
Contracts (Regulation) (Second Amendment) Rules, 2018, shall increase its
public shareholding to at least 25% within a period of three years from
the date of such commencement, in the manner specified by SEBI. [Notification
G.S.R. 485(E) (F. No. 5/35/CM/2006 Volume- III); dated 31st July,
2020.]

 

(VII)
RESOURCES FOR TRUSTEES OF MUTUAL FUNDS –
Trustees
shall appoint a dedicated officer having professional qualifications and a
minimum five years of experience in finance and financial services related
field.
The officer so appointed shall be an employee of the Trustees and
directly report to them. [Circular SEBI/ HO/IMD/DF4/CIR/P/2020/0000000151
dated 10th August, 2020.]

 

ACCOUNTS AND AUDIT

 

(A)
Companies (Indian Accounting Standards) Amendment Rules, 2020 –
Amended standards / topics: (i) Ind AS 103: Definition of a Business,
Optional test to identify concentration of Fair Value, Elements of a Business,
and Assessing whether an acquired process is substantive;
(ii) Ind AS 107: Uncertainty
arising from interest rate benchmark reform;
(iii) Ind AS 109: Temporary
exceptions from applying specific hedge accounting requirements;
(iv) Ind
AS 116: Covid-19-related rent concession for lessees; (v) Ind AS 1, 8,
10 and 34: Materiality; and (vi) Ind AS 37: Restructuring. [MCA
Notification dated 24th July, 2020.]

 

(B)
Implementation of Ind AS by NBFCs and ARCs –

Unrealised gain / loss on a derivative transaction undertaken for hedging may
be offset against the unrealised loss / gain recognised in capital (either
through P&L or OCI) on the corresponding underlying hedged instrument for
the purposes of computation of regulatory capital and regulatory ratios. [RBI
Notification No. RBI/2020-21/15 dated 24th July, 2020.]

 

(C)
Timeline for submission of financial results by listed entities (under
Regulation 33 of the LODR Regulations) for the quarter / half year / financial
year ended 30th June, 2020 –
extended
from 14th August to 15th September, 2020. [SEBI
Circular No. SEBI/HO/CFD/CMD1/CIR/P/2020/140 dated 29th July, 2020.]

 

(D) Review
Engagements on Interim Financial Information in the Current Evolving
Environment Due to Covid-19 –
ICAI’s Guidance
highlighting key areas of focus in the current environment when undertaking a
review of interim financial information in accordance with SRE 2410. [ICAI’s
Auditing Guidance dated 7th August, 2020.]

 

FEMA

 

(i) FEMA was
earlier regulated and administered by RBI including with respect to capital
account transactions covered u/s 6. However, with effect from 15th
October, 2019 this power was shifted to the Central Government for non-debt
capital account transactions including those covered for FDI under the Non-Debt
Instruments (NDI) Rules. Each change in these rules or introduction of an
instruction or circular required a notification by the Ministry of Finance.
This created delays. Further, Master Directions issued by RBI became
inoperative. Now, the powers have again been shifted back from the Central
Government to the RBI, though partly. RBI has now been empowered to:

(a) Administer the NDI Rules and, while
administering them, it may interpret and issue such directions, circulars,
instructions and clarifications as it may deem necessary.

(b) Permit investment into India by a person
resident outside India; or permit an Indian entity prescribed under the NDI
Rules to receive investment without the requirement of a consultation with the
Central Government as was needed previously.

 

(ii)
Sectoral caps and conditions for FDI in the sector of Air Transport Services
as covered in Serial No. 9.3 and Other Conditions as prescribed in
Serial No. 9.5 for the Civil Aviation sector under Schedule I to the NDI Rules
have been amended. The position in the NDI Rules has now been brought in line
with the changes made in the FDI policy as amended by Press Note 2 of 2020
dated 19th March, 2020. The important changes are:

(a) The benefit to OCIs to invest up to 100% under
the automatic route is now removed. Only NRIs are allowed this benefit.

(b) Further, investment by NRIs up to 100% has been
allowed in M/s Air India Limited.

(c) Foreign airlines are at present allowed to
invest in Indian companies operating scheduled and non-scheduled air transport
services up to a limit of 49% under the Government approval route. It has now
been clarified that this limit will subsume FDI and FII / FPI investment.

(d) Reference to Aircraft Rules, 1937 have been
made where necessary.

[Notification
No. S.O. 2442 (E) dated 27th July, 2020 – F. No. 01/05/EM/2019.]

 

ICAI MATERIAL

 

  •  MSME
    Business Continuity Checklist: Rebooting MSMEs in the Covid-19 Era –
    Checklist that focuses on factors requiring special attention by
    MSME managements to guide their initiative to face the ongoing tough times. [25th
    July, 2020.]

 

  •  FAQs on
    the SEBI Settlement Scheme, 2020 –
    ICAI’s FAQ
    Publication on the One-Time Settlement Scheme issued by SEBI on 27th
    July, 2020. [30th July, 2020.]

 

  •  Relaxations from Regulatory Compliances Due to Outbreak of Covid-19 Pandemic – Publication that collates various relaxations provided by MCA and
    SEBI. [10th August, 2020.]

 

  •  Guidance
    Note on Report u/s 92E of the Income Tax Act, 1961 (Transfer Pricing) –
    Revised edition based on the law as amended by the Finance Act,
    2020. [20th August, 2020.]

 

RIGHT TO INFORMATION (r2i)

Part
A I Decisions of Supreme Court

The information to be
gained access to / certified copies on the judicial side to be acquired through
the machinery provided under the High Court Rules, the requirements of the RTI
Act shall not be available1

 

Case name:

Chief Information Commissioner vs. High Court of
Gujarat and another

Citation:

Civil Appeal No(s). 1966-1967 of 2020 [Arising out of
SLP(C) No. 5840 of 2015]

Court:

The Supreme Court of India

Bench:

Justice R. Banumathi

Decided on:

4th March, 2020

Relevant Act/ Sections:

Gujarat High Court Rules, 1993 – Rule 149 – 154

Right to Information Act, 2005 – Sections 2(f), 2(h),
2(i), 2(j), 4(2), 6(2), 8(1), 19, 22, 28

Articles 124, 145, 216, 225 of Indian Constitution

 

 

Brief facts
and procedural history


An RTI application dated 5th
April, 2010 was filed seeking information pertaining to certain civil
applications made along with all relevant documents and certified copies. In
reply, the Public Information Officer, Gujarat High Court, informed that for
obtaining required copies one should make an application personally or through
one’s advocate by affixing court stamp fees of Rs. 3 with the requisite fee to
the ‘Deputy Registrar’; since the applicant was not a party to the said
proceedings, as per Rule 151 of the Gujarat High Court Rules, 1993 the
application should be accompanied by an affidavit stating the grounds for which
the certified copies are required and on making such application, one will be
supplied the certified copies of the documents as per Rules 149 to 154 of the
Gujarat High Court Rules, 1993.

 

Being aggrieved, the RTI
applicant preferred an appeal before the Appellate Authority-Registrar
Administration. The appeal was dismissed on the ground that for obtaining
certified copies the alternative effectual remedy is already available under
the Gujarat High Court Rules, 1993.

 

A second appeal was filed
before the Appellant-Chief Information Commissioner. The respondent reiterated
the position on the High Court Rules but was ordered to provide the information
within 20 days.

 

Challenging the order of
the Chief Information Commissioner, a special civil application was filed
before the High Court by the respondent. The learned Single Judge, while
admitting the petition, passed an interim order directing the respondent to provide
the information sought within four weeks.

 

Being aggrieved by the
interim order, the High Court preferred Letters Patent Appeal before the
Division Bench. This Bench set aside the order of the Chief Information
Commissioner by observing that when a copy is demanded by any person, the same
has to be in accordance with the Rules of the High Court on the subject.

 

The Chief Information
Commissioner, aggrieved by the order of the Division Bench, preferred an appeal
to the Hon’ble Supreme Court of India.

 

Issues before
the Court


Whether Rule 151 of the
Gujarat High Court Rules, 1993 stipulating that for providing a copy of
documents to third parties they are required to file an affidavit stating the
reasons for seeking certified copies, suffers from any inconsistency with the
provisions of the RTI Act?

 

When there are two types
of machinery to provide information / certified copies – one under the High
Court Rules and another under the RTI Act – in the absence of any inconsistency
in the High Court Rules, whether the provisions of the RTI Act can be resorted
to for obtaining certified copies / information?

 

Ratio Decidendi


(i) Grant of certified
copies to parties to the litigation and third parties are governed by Rules 149
to 154 of the Gujarat High Court Rules, 1993. As per these Rules, on filing of
an application with prescribed court fees, stamps, litigants / parties to the
proceedings are entitled to receive the copies of documents / orders /
judgments, etc. The third parties who are not parties in any of the
proceedings, shall not be given the copies of judgments and other documents
without the order of the Assistant Registrar. As per Rule 151 of the Gujarat
High Court Rules, the applications requesting for copies of documents /
judgments made by third parties shall be accompanied by an affidavit stating
the grounds for which they are required. Therefore, the access to the
information or certified copies of the documents / judgments / orders / court
proceedings are not denied to the third parties but a procedure needs to be
followed by the applicant. Hence, the Rules framed by the Gujarat High Court
are in consonance with the provisions of the RTI Act. There is no inconsistency
between the provisions of the RTI Act and the Rules framed by the High Court in
exercise of the object of the RTI Act which itself recognises the powers under
Article 225 of the Constitution of India.

 

(ii) There is a need to
protect the institutional interest and also to make optimum use of limited
fiscal resources and preservation of confidentiality of sensitive information.
The procedure to obtain certified copies under the High Court Rules is not
cumbersome and is very simple. The information held by the High Court on the
judicial side is the ‘personal information’ of the litigants like title cases
and family court matters, etc. Under the guise of seeking information under the
RTI Act, the process of the Court is not to be abused and information not to be
misused.

 

(iii) If any information
can be accessed through the mechanism provided under another statute, then the
provisions of the RTI Act cannot be resorted to as there is absence of the very
basis for invoking the provisions of the RTI Act, namely, lack of transparency.
In other words, the provisions of the RTI Act are not to be resorted to if the
same are not actuated to achieve transparency.

 

(iv) The non-obstante clause of the RTI Act does
not mean an implied repeal of the High Court Rules and Orders framed under
Article 225 of the Constitution of India, but only has an overriding effect in
case of inconsistency. A special enactment or rule cannot be held to be
overridden by a later general enactment simply because the latter opens up with
a non-obstante clause, unless there is clear inconsistency between the
two legislations.

 

Part
B I Right to Information

 

PM CARES Fund – The ‘gorilla’ in the
room


By now we are
aware that the Appellate Authority of the Prime Minister’s Office (PMO) has
held that the Prime Minister’s Citizen Assistance and Relief in Emergency Situations
Fund (PM CARES Fund) is not a public authority under the Right to Information
Act, 2005 (RTI Act). Moreover, the funds from the trust will not be transferred
to the National Disaster Response Fund (NDRF) and the fund will not be audited
by the Comptroller and Auditor-General of India, as ruled by the Supreme Court
of India. Yet, there are many questions raised and striving for answers.

 

To start with, the Prime Minister of India
is the Chairman ex-officio of the Prime Minister National Relief Fund
(PMNRF) as well as the PM CARES Fund, constituted to already have the trappings
of a public trust, the NDRF established thereunder, occupying the arena to deal
with disaster situations, then what was the need to constitute the new PM-CARES
Fund?

 

Given the federal ideologies of our
Constitution, in case of predicaments like these the amounts collected should
be deposited in the PMNRF and from there transferred to the state governments
for meeting the challenges of the pandemic and saving people’s lives.

 

A sum of Rs. 6,500 crores was collected by
the PM CARES Fund in just one week and Rs. 3,076.62 crores in four days from
the registration of the trust. This was donated by renowned philanthropists of
our country, well-known tycoons and others. Mr. Mukesh Ambani donated Rs. 500
crores and many others like Mr. Aamir Khan, Mr. Shah Rukh Khan and many more
celebrities came forward and donated to the fund.

 

The PM CARES
Fund was integrated as a ‘public charitable trust’ with the specified objective
of ‘dealing with any kind of public health crisis or other distress
circumstances, like the Covid-19 pandemic’, ‘to provide financial aid to those
affected by it’ and ‘to perform any other activity not varying with the above
two objectives’. The official website of PM CARES2 provides the
following details:

 

(a) The PM is the ex-officio Chairman
and the Minister of Home Affairs, Minister of Finance and the Minister of
Defence are its ex-officio trustees and the PM would nominate three
eminent persons to the Board.

 

(b) It receives voluntary contributions,
with Rs. 10 being the least allowable amount of support, with no budgetary
outlay.

 

(c) Foreign individuals and organisations
can contribute to a separate account exempt from the application of the Foreign
Contribution (Regulation) Act, 2010.

 

(d) Contributions made can be apportioned
towards the mandatory 2% Corporate Social Responsibility (‘CSR’) expenditure
and shall be allowed as 100% deduction to calculate taxable income for the year
2019-2020,
provided that the contribution is made before 30th
June, 20203. However, contributions flowing out of budgetary sources
of the PSUs are not accepted.

 

(e) The Fund is administered on an honorary
basis by a Joint Secretary (Administration) in the PMO as Secretary to the Fund
who is assisted on an honorary basis by an Officer of the rank of Director /
Deputy Secretary (Administration) in the PMO. The Prime Minister’s Office
provides such administrative and secretarial support to the trustees for the
management and administration of the Trust as may be required by them.

 

(f) The Fund is exempted from paying
income tax
as per section 10(23)(c) of the Income-tax Act, 1961.

 

(g) The PM CARES Fund has been allotted a
Permanent Account Number (PAN) AAETP3993P.

 

(h) The Fund is audited by an independent
auditor
. The trustees of the Fund, during the second meeting held on 23rd
April, 2020 decided to appoint M/s SARC & Associates, Chartered
Accountants, New Delhi as the auditors of the PM CARES Fund for three years.

 

(i) There is no statutory period
prescribed for audit
of the PM CARES Fund under the Income-tax Act.
However, audit will be conducted at the end of the financial year.

 

Keeping in mind the larger picture of
transparency, the PM CARES Fund should come under the purview of the Right to
Information Act, 2005. Likewise, technical reasons like the fund being set up
by the government by using government machinery to promote it and usage of
gov.in as domain name, providing tax reliefs, etc. needs to be considered.
There are multiple pleas in the High Courts and the Supreme Court of India
requesting to bring the PM CARES Fund under the purview of the RTI Act, 2005
and also asking to transfer the funds from the Trust to the NDRF, which have
been dismissed by the respective courts.

 

 

 

Part
C I Information on and Around

 

.

(1)
Appointment of architect for Balasaheb Thackeray Memorial not made by MMRDA but
a trust

 

In reply to
the RTI application filed by a Mumbai-based RTI activist, Mr. Anil Galgali, the
Mumbai Metropolitan Region Development Authority (MMRDA), the nodal agency for
the construction of the memorial of the late Balasaheb Thackeray which will be
built at Shivaji Park in Dadar, mentioned the procedure of selection of the
architect. The Thackeray Memorial had issued a tender notice directing MMRDA to
appoint a distinguished architect. But the Chairman of the Memorial held a
meeting on 14th May, 2020 wherein architects and project advisers
were selected. MMRDA being the nodal agency for the project and also because of
the taxpayer’s money being involved, should have appointed the consultant and
the architect. But in this case a private trust did it all without inviting any
tender.
4

 

(2) Only 44% State Information
Commissions conduct hearings in July, 2020


The functioning of the State Information
Commissions (SICs) has fallen from 80% in June to 44% in July. This was
observed in a study conducted by the Commonwealth Human Rights Initiative
(CHRI). The study was carried out by contacting each of the 28 SICs across the
country by phone and emails and by following their websites. The first survey
(in April) found that none of the SICs was working, but during the second
survey (in May) 12 SICs had opened their offices. However, only eight were
conducting hearings. According to its third rapid telephonic survey, the
organisation found the SICs that had started attending to litigants in June had
stopped by July.5

 

(3) Bank of Maharashtra writes off Rs.
7,400 crores in the last four years owed by loan defaulters


The Bank of Maharashtra, a public
sector bank, has ‘technically written off’ an astounding Rs. 7,400 crores
unsettled by loan defaulters in the last four years. The bank has said that it
would recover the amount at a later stage and that it has not been waived
permanently. The recovery rate of such defaults is low and it takes a huge
amount of time. According to information provided by the bank, from 2011 to 2020 it
has written off a total of Rs. 7,400 crores6.

 

______________________________________________________________________________________________

1    Chief Information Commissioner vs. High
Court of Gujarat and another available at
https://main.sci.gov.in/supremecourt/2015/4228/4228_2015_5_1501_21164_Judgement_04-Mar-2020.pdf
visited on 18.08.2020

2    https://www.pmindia.gov.in/en/about-pm-cares-fund/

3    http://egazette.nic.in/WriteReadData/2020/218979.pdf

4    https://www.timesnownews.com/mumbai/article/who-appointed-architect-for-balasaheb-thackeray-memorial-mmrda-or-trust/638697

5   https://www.hindustantimes.com/india-news/only-44-state-information-commissions-conduct-hearings-chri-survey/story-tMT6otWRcVxyeC0nM7jCNN.html

6    https://indianexpress.com/article/cities/mumbai/bank-of-maharashtra-writes-off-rs-7000-cr-owed-by-loan-defaulters-6557765/

 

We live in a country where:

Driving without a license = fine of Rs. 2000,

Not having a PUC = fine of Rs. 1000,

Not wearing a mask outside = fine of Rs. 1000,

Insulting the Supreme Court = fine Rs. 1

  social media post on the recent decision by
the SC

CORPORATE LAW CORNER

10. P. Suresh vs. Super Foodis Pvt. Ltd. IBA/541/2019 – NCLT Chennai Date of order: 20th December,
2019

 

Section 7 read with section 1(d) of the
Insolvency and Bankruptcy Code, 2016 – A franchise agreement that is disputed
before a High Court could not be regarded as a financial contract – Any claim
for insolvency on account on unpaid royalty under such a contract could not be
proceeded with

 

FACTS


Mr. P (‘Financial Creditor’) entered into a
franchise agreement with S Co (‘Corporate Debtor’) to run a vegetarian
restaurant for a period of three years from 12th August, 2016 to 11th
August, 2019. The agreement stipulated the use of brand name, quality standards
for the operations of the restaurant and 5% running royalty on the gross sale
value to the financial creditor. In the meantime, in January, 2018, the
management of the corporate debtor was changed and it was alleged that the
financial creditor was promised by the new management that they will discharge
the loan liability, if any, due from the corporate debtor and subsequently the
new management took over on 1st March, 2019. It was submitted that
there was a loan liability of Rs. 29,95,461 due to the corporate debtor on 31st
March, 2018.

 

With regard to the provisions of the
franchise agreement, the financial creditor alleged that there was a sum of Rs.
33,24,962 which was payable to him. On 19th December, 2018 the
financial creditor terminated the franchise agreement and sought for removal of
the sign board and surrender of all articles bearing the trademark ‘Sangeethas
Desi Mane’; but in spite of the said notice the corporate debtor continued to
use the trademark. The financial creditor filed a suit for infringement of
registered trademark which was pending before the High Court of Madras.

 

The entire claim of the financial creditor
was based on the alleged entry in the financial statements of the corporate
debtor which is also a subject matter of dispute in the case referred to above.

 

It was submitted by the corporate debtor
that the validity of the franchise agreement and entries in the balance sheet
were all a subject matter of dispute before the High Court. The High Court vide
order dated 18th July, 2018 had held that issues under dispute are
questions of fact which will have to be proved on trial. The corporate debtor
thus submitted that the subject issue as regards the payment of the unsecured
loan and the default was in itself an issue before the High Court.

 

HELD


The Tribunal
heard both the parties at length. It examined the provisions of sections 7 and
1(d) of the Code read with Rule 4 of IBBI (Application to Adjudicating
Authority) Rules, 2016 and Regulation 8 of IBBI (Insolvency Resolution Process
for Corporate Persons) Regulations, 2016. It was observed that the financial
creditor had to demonstrate before the Tribunal that there was a ‘financial
contract’, the amount disbursed as per the loan / debt, the tenure of the loan
/ debt, interest payable and conditions of repayment.

 

Relying on the
decision in the matter of Prayag Polytech Pvt. Ltd. vs. Sivalik
Enterprises Pvt. Ltd. IB-312/(ND)/2019
, it was observed that in order
to invoke provisions of section 7 of the Code and for initiation of CIRP
against the corporate debtor, the following conditions were required to be
satisfied: (i) there must be a disbursal of loan; (ii) disbursal should be made
against consideration for time value of money; and (iii) default should have
arisen in payment of interest or in payment of principal, or both, on part of
the corporate debtor. All the above conditions were required to be satisfied by
the financial creditor.

 

The Tribunal observed that in the absence
of a ‘financial contract’ it was not possible to ascertain the actual amount of
disbursal. There was no financial contract except the franchise agreement which
did not state the consideration for time value of money being granted to the
corporate debtor. Assuming there was a disbursal, the default had arisen in
absence of a financial instrument specifying unambiguously the term of the
financial debt within which it is repayable. In any case, the entire agreement
was in dispute before the High Court.

 

Thus, the Tribunal held
that default could not be ascertained in the absence of a requisite document
and the application was dismissed.

 

11. Tony Joseph vs. Union of India [2020] 117 taxmann.com 948 (Kerala) Date of order: 10th July, 2020

 

The disqualified directors
of the company did not intend to continue – Since the directors were
disqualified, their DIN and DSC were deactivated – Directors urged that their
DIN and DSC be activated so as to enable them to file returns and make
statutory uploadings of form STK-2 so as to enable a ‘strike off’ of name of
company – It was held that directors should approach ROC for activation of DIN
and DSC and ROC should pass appropriate orders

 

FACTS


The directors of the
company were disqualified for the reason that the company did not file annual
returns in time. Accordingly, their DIN and DSC have been deactivated taking
recourse to the provisions u/s 164(2) of the Companies Act, 2013.

 

The directors submitted
that they do not intend to continue with the company. However, it was urged
that they seek to file the returns and make statutory uploadings so as to
enable a ‘strike off’ of the company. They therefore sought to upload form
STK-2 to enable ‘strike off’ of the company from the Registrar of Companies.

 

HELD


It was
noticed by the Court that the directors have not produced any request made by
them before the ROC in this behalf. In case the directors approach ROC seeking
an activation of the DIN and DSC for the purpose of uploading form STK-2, the
ROC shall take up the application and pass appropriate orders in accordance
with the law on the same within a period of two weeks from its receipt.

ALLIED LAWS

25. Hindu
Succession Act, 1956, section 6 – Hindu Succession (Amendment) Act, 2005 –
Equal right of a daughter in HUF – Devolution of interest in coparcenary property
– Confers status of coparcener on daughters, even if born prior to the
amendment, with effect from 9th September, 2005 – And it is not
necessary that the father should be living as on 9th September, 2005
– Amendment is retrospective

 

Vineeta Sharma vs. Rakesh Sharma & Ors. Diary No. 32601 of 2018 (SC) Date of order: 11th August, 2020 Bench: Arun Mishra J., S. Abdul Naseer J.,
M.R. Shah J.

 

FACTS


Several appeals on the issue of
retrospective effect of section 6 of the Hindu Succession Act were filed before
the Supreme Court. In one of the cases, Vineeta Sharma (appellant) filed a case
against her two brothers, viz., Rakesh Sharma and Satyendra Sharma, and her
mother (respondents). The father, Dev Dutt Sharma, had three sons, one daughter
and a wife. He expired on 11th December, 1999. One of his sons
(unmarried) expired on 1st July, 2001. The appellant claimed that
being the daughter she was entitled to 1/4th share in the property
of her father. The case of the respondents was that after her marriage she
ceased to be a member of the joint family. The High Court disposed of the
appeal as the amendments of 2005 did not benefit the appellant because her
father had passed away on 11th December, 1999.

 

HELD


The Supreme Court held that the provisions
contained in substituted section 6 of the Hindu Succession Act, 1956 confer the
status of coparcener on the daughter born before or after the amendment, in the
same manner as a son, with the same rights and liabilities. Since the right in
coparcenary is by birth, it is not necessary that the father should be living
as on 9th September, 2005 (the date of the amendment).

 

26. Indian
Evidence Act, 1872, section 65B – Evidence – Electronic record – Certificate
u/s 65B(4) – Not necessary that original document itself is produced

 

Arjun Panditrao Khotkar vs. Kailash
Kushanrao Gorantyal and Ors.
CA No. 20825-20826 of 2017 (SC) Date of order: 14th July, 2020 Bench: V. Ramasubramanian J., R.F. Nariman
J., S. Ravindra Bhat J.

 

FACTS


Two election petitions were filed by the present
respondents before the Bombay High Court challenging the election of the
present appellant, Arjun Panditrao Khotkar, to the Maharashtra State
Legislative Assembly for the term commencing November, 2014. The case revolved
around the four sets of nomination papers filed by the appellant. It was the
case of the present respondents that each set of nomination papers suffered
from defects of a substantial nature and, therefore, all four sets of
nomination papers having been improperly accepted by the Returning Officer of
the Election Commission, the election of the appellant be declared void. In
particular, the respondents contended that the late presentation of nomination
forms (filed by the RC after the stipulated time of 3.00 p.m. on 27th
September, 2014), meant that such nomination forms were not filed in accordance
with the law and ought to have been rejected.

 

The respondents sought to rely upon the
video camera arrangements that were made both inside and outside the office of
the Returning Officer (RO). According to the respondents, the nomination papers
were only offered at 3.53 p.m. (i.e. beyond 3.00 p.m.), as a result of which it
was clear that they had been filed after time. A specific complaint making this
objection was submitted by Kailash Kushanrao Gorantyal before the RO at 11 am
on 28th September, 2014 in which it was requested that the RO reject
the nomination forms that had been improperly accepted. This request was
rejected by the RO on the same day, stating that the nomination forms had, in
fact, been filed within time. The High Court, by its order dated 16th March, 2016, ordered the Election Commission and the
officers concerned to produce the entire record of the election of the constituency, including the original video
recordings. A specific order was made that the electronic record needs to be produced along with the ‘necessary
certificates’. The Court held that the CDs that were produced by the Election Commission could not be
treated as an original record and would, therefore, have to be proved by means
of secondary evidence. It was also found that no written certificate as
required by section 65B(4) of the Evidence Act was furnished by any of the
election officials.

 

HELD


The Supreme Court held that a certificate
u/s 65B(4) is unnecessary if the original document itself is produced. This can
be done by the owner of a laptop computer, computer tablet or even a mobile
phone, by stepping into the witness box and proving that the device concerned,
on which the original information is first stored, is owned and / or operated
by him.

 

27. Foreign
Exchange Regulation Act (FERA), 1973, sections 8, 51, 68 — Liability for
offence — Role played in company affairs — Not designation or status

 

Shailendra
Swarup vs. The Deputy Director, Enforcement
CA No. 2463 of 2014 (SC) Date of order: 27th July, 2020 Bench: Ashok Bhushan J., R. Subhash Reddy
J., M.R. Shah J.

 

FACTS


Modi Xerox Ltd. (MXL) was a company
registered under the Companies Act, 1956 in 1983. Between 12th June,
1985 and 21st November, 1985, 20 remittances were made by the
company through its banker Standard Chartered Bank. The Reserve Bank of India
issued a letter stating that despite reminders issued by the authorised dealer,
MXL had not submitted the Exchange Control copy of the customs bills of Entry /
Postal Wrappers as evidence of import of goods into India. The Enforcement
Directorate wrote to MXL in 1991-1993 for supplying invoices as well as
purchase orders. MXL on
9th July, 1993 provided the documents for four transactions and
Chartered Accountant’s Certificates for balance 16 amounts for which MXL’s
bankers were unable to trace old records dating back to 1985. MXL amalgamated
and merged into Xerox Modicorp Ltd. (hereinafter referred to as “XMC”) on 10th
January, 2000. A show cause notice dated 19th February, 2001 was issued by the Deputy Director, Enforcement Directorate to MXL and its
directors, including the appellant. The notice required to show cause in
writing as to why adjudication proceedings as contemplated in section 51 of
FERA should not be held against them. The Directorate of Enforcement decided to
hold proceedings as contemplated in section 51 of the FERA, 1973 read with
sub-sections 3 and 4 of section 49 of FEMA and fixed 22nd October,
2003 for personal hearing. A notice dated 8th October, 2003 was sent
to MXL and its directors.

 

In reply the appellant stated that he is a
practising advocate of the Supreme Court and was only a part-time,
non-executive director of MXL and he was never in the employment of the company
nor had any executive role in its functions. It was further stated that the
appellant was never in charge of, nor ever responsible for, the conduct of the
business of the company. The Deputy Director, Enforcement Directorate, after
hearing the appellant and other directors of the company, passed an order dated
31st March, 2004 imposing a penalty of Rs. 1,00,000 on the appellant
for contravention of section 8(3) read with 8(4) and section 68 of FERA, 1973.

 

The appellant approached the Appellate
Tribunal for foreign exchange but his appeal was dismissed on 26th March, 2008. A criminal appeal was filed by the appellant in
the Delhi High Court but by the impugned judgment dated 18th
October, 2009 it dismissed the appeal of the appellant.

 

HELD


The Supreme Court held that for proceeding
against a director of a company for contravention of provisions of FERA, 1973
the necessary ingredient for proceeding shall be that at the time the offence
was committed, the director was in charge of and was responsible to the company
for the conduct of its business. The liability to be proceeded with for an
offence u/s 68 of FERA, 1973 depends on the role one plays in the affairs of
the company and not on mere designation or status.

 

Editor’s Note: FERA, 1973 has been substituted with FEMA, 1999. Section 51 of
FERA, 1973 is similar to section 13(1) of FEMA, 1999.

 

28. Constitution
of India, Articles 226, 300A – High Courts bound to issue Writ of Mandamus –
For enforcement of public duties – Right to property is a fundamental right and
human right

 

Hare Krishna Mandir Trust vs. State of Maharashtra
& Ors.
CA No. 6156 of 2013 (SC) Date of order: 7th August, 2020 Bench: Indu Malhotra J., Indira Banerjee J.

 

FACTS


The Thorat family was the owner of a plot at
Bhamburda in Pune. By a registered deed of conveyance dated 21st
December, 1956, one Krishnabai Gopal Rao Thorat sold the northern part of the
plot jointly to Swami Dilip Kumar Roy, one of the most eminent disciples of Sri
Aurobindo, and Indira Devi, daughter-disciple of Swami Dilip Kumar Roy. Swami
Dilip Kumar Roy had moved to Pune to propagate the philosophy of Sri Aurobindo
and established the Hare Krishna Mandir with his daughter disciple, Indira
Devi, on the land purchased from Krishnabai Gopal Rao Thorat.

 

According to the appellants, the Pune
Municipal Corporation, by an order dated 20th August, 1970, divided
Plot No. 473 which was originally numbered Survey No. 1092. The final plot No.
473 B was sub-divided into four plots. On 20th August, 1970 the City
Survey Officer directed issuance of separate property cards in view of a
proposed Development Scheme under the Regional and Town Planning Act which
included Final Plot No. 473, and an Arbitrator was appointed. The Arbitrator
made an award dated 16th May, 1972 directing that the area and
ownership of the plots were to be as per entries in the property register. The
appellant contended that the Pune Municipal Corporation by its letters dated 29th
June, 1996, 4th January, 1997 and 18th January, 1997
admitted that the internal road had never been acquired by the Pune Municipal
Corporation. The Town and Planning Department also admitted that the Pune
Municipal Corporation had wrongly been shown to be the owner of the said road.

 

The Urban Development Department rejected
the proposal of the appellant and held that the Pune Municipal Corporation is
the owner of the land. The Hon’ble High Court dismissed the Writ Petition
challenging the said order and refused to issue a Writ of Mandamus.

 

HELD


The Supreme
Court held that the right to property may not be a fundamental right any
longer, but it is still a Constitutional right under Article 300A and a human
right. In view of the mandate of Article 300A of the Constitution of India, no
person is to be deprived of his property save by the authority of law. The High
Courts, exercising their jurisdiction under Article 226 of the Constitution,
not only have the power to issue a Writ of Mandamus or in the nature of
Mandamus, but they are duty-bound to exercise such power where the Government
or a public authority has failed to exercise or has wrongly exercised
discretion conferred upon it by a statute, or a rule, or a policy decision of
the Government, or has exercised such discretion mala fide or on
irrelevant consideration. The High Court is not deprived of its jurisdiction to
entertain a petition under Article 226 merely because in considering the
petitioner’s right to relief questions of fact may fall to be determined.
Exercise of the jurisdiction is discretionary, but the discretion must be
exercised on sound judicial principles.

 

 

 

 

 

 

 

 

We must never ever give up, or give in or throw in the
towel. We must continue to press on! And be prepared to do what we can to help
educate people, to motivate people, to inspire people to stay engaged, to stay
involved and to not lose their sense of hope. We must continue to say we’re one
people. We’re one family. We all live in the same house. Not just an American
house but the world house. As Dr. King said over and over again, ‘We must learn
to live together as brothers and sisters.
If not, we will perish as fools.

  John
Lewis,
8th June, 2020, New York Interview (civil rights giant,
17-term Congressman, an ally of MLK. He
passed away in July, 2020)

GOODS AND SERVICES TAX (GST)

I.    HIGH COURT

 

39. [(2020)-TIOL-1273-HC-AHM-GST] VKC Footsteps India Pvt. Ltd vs. Union of India Date of order: 24th July, 2020

 

Rule 89(5) of the Central
Goods and Services Tax Rules, 2017 providing that for the purpose of refund on
account of Inverted Duty Structure, credit of input services is not allowable
is held ultra vires to section 54(3) of the Act which provides for
refund of ‘any’ unutilised input tax credit

 

FACTS


The petitioner is engaged
in the business of manufacture and supply of footwear which attracts GST @5%
and the majority of the inputs and input services procured by them attract GST
@12% or 18%. In spite of utilisation of credit for payment of GST on outward
supply, there is an accumulation of unutilised credit in the electronic credit
ledger. The respondents are allowing refund of accumulated credit of tax paid
on inputs such as synthetic leather, PU polyol, etc., but refund of accumulated
credit of tax paid on procurement of ‘input services’ such as job work service,
goods transport agency service, etc., is being denied. The petitioners have,
therefore, challenged the validity of amended Rule 89(5) of the CGST Rules,
2017 to the extent that it denies refund of input tax credit (ITC) relatable to
input services.

 

HELD


The Court noted that Rule
89(5) of the Rules, and more particularly the Explanation (a) thereof, provides
that Net ITC shall mean ?input tax credit’ availed on ‘inputs’ during the
relevant period other than the ‘input tax credit’ availed for which refund is
claimed under sub-rule (4A) or (4B), or both. Therefore, ‘input tax credit’ on
‘input services’ is not eligible for calculation of the amount of refund by
applying Rule 89(5). This results in violation of provisions of sub-section 3
of section 54 of the CGST Act, 2017 which entitles any registered person to
claim refund of ‘any’ unutilised ITC. Section 7 of the Act provides that ‘scope
of supply’ includes all forms of supply of goods or services, therefore, for
the purpose of calculation of refund of accumulated ‘input tax credit’ of
‘input services’ and ‘capital goods’ arising on account of inverted duty
structure is not included in ‘inputs’ which is explained by the Circular
79/53/2018-GST dated 31st December, 2018 wherein it is stated that
the intent of law is not to allow refund of tax paid on ‘input services’ as
part of unutilised ‘input tax credit’.

 

The Court in this
reference noted the decision of the Delhi High Court in the case of Intercontinental
Consultants & Technocrats P. Ltd., 2012-TIOL-966-HC-DEL-ST
which
holds that the rule which goes beyond the statute is ultra vires and
thus liable to be struck down. From the conjoint reading of the provisions of
the Act and the Rules, it appears that by prescribing the formula in sub-rule 5
of Rule 89 of the CGST Rules, 2017, to exclude refund of tax paid on ‘input
services’ as part of the refund of unutilised ITC is contrary to the provisions
of sub-section 3 of section 54 of the Act which provides for claim of refund of
‘any unutilised input tax credit’. The word ‘input tax credit’ is defined in
section 2(63) of the Act, meaning the credit of input tax and the word ‘input
tax’ is defined in section 2(62) as the central tax, state tax, integrated tax
or union territory tax charged on any supply of goods or services, or both made
to a registered person, whereas the word ‘input’ defined in section 2(59) means
any goods other than capital goods and ‘input service’ as per section 2(60)
means any service used or intended to be used by a supplier. Thus ‘input’ and
‘input service’ are both part of the ‘input tax’ and ‘input tax credit’.

 

Therefore, as per the
provisions of sub-section 3 of section 54 of the Act, 2017, the Legislature has
provided that registered person may claim refund of ‘any unutilised input tax’;
therefore, by way of Rule 89(5) of the Rules, such claim of the refund cannot
be restricted only to ‘input’ excluding the ‘input services’ from the purview
of ‘input tax credit’. Explanation (a) to Rule 89(5) which denies refund of
‘unutilised input tax’ paid on ‘input services’ as part of the ‘input tax
credit’ accumulated on account of inverted duty structure is ultra vires
the provisions of section 54(3) of the Act. Net ITC should mean ‘input tax
credit’ availed on ‘inputs’ and ‘input services’ as defined under the Act.

 

The respondents are
directed to allow the claim of the refund made by the petitioners considering
the unutilised ITC of ‘input services’ as part of the ‘net input tax credit’
for the purpose of calculation of the refund of the claim as per Rule 89(5) of
the Rules for claiming refund under sub-section 3 of section 54 of the Act.

 

40. [(2020) 7 TMI 611 (Delhi High Court)] Jian International vs. Commissioner of DGST W.P.(C) 4205/2020 Date of order: 22nd July, 2020

 

Refund application is
presumed to be complete in case deficiency memo not issued within 15 days’
limit

 

FACTS


The petitioner’s refund
application was not processed nor was any acknowledgment or any deficiency memo
issued within the timeline of 15 days. The petition is filed seeking a
direction to grant refund along with interest. It was stated that the refund
application would be presumed to be complete in all respects in accordance with
the rules as the period of 15 days for issuing deficiency memo had lapsed. The
respondent wanted to issue a deficiency memo as certain documents had not been
uploaded with the refund application.

 

HELD


The Court held that the
respondent had lost the right to point out any deficiency in the refund
application at this belated stage and directed it to pay refund along with
interest within two weeks. The Court was of the view that allowing issuance of
deficiency memo beyond the timeline would delay the petitioner’s right to seek
refund and also impair the right to claim interest from the date of filing of
the initial application.

 

41. [(2020) 7 TMI 24 (Gujarat High Court)] Mahavir Enterprise vs. ACST Special Civil Application No. 7613 of 2020 Date of order: 22nd June, 2020

 

Rule 142(1)(a) of the CGST
Rules, sections 122(1) and 164 of the CGST Act are valid and in no manner in
conflict with any of the provisions of the Act

 

FACTS


A show cause notice was
issued to the applicant u/s 122(1) of the Act for bogus billing transactions
without any physical movement of goods. The applicant submitted that section
122 of the Act does not contemplate issue of any show cause notice. However,
under Rule 142(1)(a) summary notice needs to be issued electronically along
with the notice issued u/s 122. Thus, the rule travelled beyond the provisions
of the Act, and being in excessive delegation, stands ultra vires.
According to the applicant, section 74 contemplates show cause notice for the
purpose of determination of the tax liability.

 

HELD


The Hon’ble Court held
that section 164 of the Act confers power on the Central Government to frame
the rules. Under the said section, the Central Government has the power to make
rules generally to carry out all or any of the purposes of the Act. Thus, Rule
142(1)(a) stands valid and is in no manner in conflict with any of the
provisions of the Act.

 

42. [(2020) 8 TMI 11 (Gujarat High Court)] Material Recycling Association of India vs. UOI 13238 of 2018 Date of order: 24th July, 2020

 

Service provided by an
intermediary in India cannot be treated as ‘export of services’ u/s 13(8) of
the Integrated Goods and Services Tax Act, 2017

 

 

FACTS


The petitioner was an
association of the recycling industry engaged in manufacture of metals and
casting, etc. for various upstream industries in India. It acted as an agent
for scrap and recycling companies based outside India, engaged in providing
business promotion and marketing services for principals located outside India.
The members also facilitated sale of recycled scrap goods for their foreign
principals in India and other countries. They received commission upon receipt
of sale proceeds in convertible foreign exchange. They raised invoices upon
their foreign clients for such commission received by them. Thus, according to
them, the transactions entered into were export of service from India. The
constitutional validity of section 13(8)(b) of the Integrated Goods and
Services Tax Act, 2017 was challenged under Articles 14, 19, 265 and 286 of the
Constitution of India.

 

HELD


The Court, after analysing
the statutory provisions of place of supply, intermediary and export of
service, held that the provision of section 13(8)(b) was not ultra vires
and unconstitutional. The basic logic or inception of section 13(8)(b)
considering the location of the intermediary as the place of supply was in
order to levy CGST and SGST and such intermediary service, therefore, would be
out of the purview of the IGST. There was no distinction between the
intermediary services provided by a person in India or outside India. The said
service would not qualify as export of service only because the invoice was
raised on the person outside India and foreign exchange was received. A similar
situation was present in the service tax regime and as such the situation
continued in the GST regime also.

 

43. [(2020) 118 taxmann.com 53 (Kerala)] State of Kerala vs. Metso Minerals India (P) Ltd. Date of order: 19th June, 2020

 

If under a contract to
perform a works contract, the material required in the execution of works is
sourced from outside the state and was taxed in the state from which the
purchase was made, the state in which the works contract is executed would not
have authority to tax the same and it would amount to an interstate works
contract

 

FACTS


The assessee entered into
a contract with an entity for delivery and erection of a three-stage
Nordwheeler plant. The materials for the plant were sourced from Singapore and
Calcutta (i.e., from outside Kerala), which were brought into the state in a
knocked-down condition and erected at the site of the client. The Department
held that the transfer of goods having occurred at the time of the accretion of
the goods in the works, is a works contract to be taxable within the state of
Kerala. Such transfer has occurred within the state on the accretion of the
goods in the works and it was found to be taxable within the state of Kerala.
The first appellate authority rejected the appeal filed by the assessee. The
Tribunal reversed the orders of the lower authority, finding the same to be an
interstate works contract.

 

HELD


The Hon’ble High Court
noted that the goods were all sourced from outside the state and suffered tax
on interstate movement, where the purchases were made from Calcutta; and for
those materials imported from Singapore, the movement after it was cleared from
the port is exempted from tax. It, therefore, held that the works contract
executed by the assessee is an interstate works contract and the state of
Kerala cannot levy a tax on the transfer of goods in the form of goods or in
any other form by accretion of such goods in the works, merely for the reason
that the plant was erected within the state. The Court relied upon the decision
in the case of Siemens Ltd. vs. State of Kerala and another [(2001) 122
STC 1]
in which the Court, referring to the authoritative
pronouncements of the Hon’ble Supreme Court, read down the provision in the
Kerala General Sales Tax Act, 1963 which made the transfer of goods as goods or
in any other form involved in the execution of a works contract taking place
within the state taxable. If the goods are within the state at the time of such
transfer, irrespective of the place where the agreement was executed or the
contract being prior or subsequent to such transfer, the Court in that case
held that the situs of the goods just prior to its accretion in the
works, has absolutely no relevance in deciding the taxability when the goods
used in the works contract were sourced from outside the state or imported into
the country.

 

Note: This case is
relevant under VAT/CST regime.

 

 

44. [(2020) 118 taxmann.com 59 (ECJ)] Vodafone Portugal – Comunicações Pessoais SA vs. Autoridade Tributária e Aduaneira

 

The amounts received by an
economic operator in the event of early termination for reasons specific to the
customer of a services contract requiring compliance with a tie-in period in
exchange for granting that customer advantageous commercial conditions, must be
considered to constitute the remuneration for supply of services for consideration
within the meaning of Article 2(1)(c) of the VAT Directive

 

FACTS


Vodafone (the assessee)
concludes with its customers services contracts, some of which include special
promotions subject to conditions that tie those customers in for a
predetermined minimum period (the tie-in period). Under those terms and
conditions, customers commit to maintaining a contractual relationship with
Vodafone and to using the goods and services supplied by that company for the
tie-in period, in exchange for benefiting from advantageous commercial
conditions, usually related to the price payable for the contracted services.
The tie-in period may vary according to those services and its purpose is to
enable them to recover some of the investment on equipment and infrastructure
and on other costs, such as the costs related to service activation and the
award of special benefits to customers. Failure by customers to comply with the
tie-in period for reasons attributable to themselves results in them paying the
amounts provided for in the contracts. Those amounts seek to deter such
customers from failing to comply with the tie-in period. The issue involved
before the Court was whether the charges collected for early termination of the
contract would be regarded as consideration for service so as to attract VAT
when the operator no longer supplies services to the customer.

 

HELD


A supply of services is
carried out ‘for consideration’ only if there is a legal relationship between
the provider of the service and the recipient pursuant to which there is
reciprocal performance and the remuneration received by the provider of the
service constituting the actual consideration for an identifiable service
supplied to the recipient. That is the case if there is a direct link between
the service supplied and the consideration received. It was noted that in this
case the amounts at issue are calculated according to a contractually defined
formula, in compliance with the conditions laid down under national law
according to which those amounts cannot exceed the costs incurred by the
service provider in the context of the operation of those services (e.g.
investment linked to its global infrastructure networks, equipment and
installations), the acquisition of customers (commercial and marketing
campaigns and the payment of commission to associated undertakings), the
activation of the contracted service, the award of benefits by way of discounts
or free services and costs necessary to the installation and purchase of
equipment, etc., and it must be proportionate to the benefit granted to the
customer, that benefit having been identified and quantified as such in the contract
concluded with that provider.

 

In that context, those
amounts reflect the recovery of some of the costs associated with the supply of
the services which that operator has provided to those customers and which the
latter committed to reimbursing in the event of such a termination. The Court,
therefore, held that those amounts must be considered to represent part of the
cost of the service which the provider committed to supplying to its customers,
that part having been reabsorbed within the monthly instalments, where the
tie-in period is completed and recovered separately where the tie-in period is
not complied with by those customers. Therefore, from the perspective of
economic reality, which constitutes a fundamental criterion for the application
of the common system of VAT, the amount due upon the early termination of the
contract seeks to guarantee the operator a minimum contractual remuneration for
the service provided. The Court, therefore, held that when an operator
determines the price for its service and monthly instalments having regard to
the costs of that service and the minimum contractual commitment period, the
amount payable in the event of early termination must be considered an integral
part of the price which the customer committed to paying for the provider to
fulfil its contractual obligations and liable to VAT.

 

Note: Readers may note
that although this case is not under the Goods and Services Tax Act, the
principles discussed in this case are relevant in determining the tax
implications on payments recovered by the service provider in early termination
of the contract

 

 

 

 

 

II. AUTHORITY FOR ADVANCE RULING

 

45. [2020-TIOL-210-AAR-GST] M/s Navneeth Kumar Talla Date of order: 29th June, 2020

 

A contractor supplying
food to hospital not being a clinical establishment is not considered as health
care services and therefore is taxable

 

FACTS


The applicant is engaged
in supplying food and beverages at the canteen of his customers. The applicant
himself does not get paid by the consumers for the food and beverages. The
recipients of the services are hospitals who enter into a contract with the
applicant. The charges are accordingly received from the hospitals. The
question before the Authority is whether food supplied to hospitals is liable to
GST and, if yes, what is the rate of tax.

 

HELD


The Authority noted that
exemption is allowed only on supply of food by a clinical establishment to the
in-patients, being a part of health care services. The exemption is not
available when such supply is made by a person other than a clinical
establishment. Therefore, GST is payable on supply of the services by the
applicant to hospitals and no exemption is provided in respect of the same.
Supply of food to hospitals by the applicant depends on the time period (during
which it is supplied) and will be subjected to tax as per the provisions of
Notification No. 11/2017-Central Tax/State Tax (Rate) [Entry No. (ii) of S. No.
7] – For the period from 1st July, 2017 to 26th July,
2018 – 18% (CGST 9% + SGST 9%) and for the period from 27th July,
2018 onwards – 5% (CGST 2.5% + SGST 5%) provided that credit of input tax
charged on goods and services used in supplying the service has not been taken.

 

46. [2020-TIOL-209-AAR-GST] Prasa Infocom and Power Solutions Pvt. Ltd. Date of order: 18th March, 2020

 

Where the value of goods
and services is separately identified, the value of civil work is insignificant
and some items sold are easily replaceable, the contract cannot be termed as a
works contract

 

FACTS


M/s Cray Inc. has entered
into a contract with Indian Institute of Tropical Meteorology for supply of
high performance computing solutions (including its maintenance) and
preparation and maintenance of a data centre. M/s Cray has sub-contracted the
portion related to preparation of the data centre (including its maintenance)
to the applicant vide a contract. The applicant is engaged in the
business of providing data centre construction and contracting services, which
includes civil and mechanical work, supply and installation of other ancillary
equipment necessary in a civil structure, namely, UPS and batteries, fire alarm
system, chillers, air conditioners, surveillance systems, etc. The activities
are undertaken to set up the data centre as a whole which cannot be shifted to
another location without first dismantling and then re-erecting it at any other
site. The question before the Authority is whether the said supply of goods and
services qualifies as ‘works contract’ as defined u/s 2(119) of the Act.

 

HELD


The Authority noted that
from the contract it is seen that the costing of goods and services are shown
separately and the major value of the contract exceeding 85% of the total cost
of the project is pertaining to supply of goods. These goods are sold to the
client by the applicant and they receive separate payment for such goods sold.
Without these goods, the services cannot be supplied and, therefore, the goods
and services are supplied as a combination and in conjunction with and in the
course of their business where the principal supply is supply of goods. There
is a composite supply in the instant case but there is no building,
construction, fabrication, completion, erection, installation, fitting out,
improvement, modification, repair, maintenance, renovation, alteration or
commissioning of any ‘immovable property’ wherein transfer of property in goods
is involved in the execution of the contract; therefore, there is no works
contract involved in the subject case.

 

The data centre appears to
be a space / room where the equipment / machinery / various other apparatuses
are installed. The value of civil construction shown is insignificant as
compared to the value of goods / services. On perusal of the copy of the
agreement / document submitted it reveals that the value of goods / equipment
is clearly distinct and separate from the value of services; therefore, their
project / work is not classifiable under a works contract. Further, from the
list of goods and services, it is seen that some items are in the nature of
machine / instruments / equipment and are all replaceable and hence cannot be
said to be ‘immovable’ in nature. Therefore, the contract cannot be classified
as a works contract.

 

47. [(2020) 7 TMI 140 (AAR, West Bengal)] IZ Kartex 04/WBAAR/2020-21 Date of order: 29th June, 2020

 

Supply of service by a
local branch of a foreign entity is not import of service. Reverse charge not
applicable

 

FACTS


The applicant was a local
branch of a foreign business entity. They were involved in supply of maintenance
and repair service to Indian customers for machinery and equipment supplied by
the foreign entity. They submitted that the foreign entity provides the
maintenance and repair services under a specific maintenance and repair
contract to customers in India and they were providing the said service on
behalf of the foreign entity. The Indian customers were importing the service
from the foreign entity and thus should be liable for tax under reverse charge.

 

HELD


The Authority looked at
the specific clauses in the contract and stated that to perform the services as
specified it was important to train the employees of the Indian customers for
which it may have to depute staff at the premises of the Indian customer. It is
also important to ensure that timely delivery of spares, etc., was being made
at the premises of the Indian customers. The applicant, being the registered
branch of the foreign entity, should be treated as a fixed establishment as per
section 2(7) of the Integrated Goods and Services Tax Act, 2017. Therefore, the
location of the supplier was in India. Hence, the transaction is not an import
of service but a supply of service by the applicant and accordingly tax is
payable under forward charge.

 

48. [(2020) 7 TMI 353 (AAR, Rajasthan)] Hazari Bagh Builders Pvt. Ltd. RAJ/AAR/2020-21/05

Date of order: 30th June, 2020

 

Amount paid which is
refundable in case of breach of conditions to such contract shall not be
considered as security deposit and shall be taxable under GST

 

FACTS


A lease agreement was
entered into between the applicant company, i.e., the lessee, and the Rail Land
Development Authority (RLDA) for a period of 99 years. The applicant had paid a
certain amount after the bid was confirmed but before the execution of the
lease contract. As per the agreement, the contract would stand terminated on
breach of conditions and the bid security paid by the company would stand
forfeited and the amount otherwise paid was fully refundable. The applicant
stated that the amount which was paid without even executing the agreement
could not be construed to be a premium paid for such lease agreement. The
amount so paid was only to secure and confirm the execution of the contract.
Thus such amount shall not be chargeable under GST as it was in the form of
security and not advance or lease premium. Further, relying upon Notification
No. 12/2017-Central Tax (Rate) dated 28th June, 2017 and No.
04/2019-Central Tax (Rate) dated 29th March, 2019, the impugned
amount paid was exempted under GST.

 

HELD


The Authority rejected the
applicant’s contention on the ground that every agreement is de novo in
itself and conditions may vary from each other, except the conceptual facts and
principles. It stated that security of the contract was ensured when the letter
of acceptance was signed. It was also observed that the RLDA being the
statutory authority of the Government of India is providing services by way of
renting of immovable property to a registered person and renting of immovable
property includes leasing. Thus, the applicant was liable to pay GST under
reverse charge mechanism. The Authority held that exemption under Notification
No. 12/2017 was available only on industrial plots provided by the State
Government undertakings and the Notification No. 04/2019 was applicable for the
upfront amount payable on or after 1st April, 2019. The said case
was of sale of plot over which residential structure was to be built and the
amounts were paid before 1st April, 2019. Therefore, the transaction
is a taxable supply liable to GST.

 

 

My definition of wisdom is knowing the long-term
consequences of your actions.

  Naval Ravikant

RECENT DEVELOPMENTS IN GST

NOTIFICATIONS


(1) Government
has issued Notification No. 59/2020-Central Tax dated 13th July,
2020
and extended the
date of filing of GSTR4 (annual return for F.Y. 2019-20 by dealers who have
opted for Composition Scheme) to 31st August, 2020.

 

(2) As per Notification No. 60/2020-Central Tax
dated 30th July, 2020
, Government has made amendments in Rule 48 of CGST Rules. By this
amendment, Government has substituted ‘Form GST INV-1’. The new format / schema
for e-invoice will be applicable from 1st October, 2020 to those
dealers whose aggregate turnover was more than Rs. 500 crores during the
previous year.

 

(3) Under
Notification No. 61/2020-Central Tax dated 30th July, 2020,
Government has amended the earlier Notification No. 13/2020-Central Tax dated
21st March, 2020.
Now, by this Notification Government has prescribed that issue of
e-invoice is applicable to only those dealers whose turnover was more than Rs.
500 crores during the previous year. It is further provided that the said
provisions of e-invoicing are not applicable to a Special Economic Zone unit.

 

ADVANCE RULINGS

(A) ITC vis-a-vis Plant & Machinery

M/s Atriwal Amusement Park [Order No. 12/2020;
Dated 9th June, 2020 (MP)]

 

The issue involved availability of ITC on various items pertaining to
amusement parks. The applicant proposes to construct a water-park containing
various items like water slides, kids’ play-slides, wave pool, etc. For the
said purpose it has to use various components and services which are liable to
GST. The following questions were posed before the AAR:

 

(a) Whether they are eligible to take credit on Input Tax paid on purchase
of water slides? Water slides are made of strong PVC.

(b) Water slides are installed on a steel and civil structure. Will
credit of tax paid on input goods and services used in construction of this
support structure be available or not?

(c) Whether or not Input Tax will be available on goods and services used
for area development and preparation of land on which water slides are to be
erected?

(d) Whether the applicant will be eligible to take credit of Input Goods
and Services used for construction of swimming pool / wave pool as water slides
directly run into the pools?

 

The issues were basically in light of the provisions of section 17(5) of
the CGST Act, 2017 and the Explanation below section 17(6). As per section
17(5)(d), the ITC on inward supplies used in construction of immovable property
is blocked. However, as per the Explanation below section 17(6), ITC is allowed
on immovable properties if they are Plant & Machinery. The Explanation has
included foundation and structural support in the category of Plant &
Machinery.

 

The learned AAR noted that although the Explanation seeks to allow ITC on
foundation and structural support as Plant & Machinery, section 17(5)(d)
seeks to disallow ITC on building or any other civil structures. Analysing the
position, the AAR further observed that there seems to be an apparent
contradiction, but actually there is no such contradiction. If the foundation
and structural support is for fixing apparatus, equipment and machinery, it
will be part of Plant & Machinery. Other construction will fall in building
or any other civil structures on which ITC is not allowed.

 

In this context, the AAR also referred to the meaning of foundation in
various dictionaries. Thereafter, he referred to the main issue about the
nature of items (slides, etc.) involved and whether such items can be covered
under the category of Plant & Machinery. He also referred to various
judicial pronouncements on the meaning of ‘plant’. Though many judgments were
cited, the AAR made extensive reference to the judgment of the Supreme Court in
the case of Scientific Engineering House Pvt. Ltd. In this judgment the
Supreme Court referred to various foreign judgments also and observed that when
the meaning of ‘plant’ is not defined, the meaning should be as per popular
understanding. It further observed that the meaning is wide and it will include
any article or object fixed or movable, live or dead, used by businessmen for carrying
on their business and it is not necessarily confined to an apparatus which is
used for mechanical operations or processes, or is employed in mechanical
industrial business. Citing such wide meanings, the AAR ruled in respect of
each item as under:

 

(i) ITC in respect of Input Tax paid on purchase of water slides is
eligible as it is part of Plant & Machinery.

(ii) In respect of the steel and
civil structure on which the water slides are installed, ITC is eligible as
they are foundation and support structures which are used to fasten plant and /
or machinery to the earth and hence they are Plant & Machinery.

(iii) Similarly, foundation in respect of wave pool machines is also held
eligible to ITC as Plant & Machinery. However, the machine room which is a
civil structure is not eligible as it is neither foundation nor civil structure
for machinery.

(iv) As for Input Tax on goods and services used for area development and
preparation of land on which water slides are to be erected, the AAR held that
ITC is not eligible as they become part of land on which ITC is not allowed.

(v) Input Tax Credit (ITC) on goods and services used for construction of
swimming pools / wave pools was held ineligible as they are not support
structure or foundation of the plant. They are held as independent items per
se
.

(vi) The ITC in respect of goods and services used for the provision of
facilities like transformer, sewage treatment plant, electric wiring and
fixtures and others were held ineligible as they are not Plant & Machinery
but part of building or civil structure.

 

(B) ITC on a lift in a hotel building

M/s Jabalpur Hotels Private Limited [Order No.
10/2020; Dated 8th June, 2020 (MP)]

 

The issue was about availability of ITC on the lift installed in the
upcoming hotel building.

 

The applicant intends to construct a hotel building with 100 rooms’
capacity and wants to install a lift in the same. The inward supplies for the
lift will include its parts, components and installation services. The question
was posed in light of the provision of section 17(5)(d) of the CGST Act which
blocks credit in respect of goods and services received by taxable person for
construction of an immovable property (other than Plant & Machinery) on his
own account, including when such goods or services or both are used in the
course or furtherance of business. It was the contention of the applicant that
the lift is in the hotel and is necessary for the successful running of the
same. Therefore, the inward supplies are in the course of business. It was
further argued that even if section 17(5)(d) blocks credit for immovable
property, the ITC is eligible in respect of Plant & Machinery. It was
contended that a lift is machinery and hence it does not fall in the
restriction of 17(5) of the CGST Act.

 

The applicant cited the meaning of the words Plant & Machinery, which
include apparatus, equipment and machinery fixed to earth by foundation for
structural support, that are used for making outward supply of goods or
services. Citing a reference from Oxford, it was sought to explain that the
equipment required to operate a business is Plant & Machinery. Similarly,
the definition given in legal dictionaries like Law Lexicon was cited in
which plant is defined to mean the fixtures, machineries, etc. necessary to
carry on any trade. The applicant also cited the judgments given in relation to
CENVAT Credit. It was further contended that as per Indian Accounting Standards
the lift installations are recorded in the books of accounts under a separate
head and not under the head ‘building’.

 

The AAR made reference to the provisions of ITC in the CGST Act and
agreed with the contention of the applicant that the lift is used for business.
However, he further observed that the intent of the Legislature is clear in
that it intends to restrict ITC on any goods or services which are used in the
construction of an immovable property, even when such goods or services are
used in the course of business.

 

In respect of the
nature of the lift, the AAR observed that the lift comprises of components or
parts like lift car, motors, ropes and rails, etc., and each of them has its
own identity prior to installation and they are assembled / installed to create
the working mechanism called a lift. It further observed that the installation
of these components / parts with immense skill is rendition of service and
without installation in the building there is no lift. They are also made to
order and installed as per specifications. Therefore, they are not goods by
themselves.

 

The AAR came to the
conclusion that the lift becomes part of the building and is not a separate
building per se. The lift has no identity when removed from the
building. It cannot be sold or purchased. It is a customised mechanism for
transportation designed to suit a specific building. Piece by piece, it becomes
an integral part of the building.

 

Regarding the contention of the applicant that it is Plant &
Machinery, the AAR observed that building and civil structures are specifically
excluded from the meaning of Plant & Machinery even in the Explanation
below section 17(6). Since the lift becomes part of the building, it gets
excluded and therefore comes within the scope of section 17(5)(d). In this
respect, the AAR also made reference to the AR given by AAR Karnataka in the
case of Tarun Realtors Private Limited vide order dated 30th
September, 2019
. The AAR observed that though such other ARs have no
value as precedents, there is a lot of persuasive value. In the above case of Tarun
Realtors
also, the ITC is held ineligible on the lift.

 

In view of the above position, the AAR in the present case held that ITC
is not eligible in respect of installation of lift.

 

(C) Classification – Hand sanitizer

Springfields (India) Distilleries [AR Order
Goa/GAAR/1 of 2020-21; Dated 25th June, 2020 (Goa)]

 

The applicant has sought classification on hand sanitizer. It was the
contention of the applicant that it is medicament covered by HSN Code 30049087
hence liable to GST at 12%. The AAR noted the contention of Revenue and
compared the HSN 3004, 4301, 3402 and 3808. After analysing the above HSNs, the
AAR observed that hand sanitizer is of the category of alcohol-based products
and is classifiable under HSN 3808. He held that hand sanitizers are liable to
GST at 18%.

 

(D) Permanent Establishment

M/s IZ-Kartex named after P.G. Korobkov Ltd. [Order
No. 04/WBAAR/2020-21; Dated 29th June, 2020 (WB)]

 

The facts in this case were rather peculiar. The applicant is the local
branch of a Russian business entity by the same name (referred to as foreign
company) which has entered into a maintenance and repair contract (MARC) with
Bharat Coking Coal Limited (BCCL) with respect to the machinery and equipment
that it had supplied. The local branch which had applied for the AR, was trying
to argue that the supply of services is by a foreign company and therefore it
is import of service within the meaning of section 2(11) of the IGST Act. It
was further argued that it is the recipient, that is, BCCL, which should
discharge liabilities under RCM.

 

The AAR referred to the terms of the MARC and found that the contract has
spanned over 17 years from the date of commissioning of the equipment. The
applicant is also required to depute officers, support staff and system experts
at the site for maintenance and repair of equipment and to train the BCCL personnel.
The applicant is paid at an agreed rate for supervision, supply of spares and
consumables, etc.

 

Looking into all this, the AAR observed that the applicant maintains
suitable structures in terms of human and technical resources at the sites of
BCCL. It ensures supervision of the equipment, supply of spares and
consumables, indicating a sufficient degree of permanence to the human and
technical resources employed at the sites. Accordingly, the AAR held that the
applicant has fixed establishment as defined u/s 2(7) of the IGST Act and
therefore the location of the supplier is within India as per section 2(15) of
the IGST Act. Thus, there is no import of services but these are supplies by
the applicant located in India. Accordingly, it is liable to GST in India.

ROLE OF A STATUTORY AUDITOR VIS-À-VIS GST

INTRODUCTION


A statutory audit is conducted to elicit an
opinion as to whether the financial statements of an enterprise provide a true
and fair view in conformity with the generally accepted accounting principles /
laid down guidelines. The effect on the financial statements of various laws
and regulations varies considerably. SA 250, Consideration of Laws & Regulations
in an audit of Financial Statements, provides
guidance to the auditors on
how to identify material misstatement of financial statements due to
non-compliance of other laws. It also clarifies that the auditor cannot be
expected to detect non-compliance with all laws and regulations.

 

GST, as a transactional indirect tax law,
can have significant impact on the financial statements of an entity and
therefore appropriate compliance with the GST law is one of the important
validations that a statutory auditor has to perform before he can conclude
about the true and fair view of the financial statements. At the same time,
being a recent law with multiple interpretations and conflicting clarifications
and advance rulings, at times it can be an impossible journey for the statutory
auditor to come to an assertive judgement on the extent of compliance or
non-compliance.

 

This article highlights some examples
whereby the interplay between the statutory audit process and the GST domain
can be better appreciated.

 

DIFFERING
OBJECTIVES & FOCUS


As stated earlier, the objective of
statutory audit is to validate that the financial statements present a true and
fair view of the financial affairs of an enterprise. To that extent, the core
focus of a statutory audit (and financial accounting) is on the enterprise or
the entity. The financial statements are prepared on the basis of various
accounting policies, the disclosure whereof is governed by the provisions of
Accounting Standard 1 (AS1).

 

However, when it comes to GST, this is a
transaction-driven tax law and therefore the core focus changes to individual
transactions, whether such transactions constitute supply, whether the levy
provisions are attracted and whether there is a tax prescribed for the same.

 

GOING CONCERN


One of the fundamental accounting
assumptions is ‘going concern’. As per AS1, the enterprise is normally viewed
as a going concern, that is, as continuing in operation for the foreseeable
future. It is assumed that the enterprise has neither the intention nor the
need of liquidation or of curtailing materially the scale of its operations.

 

The GST law does not explicitly state such
an assumption; however, the same is inherent in the overall scheme except to
the extent that a person obtains a registration as a casual taxpayer – which
indicates the intention of the taxpayer to do business only for a limited time
frame. Can the absence of a normal registration and only casual taxpayer
registration prompt the statutory auditor to question this fundamental accounting
assumption as a going concern? It may be relevant to bear in mind that GST is a
state-level registration whereas the financial statements pertain to the entire
world.

 

In actual experience, entities end up with
substantial accumulation of input tax credit (ITC) under some GST
registrations. Considering another principle of conservatism, at times,
statutory auditors question the possibility of realisation of the accumulated
ITC balance and insist on writing it off on the grounds of non-recoverability
or reversal of such credits. Since the credit once legally availed is
indefeasible, without any time limit under the law and there being a fair
chance that it could be availed in future, whether it is correct on the part of
the statutory auditor to insist on writing off the accumulated ITC balance
simply due to the age of such asset while continuing to maintain that the
assumption of going concern is valid?

 

CONSISTENCY


AS1 further states that it is assumed that
accounting policies are consistent from one period to another. However, when it
comes to GST, it being a transaction-driven tax, each transaction can have
different tax implications based on the ‘form’ of the said transaction. As
explained a little later, GST concentrates on the ‘form’ of the transaction
rather than the ‘substance’. Further, the GST law at various places provides
flexibility of interpretation or positions taken by the taxpayer. For example,
Entry 2 of Schedule I is often understood to require the head office of a multi-locational
enterprise to raise a notional cross-charge invoice on its branches located in
other states. The proviso to Rule 28 permits the head office to choose
the valuation mechanism for such cross-charge as per its convenience and
prohibits the GST officers from questioning such a valuation mechanism. In the
backdrop of the said legal provisions, is it permissible for the head office to
choose different valuation principles for cross-charge to different branches?
Can the statutory auditor object to such a position on the grounds of violation
of the fundamental accounting assumption of consistency? In the view of the
authors, the notional cross-charge does not represent an accounting policy and
hence the principle of consistency may not be relevant in such a scenario.

 

ACCRUAL


AS1 further states that revenues and costs
are accrued, that is, recognised as they are earned or incurred (and not as
money is received or paid) and recorded in the financial statements of the
periods to which they relate. However, the liability towards GST is triggered
when the provisions of time of supply are attracted. In general, the time of
supply provisions get triggered at the earliest point of invoicing, completion
of service / removal of goods or the receipt of advance and therefore the
accounting concept of accrual has no relevance to the GST liability. However,
in case of import of services from an associated enterprise, the time of supply
(and consequential GST liability under reverse charge mechanism) is triggered at
the time of booking the provision in the books of accounts itself. This
presents a substantial challenge in case of multinational corporations where
the royalty payable to the foreign parent itself is determined based on the
finalisation of the revenue for the particular year. In view of the requirement
to provide for such royalties in the books of accounts at the year-end even
though the quantum of royalties itself is determined after the year-end, such
organisations end up in delay in the discharge of GST. Whether such
discharge of statutory dues due to reasons beyond the control of the taxpayer
would merit reporting under the provisions of CARO?

 

In view of the time of supply provisions
under GST, many notional entries / adjustments which find a way in the
accounting and statutory audit space have very limited relevance in the context
of GST. Having said that, at the adjudication level the assessing officers tend
to look at the financial statements as the starting point for obtaining prima
facie
comfort on the completeness of the GST compliances. This typically
results in the preparation of a reconciliation statement which attempts to
bridge the gaps between the turnover as reported in the financial statements
and the aggregate turnovers reported in multiple GST registrations obtained by
the enterprise.

 

While it may be correct as well as prudent
to undertake the reconciliation referred to above, at times the inability to
appreciate the exact interpretation and ramification of each reconciliation
adjustment results in wrong demands being raised which have to be agitated
before the judicial forums.

 

Interestingly, many notional entries /
adjustments are insisted upon by the statutory auditors at a global level at
the time of finalisation of statutory audit. In the case of multi-locational
enterprises, it may become challenging for the taxpayer to allocate the values
of such notional entries / adjustments to the respective GST registrations. In
such cases, whether it would be appropriate for the GST officers or the
statutory auditors to once again insist on the state-level split of such
notional entries / adjustments, or could the same be ignored as being
inconsequential in the GST process?

 

PRUDENCE


AS1 further recognises that an enterprise
may select accounting policies suitable to the disclosure of the over-arching
objective of presentation of a true and fair view of the financial statements
of an enterprise. While selecting accounting policies, AS1 specifies prudence
as an important consideration for the selection of an accounting policy. As
stated in AS1, in view of the uncertainty attached to future events, profits
are not anticipated but recognised only when realised, though not necessarily
in cash. Provision is 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 the available information.

 

A common example of the prudence principle
at play is that of valuation of inventories at cost or market value, whichever
is lower. However, when it comes to GST, Rule 28(a) prescribes that inventory
movements across multiple GST registrations of the same legal entity should be
carried out at market value. While the proviso to Rule 28 grants
flexibility to the taxpayer in many cases, if the recipient branch is not
eligible for full ITC, the said Rule is in stark contrast to the time-tested
accounting principle of prudence. Is the ERP of the enterprise geared up to
duly comply with the GST law (by valuing such branch transfers above cost) as
well as the accounting principles (by once again creating a provision for such
notionally inflated value of inventory)? Assuming that the enterprise has
valued such inventory movements at cost and the same is objected to neither by
the GST officers nor by the GST auditors, can the statutory auditor qualify his
report to observe this non-compliance, especially considering that accounting
wisdom would suggest exactly what the taxpayer has done?

 

Even in normal scenarios where slow-moving
inventory is valued below cost, the issue which needs to be examined is whether
such valuation below cost would trigger the provisions of section 17(5)(h)
which requires the reversal of ITC if the goods on which ITC is claimed are
written off. A possible view could be taken that there is a difference between
‘write-off’ of goods and reduction in the value of the goods on account of an
accounting policy.

 

Similarly,
when the statutory auditor insists that a refund shown as receivable in the
balance sheet be written off as being unlikely of recovery due to some dispute
with the Department, it can prejudice the claim of refund since the judiciary
may interpret non-appearance of the asset in the balance sheet as a case of
unjust enrichment. This is one more area of interplay where the statutory
auditor will need to exercise caution rather than pre-judge the situation.

 

SUBSTANCE
OVER FORM


Another consideration in the selection of an
appropriate accounting policy is the choice of substance over the form of a
transaction. It is such consideration which requires that leases be accounted
in a particular manner. In stark contrast to the accounting / auditing
preference of substance over form, the tax laws typically concentrate on the
form rather than the substance. However, the classification of goods as inputs
or capital goods depends upon the accounting treatment.

 

An interesting issue arose in the case of an
airport operator working on the BOT model. Ind-AS 115 required that the
construction cost be treated as revenue expenditure and then be taken to the
Balance Sheet as an intangible asset to be amortised over the life of the
concession. Section 17(5)(d) does not permit the ITC of construction cost if
the same is incurred for own account and is capitalised in the books of
accounts. The airport operator relied on a series of Supreme Court judgments
under the earlier excise / service tax / income tax laws and also a High Court
judgment under the GST law to claim the ITC. However, the statutory auditor was
of the view that the ITC is not available. The airport operator backed up his
position with an opinion from a Senior Counsel from the Supreme Court. However,
the statutory auditor was not convinced. Perhaps, the auditor skipped three
important aspects while framing his view:

 

(1) SA 500 – Audit Evidence, which
deals with this issue, provides that the auditor should determine if the
evidence tendered by the auditee is sufficiently appropriate. This can be done
by:

  •  Evaluating the competence, capabilities
    and objectivity of that expert,
  •  Obtaining an understanding of the work of
    that expert,
  •  Evaluating the appropriateness of the
    expert’s work as audit evidence for the relevant assertion.

(2) The difference between the concepts of
amortisation of an intangible asset and depreciation on tangible assets.

(3) By implementing Ind-AS 115, a position
is taken in accounting that the construction is not on account of the airport
operator but is on account of the Government. Having taken that position and
implemented the same, whether the statutory auditor can bounce back to the form
of the transaction and disregard the conduct in accounting?

 

MATERIALITY


The selection of accounting policy is also
based on the consideration of materiality. In fact, the entire accounting and
auditing process considers materiality and significance as an important
benchmark for any action or inaction. As compared to accounting and auditing,
admittedly, GST law does not define any concept of materiality, much less an
objective benchmark of what constitutes material items. Having said that, one
may need to bear in mind that GST law is nascent and there are many
interpretation issues and conflicting advance rulings. In such a scenario,
to what extent should the statutory auditor step into the shoes of the
assessing officer and define non-compliance of the GST laws? Is it the
prerogative of the statutory auditor to arrive at authoritative conclusions on
debatable legal issues and consequentially qualify financial results on the basis
of apprehensions of likely Department action? How would one define materiality
in this regard?

 

The classification of a transaction as
intra-state or interstate supply and the consequential levy of CGST+SGST or
IGST is based on the correct legal identification of the place of supply.
Sections 10 to 13 of the IGST Act provide for guiding principles to determine
such place of supply. However, there could be scope of interpretation in some
cases. The taxpayer could have discharged IGST, which in the opinion of the
statutory auditor would merit CGST+SGST, or vice versa. What would be
the role of the statutory auditor in such cases?

 

The Legislature itself has predicted that
there could be such interpretation issues and therefore has provided through
section 77 of the CGST Act and section 19 of the IGST Act that in such cases
the wrong tax should be refunded to the taxpayer and the correct tax should be
collected. It is further provided that no interest should be charged in such
cases. Since the tax has been fully paid (though under a wrong head of
classification), many judicial precedents suggest that there should be no
penalty in such cases. In the backdrop of the above provisions, is there a
possibility of a material impact on the financial statements to warrant an
intervention by the statutory auditor?

 

ROLE OF
THE STATUTORY AUDITOR VIS-À-VIS GST COMPLIANCES


The above discussion on the differing
objectives of the GST law and the statutory audit process based on the
discussion of merely AS1 brings to fore the likely interplay between the two
domains. It is important for the statutory auditor to clearly recognise the
differences and the points of interplay while taking any position on GST. At
the same time, in view of SA 250 and the fact that non-compliances in GST law
could have not only a material impact on financial statements but may also
impact the fundamental assumption of going concern, the statutory auditor may
not be in a position to take the management representations at face value. How
does the statutory auditor strike that delicate balance?

 

One important aspect which needs to be noted
before moving on is the basic understanding regarding audit, and that is, ‘An
auditor is a watch-dog and not a bloodhound’
, meaning the auditor is bound
to give a reasonable assurance on the subject matter being audited and not an
absolute assurance. Based on the various activities undertaken during the
audit, the auditor arrives at a reasonable assurance relating to whether or not
the financial statements give a true and fair view and whether or not there is
any material misstatement? An auditor can express his opinion, which can either
be unqualified, qualified, adverse or a disclaimer of opinion, i.e., abstain
from giving an opinion.

 

Paragraph 13 of SA 250 requires the auditor
to perform audit procedures which help him to validate compliance with other
laws and also help him to identify instances of non-compliance with other laws
and regulations that may have a material effect on the financial statements.
One of the processes laid down in the SA is to obtain representation (SA 580)
from management as to whether the entity is complaint with such laws and
regulations.

 

However, mere representation from the
management is not sufficient. The auditor cannot blindly rely on the
representation. He should understand the process designed by the company to
comply with GST compliances and various checks and controls employed by the
company and how the process is actually implemented in reality. This should
include a review of multiple aspects which can be broadly classified as:

(1) Operational Review through a walkthrough
of sample transactions,

(2) Transactional Review of identified
sample transactions,

(3) Final Review of financial statements and
the assertions made through such statements.

 

OPERATIONAL
REVIEW THROUGH A WALKTHROUGH OF SAMPLE TRANSACTIONS


1. Understanding of business

As part of the general audit procedure, the
statutory auditor is expected to have reasonable knowledge about the business
of the enterprise. When it comes to GST, a slightly more detailed knowledge of
the business (more specifically the products and the services offered by the
enterprise) may be required. The tax rates, exemptions, reverse charge
applicability, etc. to a substantial extent depend on appropriate
classification of the goods and the services.

 

It may be useful for the statutory auditor
to obtain the list of HSN classifications of the products or services and the
tax rates applied on them. On a random basis, it may also be appropriate to
review the process of creation of masters in the ERP / Invoicing Software to
ensure that the positions taken by the enterprises are reflected in the conduct
of the enterprise. Depending on the time at the disposal of the auditor and the
materiality, the auditor may also like to examine independently the correctness
of the HSN classifications and the tax rates based on the notifications,
circulars and the advance rulings available in the public domain. However, in
cases where there are conflicting views, it could be perfectly in order for the
statutory auditor to rely on an expert opinion obtained by the auditee in this
regard. In case there is no active litigation on this issue and generally the
industry also accepts the tax rate adopted by the enterprise, the statutory
auditor could be said to have reasonably performed his duty. The dividing line
between the role of a statutory auditor and an investigating tax officer is
very well understood in theory but fairly blurred in practice and the auditor
should use his value judgement in ensuring that he does not transgress this
line.

 

In case of services, it may also be
important to understand the basis on which the enterprise defines the ‘location
of the supplier’. This may be especially important in multi-locational entities
like banks and insurance companies. It may not be feasible for the auditor to
actually examine each transaction to ensure full compliance. Besides, the law
in this regard is fairly ambiguous. Therefore, a general understanding of the
process may be obtained and validated with a few sample transactions. At this
point, the interplay of contractual obligations vis-à-vis the service
performance locations may have to be examined closely and accordingly the
principles of cross-charge of services instituted by the enterprise may be
revalidated.

 

2. Understanding the Procurement to
Pay (P2P) Cycle

In view of the requirement for matching of
vendor credits, correct implementation of the P2P Cycle and appropriate vendor
due diligence are very critical. It may be useful for the statutory auditor to
review the processes of vendor master creation and validation of the GST
registration obtained by the vendor. On a regular basis, the GRN closure
process could be reviewed to verify that the ITC claim is not unnecessarily
delayed. The auto-populated credit statement in Form GSTR2A available on the
GST Portal can be an important audit tool to verify cases of delayed booking of
invoices in the system. At the same time, it may be useful for the statutory
auditor to bear in mind that GSTR2A is a document not in the control of the
auditee and therefore if third parties have made errors in uploading
information in GSTR2A, the taxpayer cannot be faulted for such erroneous
entries.
Similarly, in view of the suspension of the Government-controlled
matching process proposed at the time of the inception of GST, non-reflection
of ITC in GSTR2A may not imply non-compliance on the part of the assessee and
could not result in denial of ITC if the said non-reflection is within the
tolerance limits specified under Rule 36(4).

 

While reviewing the P2P Process, it may also
be important to examine the extent of automation in relation to the processes
of identification of non-eligible credits and the applicability of RCM. At this
point, it may be important to examine the process and system instituted for the
said identification rather than cherry-pick individual transactions and
question the positions already taken by the assessee and duly supported by
adequate prima facie reasoning or expert opinions.

 

While on the P2P Process, it may also be appropriate
to have a review of the inventory cycle to examine situations of shortage, free
supplies, write-offs, destructions, etc., and to revalidate that appropriate
ITC has been reversed in such scenarios. The auditor may bear in mind a
possible legal interpretation that the provisions of section 17(5)(h) get
triggered only in case of inventory items which are procured from outside and
not for finished stocks.

 

In certain cases, liquidated damages,
discounts, incentives, etc., are recovered from the vendors. Such recoveries
may appear in the financial statements as ‘other income’ and, therefore, it is
natural for a statutory auditor to inquire about the applicability of GST on
such ‘other incomes’. However, in case the taxpayer wishes to rely on the decision
of the Mumbai High Court in the case of Bai Mamubai vs. Suchitra
and contend that there is no underlying supply by the taxpayer to the vendor,
in the view of the authors it would be sufficient for the statutory auditors to
take such management representation on record rather than impose their
interpretation on the taxpayer.

 

3. Understanding the Ordering to Cash
(O2C) Cycle

In many organisations, the O2C Cycle may not
comprise of merely one ERP / IT system but may be an integration of multiple
invoicing, delivery and performance modules. In such a scenario, it may be
important for a statutory auditor to understand the specific delivery modules
and their linkage with the invoicing modules which in turn flow the information
into the financial system. It may also be important for the statutory auditor
to have knowledge about the specific system which generates GST-compliant tax
invoices. On a random basis, the review of a few tax invoices to ensure
appropriate GST compliance may be in order. In view of the speedy and
unorganised phase-wise customisation of GST in many organisations and the
limited support offered by ERP software, this integration of the revenue and
the tax GLs becomes very critical in ensuring correct GST compliance. This
aspect becomes even more important in complex service establishments like banks
or airlines where revenue is generated from multiple sources and may not be
immediately accompanied by a system-generated invoice.

 

It may be especially important for the
statutory auditor to verify the checks and controls within the organisation to
ensure that manual or draft invoices are not issued from outside the system. In
many cases, such manual / draft invoices are later regularised in the ERP but
this results in substantial reconciliation issues
since the enterprise
would upload the ERP invoice whereas the customer will upload the manual /
draft invoice.

 

4. Understanding the Financial and
Cost Control (FICO) Modules

The Financial System (FI) Module would take
care of most of the residuary activities within the organisation and therefore
becomes a crucial module for review. Depending upon the extent of automation
and control, it is quite likely that specific tax GLs would be locked for
manual entries. However, if such controls do not exist it may be appropriate
for the auditor to scrutinise the tax GLs in detail to identify such manual
entries and make sure that such manual entries are correctly recorded. A
reconciliation of the tax GLs with the electronic ledgers maintained on the GST
Portal may also provide some indications of non-compliance.

 

5. Understanding Generic GST
Compliances

Having obtained an overall understanding of
the business processes and systems controls, it may then be relevant for the
statutory auditor to venture into a review of the GST processes undertaken by
the enterprise. Some indicative steps could be as under:

 

(a) Whether proper registration has been
obtained by the company?

Having understood the nature of business of
the enterprise, it may be useful for the auditor to cross-check whether it has
obtained all the required registrations. Section 22 of the GST Act requires
every assessee to obtain a registration in each of the states from where it
makes a taxable supply. In view of the provisions of Entry 2 of Schedule I, certain
branch transfers are deemed to be taxable supplies. Considering the interplay
of these two provisions, the auditor may like to examine whether or not all
branches are registered under GST. If they are not registered, the reason for
such non-registration may also be examined.

 

How does one determine whether any place
requires a registration or not? Can there be an imputation of place of business
in cases where employees work from home or from client locations? Since the
concept of ‘fixed establishment’ under the GST law requires a physical place of
permanence with sufficient technical resources to render a service, it may be
in order for the statutory auditor to restrict his inquiries only to the
branches which are physically owned / leased by the enterprise rather than
impute the possibility of a place of business and insist on additional
registrations.

 

(b) Whether taxes are being properly
discharged?

This is an important part from the GST
perspective. GST, as stated above, is a transaction-based tax, i.e., it applies
on almost all transactions undertaken by a company. Therefore, automation in
the process becomes important. This automation can be from different
perspectives such as:

  •  Booking of all incomes and expenses at
    correct locations resulting in booking of GST liabilities and credits also at
    the correct locations,
  •  Booking GST amounts in books.

(1) Is booking of invoices automated or tax
amounts are manually entered in systems? Especially in the context of sales
invoicing where companies issue invoices in a different environment which is
then sourced into the accounting system?

(2) How are various factors determined, such
as HSN, rate of tax, place of supply, etc.? What is the level of manual
intervention involved and determining the scope of errors?

(3) Are reports for GSTR1 auto-generated or
there is a need for manual intervention?

(4) What is the basis to determine
eligibility of ITC and when is it done?

(5) What is the basis to determine liability
to pay tax under reverse charge?

(6) What method is applied for complying
with provisions of Rule 36(4) – matching of credits?

(7) Whether proper accounting entries are
passed in the books of accounts relating to liabilities and credits?

(8) Whether tax payable on outward supplies
is computed correctly compared with the corresponding GST Rate? Whether the
amounts match with the tax collection as per liability GLs?

(9) Whether tax liability is triggered on
all inward supplies liable to reverse charge and at the correct rate? Whether
monthly reconciliation with expenses booked in corresponding GLs is prepared?

(10) Whether the balance as per the books of
accounts is reconciled with the corresponding balance on the GST Portal? In
case there are differences, are the same reconciled?

 

(c) Whether there are any disputed
statutory dues? If yes, the forum before which the dispute is pending and the
amounts involved in the dispute?

This would cover disputed dues other than
the above and would also include dues which have been demanded by the tax
authorities but not accounted for in the books of the company. For example, the
company has treated a particular transaction as not liable to tax for reasons
such as exports, exempted, etc., or a claim of ITC is disputed by the tax
authorities. Such instances would not be reported as liability in the books of
accounts and therefore the auditor would be required to undertake specific
steps to identify such instances.

 

Under GST, there is a facility to maintain
all assessment proceedings, such as issuance of notices, orders, etc., online
on the GST Portal. Therefore, one way to identify disputes under GST is by
checking the details of notices issued to a company in the notice section of
each GSTIN.
In case notice has been issued, identifying the status of the
said notice as to whether the same is relating to a recovery proceeding or
procedural aspect. Generally, a mere notice for recovery should not require
reporting under CARO. However, if the notice has been adjudicated and an order
issued with respect to the same against which the company has filed an appeal,
the same would require reporting under this tab.

 

However, all field formations do not follow
this automated process and there are instances when the notices, orders, etc.,
are issued manually. In such cases it would be difficult to ascertain the new
disputed dues and therefore for the same he can check the litigation tracker,
if any, maintained by the company and do the above exercise, or rely on the
management representation to this extent.

 

CONCLUSION


As stated earlier, a statutory auditor may
need to adopt a three-pronged approach towards ensuring adequate GST
compliance. While doing so, he should attempt to achieve reasonable assurance
that there is no significant misstatement of the financial results on account
of GST. This is a subjective analysis and no defined monetary benchmarks can be
established except by analysing the probable consequences. However, what may be
important is to prioritise the aspects of systems and processes and controls
and validate the business processes through review of sample transactions
rather than step into the shoes of an assessing officer and question the
interpretations adopted by the enterprise.

 

We have discussed in this article the
conceptual framework and aspects relating to the operational review. In the
next article, we shall cover in detail some aspects related to transactional
review and the final review of the financial statements, including assertions
made therein.

 

[This article has received
substantial inputs from Editor Raman Jokhakar whose contribution the
authors would like to acknowledge.]

FROM PUBLISHED ACCOUNTS

DISCLAIMER OF
CONCLUSION REPORT

 

COFFEE DAY
ENTERPRISES LTD. (CONSOLIDATED)


From Review
Report to financial results for the quarter ended 30th June, 2019
(dated 17th July, 2020)

 

COMPILER’S NOTE


Post the issue of this report, the then
statutory auditors tendered their resignation to the company citing commercial
considerations. The subsequent auditors appointed to fill in the casual vacancy
also resigned citing technical reasons. For the quarter ended 30th
September, 2019, the next auditors appointed have issued a similar ‘Disclaimer
of Conclusion’ report.

 

BASIS FOR DISCLAIMER OF CONCLUSION


(a) Auditor of 1 subsidiary which in turn
has 13 step-down subsidiaries and 2 joint ventures (together constituting 38%
of revenue and 1% of profit), based on its review, has expressed an unmodified
conclusion on the underlying unaudited consolidated financial results. The
review report is dated 2nd August, 2019 and is therefore of a date
much earlier than the date of this report.

 

Auditors of 4 subsidiaries (constituting 51%
of revenue and 36% of profit), based on their review, have issued a disclaimer
of conclusion on the underlying unaudited financial results due to inter
alia
: possible impact of the ongoing investigation; non-availability of
listing of transactions and recoverability of balances of ‘advances net of
trade payables’ (including related party); reconciliations / confirmations of
receivable and payable balances, recoverability of receivables.

 

In our Group Review Instructions, circulated
in accordance with the SEBI Circular issued under Regulation 33(8) of the
Listing Regulations read with SA 600, ‘Using the Work of Another Auditor’, we
raised a number of queries and sought further information and explanations from
the above subsidiary auditors including: impact of ongoing investigation;
compliance with applicable laws and regulations with respect to related party
transactions; impact on account of breaches of debt covenants; consideration of
subsequent events up to the date of this report; amongst others. However, we
did not receive adequate clarifications / responses from these auditors.

 

The review reports of the Parent Company and
five other subsidiaries reviewed by us (constituting 6% of revenue and 66% of
profit) express disclaimer of conclusion on the underlying unaudited financial
results due to inter alia: possible impact of the ongoing investigation;
listing, compliance and recoverability of related party transactions and
balances; recoverability of capital advances, receivables and other financial
assets; accuracy of taxes; impact of subsequent events to the date of this
report; and the appropriateness of the going concern assumption.

 

Based on the above, we have not been able to
obtain sufficient appropriate evidence which could support a conclusion other
than a disclaimer for the Group as a whole.

 

(b) In a letter dated 27th July, 2019
signed by the late Mr. V.G. Siddhartha, the Promoter and then Chairman and
Managing Director of the Parent Company, which has come to light, it was inter
alia
stated that the Management and auditors were unaware of all his
transactions. Attention is drawn to Note 11 of the Statement, wherein,
consequently, the Board of Directors have initiated an investigation into the
circumstances leading to the statements made in the letter and to scrutinise
the books of accounts of the Company and its subsidiaries. As of the date of
this report, the investigation is not yet concluded and, thus, the Parent
Company is unable to conclude if there are any adjustments / disclosures
required to be made to the Statement.

 

Pending outcome of the ongoing
investigation, we are unable to comment on the completeness, existence,
accuracy and appropriateness of the transactions and disclosures of the current
quarter and earlier periods, including regulatory non-compliances, if any, and
any other consequential impact to the Statement.

 

(c) Sufficient appropriate evidence to
demonstrate the identification of related parties (as defined by the Listing
Regulations, other applicable laws and the Indian Accounting Standard),
transactions with such parties and the resulting balances have not been made
available in the case of many subsidiaries. Similarly, sufficient appropriate
evidence to demonstrate business rationale, propriety, compliance with the
requirements of the relevant laws and regulations for these transactions and
the recoverability of the balances with these parties has not been made
available.

 

Accordingly, we are unable to comment on the
completeness, existence, accuracy, business rationale, propriety of
transactions with related parties, compliance with applicable laws and regulations,
recoverability of these balances and the consequential impact, if any, on the
Statement.

 

(d) In case of certain subsidiaries, we have
not received sufficient appropriate evidence with respect to compliance with
debt covenants or details of defaults in repayment of borrowings and consequent
actions, if any, taken by bankers / lenders as provided in the relevant loan
agreements (refer Note 21 of the Statement).

 

Accordingly, we are unable to comment on the
completeness, existence and accuracy of the borrowings on account of
consequential adjustments that might arise due to non-compliance with debt
covenants.

 

(e) In case of one subsidiary, sufficient
appropriate evidences for the listing of transactions and recoverability of
balances of ‘advances net of trade payables’ (including related parties)
amounting to Rs. 1,025 crores have not been made available. Additionally, in
case of certain other subsidiaries, the reconciliations / confirmations of
receivable and payable balances have not been received. Further, an assessment
of recoverability of the receivables and other financial assets has also not
been provided.

 

Accordingly, we are unable to comment on the
completeness, existence and recoverability of such ‘advances net of trade
payables’, receivable and other financial assets, and the completeness and
existence of payable balances.

 

(f) In case of certain subsidiaries, we have
not received sufficient appropriate evidence of the indicators and the
consequential assessment of impairment of non-financial assets for the quarter
ended 30th June, 2019, i.e., for leasehold improvements, capital
work-in-progress and capital advances aggregating to Rs. 248 crores.

 

Additionally, at a consolidated level, for
goodwill amounting to Rs. 510 crores we have not received sufficient
appropriate evidence of the indicators and the consequential assessment of
impairment (refer Note 12 of the Statement).

 

The above impairment assessments are as
required by Ind AS 36, ‘Impairment of Assets’, particularly consequent to developments
during the period, including the pending investigation as discussed in this
report.

 

Accordingly, we are unable to comment on
whether any adjustments on account of impairment are required with regard to
such non-financial assets, including goodwill.

 

(g) As detailed in Note 18 of the Statement,
sufficient appropriate evidence is not available to support a subsidiary’s
compliance with section 45-IA of the Reserve Bank of India (RBI) Act, 1934.
Further, the Parent Company and another subsidiary had filed applications
seeking exemption from registering themselves as Non-Banking Financial Company
(NBFC). As at the date of this review report, a response from RBI is awaited.

 

Accordingly, we are unable to comment on the
compliance with the aforesaid regulations and consequential impact, if any, on
the Statement.

 

(h) The Parent Company has also received a
notice from the Registrar of Companies, Karnataka, calling for information in
connection with a proposed enquiry under section 206 of the Companies Act,
2013. The Parent Company is in the process of responding to such enquiry.
Pending the outcome of the enquiry and related proceedings, we are unable to
comment on the impact of the same on the Statement.

 

(i) As explained in Note 8 of the Statement,
a subsidiary transferred a part of its business to its step-down subsidiary
whose parent subsequently became a joint venture. Sufficient justification and
basis of accounting for such transfer and compliance of the same with the
requirements of the Indian Accounting Standards have not been provided.

 

Accordingly, we are unable to comment on
whether the transaction complies with the requirements of Indian Accounting
Standards and consequential impact on the Statement, if any.

 

(j) In the case of 1 subsidiary, which in
turn has 13 step-down subsidiaries and 2 joint ventures, reviewed by another
auditor, the relevant review report on consolidated unaudited financial results
is dated much earlier than the date of this report. In the case of this group as
well as for other subsidiaries sufficient appropriate evidence regarding
subsequent events as required by Ind AS 10, ‘Events after the Reporting
Period’, has not been provided, and therefore relevant procedures could not be
performed.

 

Accordingly, we are unable to comment on the
adjustments, if any, arising from such events in the case of these subsidiaries
which may have occurred in the time period between 30th June, 2019
and the date of this report.

 

(k) As detailed in Note 19 of the Statement,
the Parent Company and certain subsidiaries have adopted section 115BAA of the
Income-tax Act, 1961 for measurement of its tax expense for the quarter ended
30th June, 2019 at the reduced rates. Since section 115BAA of the
Income-tax Act, came into force on 20th September, 2019 it cannot be
applied for measurement of the tax expense for the quarter ended 30th
June, 2019. Thus, the tax expense is not in compliance with applicable
standards. Additionally, matters listed in the paragraphs above may have a
consequential effect on the Company’s current and deferred tax expense /
(credit) for the current period / earlier periods as well as corresponding
balances as at the reporting date.

 

Accordingly, we are unable to comment on the
completeness and accuracy of current and deferred tax expense / (credit) for
the current period / earlier periods as well as the corresponding balances as
at the reporting date.

 

(l) In case of the Parent Company and
certain subsidiaries, the review reports contain a disclaimer of conclusion
relating to going concern; the review reports of certain other subsidiaries
contain a paragraph stating that there was material uncertainty relating to
going concern assumption. However, the management has prepared the consolidated
financial results on a going concern basis as detailed in Note 22. On a
consideration of the overall position and in view of the matters stated in the
paragraphs above, we are unable to comment on whether the going concern basis
for preparation of the Statement is appropriate.

 

DISCLAIMER OF CONCLUSION


Because of the substantive and pervasive
nature of the matters described in paragraph 6, ‘Basis for
disclaimer of conclusion’, above for which we have not been able to obtain
sufficient appropriate evidence resulting in limitation on work, and in respect
of which the possible adjustments have not been determined, and based on the
consideration of the review reports of the other auditors referred to in
paragraph 8 below, we are unable to state whether the accompanying Statement
has been prepared in accordance with the recognition and measurement principles
laid down in the relevant Indian Accounting Standards and other accounting
principles generally accepted in India, or that the Statement discloses the
information required to be disclosed in terms of Regulation 33 of the Listing
Regulations, including the manner in which it is to be disclosed, or that it
contains any material misstatement. Thus, we do not express a conclusion on the
accompanying financial results.

 

 

The task is not to see what has never been seen
before, but to think what has never been thought before about what you see
every day.

                                           — 
Erwin Schrödinger
(1887 – 1961)

FROM THE PRESIDENT

My Dear Members,

Many
things have happened all around us in the recent past. On 20th
August, the BCAS along with the BCA Foundation hosted the Fifth
Narayan Varma Memorial digital event jointly with other organisations.
Everything happened virtually in the true spirit of ‘the show must go on’ and
following the positive attitude of the Late Narayanbhai Varma. In the
panel discussion on Covid-19, the participants included a physician, a
psychologist and a Covid survivor CA professional who shared their thoughts and
experiences. As per tradition, the BCA Foundation recognised the social
contributions of its CA nominee Sanjay Hegde and felicitated him.

 

This
year, the volunteers of the BCAS and the BCA Foundation could not
visit Dharampur for the annual tree plantation programme. This initiative was
started in 2011 with the planting of a mere ten trees; but it has now gone on
to over 300 trees. We started with seven volunteers visiting the place and now
it is over 40 with a combination of young and old. And so, on 28th
August we arranged the tree plantation event via a digital meeting with the
trustees of the Sarvodaya Parivar Trust with video presentations of the Dharampur
site. We followed ‘Work from Home’ here, too, in an innovative manner with our
BCAS Green Warriors’. We felicitated the volunteers who planted trees
in and around their localities and carried out tree plantation this year
although they were working from home.

 

In
the West, tech companies have surged past every other industry in this digital
transformation regime amplified by the Covid-19 situation. Recently, the
world’s most famous equity benchmark, the Dow Jones Industrial Average of USA,
replaced the world’s biggest company of the last decade, viz., Exxon Mobile
Corp., from the index list with a technology company. This reflects the steady
challenges faced by commodity companies in the American economy; the trend is
similar in other economies, too.

 

‘Retire
from your job, but never retire your mind.’ These are golden words. Retirement
is a stage of life that could be a new beginning with new initiatives on the
family front, the social front, or in one’s personal space which might have
been missed during the days of one’s employment. The person who plans his
retirement years in advance – financially as well as post-retirement new
initiatives – is prudent and wise.

 

On
Saturday, 15th August, on the occasion of India’s 74th
Independence Day, the 39-year-old M.S. Dhoni (MSD) bid adieu to
international cricket and thus called curtains on his illustrious career
spanning 16 years. It was, as we know him well, done in his normally cool,
silent style, with very few words.

 

‘Looking
at you as just a sportsperson would be an injustice. The correct way to assess
your impact is as a phenomenon! Rising from humble beginnings in a small town,
you burst onto the national scene, made a name for yourself and, most
importantly, made India proud,’ – this is how the Hon. Prime Minister, Mr.
Narendra Modi, wished the hero of the Word Cup. How aptly the person and the
situation are portrayed in these few words. All Indians would always be proud
of MSD and he would be an inspiration to the next generation. I wish and hope
that post-retirement he would take up and initiate the setting up of a training
academy to create more MSDs for Indian cricket.

 

Recently,
the Reserve Bank of India (RBI) published its annual report 2019-20 (year ended
30th June, 2020). On a review of the report and certain comments
therein, I, as an accounting professional, observed three key perspectives –
accountants, auditors and economics / investment.

 

The accountant’s perspective

RBI’s
lower income and higher provisions resulted in the transfer of lesser surplus
to the government. It fell to Rs. 57,000 crores from Rs. 1.76 lakh crores in
the previous fiscal. The increase in provisions towards Contingency Fund from
Rs. 64 crores in the previous fiscal to Rs. 73,615 crores was the Covid-19
effect on the RBI financials.

 

The auditor’s perspective

The
cases of major frauds reported in 2019-20 added up to Rs.1.85 trillion, more
than double the previous year’s figure. Large credit frauds were the major
component, though low-value online cybercrimes arising out of net transactions
are a cause of worry, too.

 

Economic / investment perspective

The moratorium for loan
repayments with the infusion of more than Rs. 3 lakh-crore guarantees by the
Central Government has boosted the morale of the MSME sector where banks have
started disbursing funds to help the sector recover from the adverse impact of
the pandemic and migrant labour.

 

The sharp cut in corporate
tax announced in September, 2019 has been used by the corporates to reduce debt
and build up cash and other current asset balances rather than a fresh CAPEX
cycle. This resulted in a weakness in private investment demand and capital
expenditure in the economy.

 

In the present context of
rising inflation and slower growth, monetary policies cannot be traditional and
book-bound but progressive and innovative. The report narrates in detail the
various measures initiated by RBI including progressive reductions in the Repo
rate and the various windows to infuse additional liquidity to lead the economy
onto the path of growth.

 

Come September and let it
bring changes much awaited and longed for. May I close this page by requesting
you to visit our site bcasonline.org for extremely relevant and
innovative events in the month of September, 2020, such as M&A – Master
Class, Brand Building by professional firms and so on? You may also visit the BCAS
Global
social media handle for the events missed, if any.

 

Best Regards,

 

 

CA
Suhas Paranjpe

President

SOCIETY NEWS

ENHANCING AUDIT QUALITY

The BCAS organised a virtual lecture by CA P.R. Ramesh on ‘Enhancing audit quality & enhanced reporting obligations’. It was planned keeping in mind the changes in the Companies Act, 2013 on audit quality and reporting norms.

The Managing Committee, along with the Accounting and Audit Committee, organised the event on 14th July. Vice-President CA Mihir Sheth welcomed the gathering and introduced the speaker.

Mr. Ramesh took participants through the current environment of audit, audit quality expectations, new CARO amendments and their reporting and other emerging reporting obligations like integrated reporting and ESG reporting.

He explained the current environment with various quotes and media displays; he touched on the complexities in the business transactions of today; the biggest failures across the globe and the big corporate failures. He also covered the current concerns such as poor corporate governance, lack of ethical behaviour, credibility of oversight and enforcement actions, failures due to shoddy accounting and auditing, and auditors missing glaring signs of failure.

Covering audit quality aspects, he stated that the statutory audit is the sixth line of defence, the first five being higher level management, functional and process managers, risk management and compliance functions, internal audit, and board and other committees. The basic building blocks of good audit quality were various structural, environmental and output factors, oversight and evaluation and execution issues. He laid special emphasis on audit procedures, the tools and techniques used and evaluation of audit results.

He also discussed the importance of communication to those charged with governance about routine, special and other matters, including auditor’s independence, communications; form, type and format of audit report and its qualitative and quantitative factors; management letter and group audits.

Mr. Ramesh then took up the history of the evolution of CARO, the key considerations and audit procedures in relation to the recent changes in CARO such as:
* reporting on proceedings initiated or pending against the company for holding any benami property under the Benami Transactions (Prohibition) Act, 1988 (45 of 1988) and rules made thereunder;
* reporting on whether at any point of time during the year the company has been sanctioned working capital limits in excess of Rs. 5 crores in aggregate from banks or financial institutions on the basis of security of current assets; and also whether the quarterly returns or statements filed by the company with such banks or financial institutions are in agreement with the books of accounts of the company;
* reporting on whether during the year the company has made investments in, provided any guarantee or security, or granted any loans or advances in the nature of loans, secured or unsecured, to companies, firms, LLPs or any other parties;
* details of investments, any guarantee or security or advances or loans not prejudicial to the company’s interest;
* whether any transactions not recorded in the books of accounts have been surrendered or disclosed as income during the year in the tax assessments under the Income-tax Act, 1961 (43 of 1961), and if so, whether the previously unrecorded income has been properly recorded in the books of accounts during the year [Clause 3(viii)];
* whether term loans were applied for the purpose for which they were obtained; if not, the amount of loan so diverted and the purpose for which it was used may be reported;
* whether funds raised on short-term basis have been utilised for long-term purposes; if yes, the nature and amount to be indicated;
* whether any fraud by the company or any fraud on the company has been noticed or reported during the year; if yes, the nature and the amount involved is to be indicated;
* whether the auditor has considered whistle-blower complaints, if any, received during the year by the company;
* existence of any material uncertainty on the date of the audit report and various other clauses.

The amendment to Schedule III of the Companies Act, 2013 and Amendments to the Companies (Accounts) Rules, 2014 were also covered.

Mr. Ramesh took up topics related to Integrated Reporting which is a concise communication about how an organisation’s strategy, governance, performance and prospects in the context of its external environment lead to value creation over the short, medium and long terms. He pointed out that on 25th March, 2021, SEBI decided to make the Business Responsibility and Sustainability Report applicable to the top 1,000 listed entities (by market capitalisation) for reporting on a voluntary basis for F.Y. 2021-22 and on a mandatory basis from F.Y. 2022-23.

He answered all the questions raised by the participants on the chat and Q&A box.

The key takeaways from the session were:
• Increased disclosures in financial statements with respect to clauses contained in CARO 2020 with the aim of increased compliance for the matters contained therein;
• Increased role of the CFO with the focus on compliances with certain laws and regulations, sanity of financial information furnished to banks, and to take note of adverse financial positions and corrective measures;
• Increased data-sharing with auditors and coordination required for concluding prior to sign-off;
• The overall quality of reporting by the auditors expected to increase on the financial statements of the company and thereby lead to greater transparency;
• Responsibility on the management for additional disclosures in the financial statements on various aspects relating to financial discipline, ageing, end-use of funds, etc.

The vote of thanks was proposed by CA Chirag Doshi. A large number of participants attended the online meeting. Its archival video has, in a short time, garnered a few thousand views.

A video of the same is available on YouTube at link: https://www.youtube.com/watch?v=gAbYUI8hOgs

Introducing a new feature, the BCAJ invites readers to scan the following QR Code that will help them to download the meeting and glean the knowledge shared by speaker P.R. Ramesh.


A MOVIE WITH TWISTS AND TURNS

The Human Resources Development Study Circle organised the screening of a film, ‘Ek Cheez Milegi Wonderful’, on the online platform on 25th July. The screening was sponsored by CA Vijay Mehta.

It was like family time for members as they watched it in the comfort of their homes. The three valuable hours that they spent on the movie helped bring home the message that in order to live better lives, it is best to make each other more comfortable and happy within the home. This was one of the lessons that was conveyed by the movie which was appreciated by the viewers.

The movie ‘Ek Cheez Milegi Wonderful’, offered both inspiration and motivation. In a world that craves and celebrates material things in lieu of happiness, the movie leads viewers to the actual meaning and essence of being happy. It reveals how ‘knowledge’ is a unique, unparalleled characteristic of the entire bio-world. It poses the question, what differentiates us humans from the rest of the living beings? Are we really higher than all of them on the pyramid of the living world?

Like any typical film, the movie features several twists and turns that keep the viewers focused till the very end when all the characters in it agree to the ‘universal truth’.

A must-watch movie, it is available on YouTube at the link https://youtu.be/lJNSpKWHwcg.

CHANGES IN COMPANY LAW & AUDITING

The Students’ Forum under the auspices of the HRD Committee organised a training session for CA Article Students on ‘Changes in Company Law & Auditing’ via Zoom Meetings on 26th July.

The Study Circle was led by CA Shraddha Kishnadwala, an expert on the subject.

CA Dnyanesh Patade, the co-ordinator, introduced the speaker and spoke about the various activities and events conducted by the BCAS Students’ Forum and encouraged the participants to take active part in its events.

Shraddha Kishnadwala then described the various changes in the Company Law in a lucid manner. She also explained the audit and verification procedures that can be followed and their impact on reporting.

The session was divided into three parts, viz., (a) Changes in Schedule III reporting, (b) Other major changes in the Companies Act, and (c) Auditing Procedure and Changes in CARO. The speaker pointed out that the Companies’ Amendment Act had bought about many changes in reporting, format and compliance.

The programme ended with CA Dnyanesh Patade, member of the HRD Committee, proposing the vote of thanks. About 160 students participated in the interactive session and they offered a positive feedback.

The session can be viewed on the BCAS YouTube Channel at: https://www.youtube.com/watch?v=Tt76E_C8Alc

TAXATION OF INDIVIDUALS

The Direct Tax Laws Study Circle Meeting on ‘Taxation of Individuals (Including Expats) with Special Emphasis on Taxing Accretion to Employer’s PF Contribution’ was held on 30th July.

Group leader CA Deepashree Shetty gave an overview of the residency criteria applicable for individuals and the tax relief measures available on account of Covid-19. She also discussed the key consideration for tax residency and taxation of the salary income of individuals (including expats).

Thereafter, she spoke on the tax implication of social security contributions (including that for expats). She also threw light on the impact of the newly-inserted Rule 3B and took the participants through the mode for computation of taxable amount and the practical challenges in computation under Rule 3B. The session ended with Deepashree discussing the provisions related to international work (i.e., expats) and the benefits of social security agreements.

FCRA AND RECENT AMENDMENTS

The FEMA Study Circle of the BCAS and the Financial Management Service Foundation (Delhi) came together for a discussion on ‘FCRA and Recent Amendments’. The meeting was led by Dr. Manoj Fogla, Dr. Sanjay Patra, CA Suresh Kejriwal and Mr. Sandeep Sharma. It was held on 31st July.

The session started with an introduction of the Foreign Contribution Regulation Act, 2010 (FCRA), followed by an in-depth analysis of its key provisions and the recent amendments. The speakers focused on details of the FCRA provisions and addressed the queries raised by the participants. The presentation was followed by a Q&A session.

The speakers pointed out that the recent amendments in FCRA have helped the authorities regulate the flow of funds received from foreign sources. However, this has also drastically changed the manner in which projects are executed by charitable institutions. This had created a lot of anxiety amongst them as well as the professionals advising them. It was no surprise that there were more than 1,300 registrations for the event with participation from charitable institutions and professionals alike.

MISCELLANEA

I. Technology

22 Boston Dynamics’ back-flipping robot shows off new ‘parkour’ routine

Boston Dynamics has said that if a robot can develop the same movement and flexibility as the average adult, then the range of potential applications will be practically limitless.

Boston Dynamics’ humanoid robot, Atlas, has been showing off its new skill, parkour or free running atop and over obstacles.

A new video shows Atlas leaping over obstacles, doing back-flips and even falling flat on its face during practice runs.

The company says that if a robot can develop the same movement and flexibility as the average adult, then the range of potential applications will be practically limitless.

‘Parkour is a useful organising activity for our team because it highlights several challenges that we believe to be important,’ said team leader Scott Kuindersma.

‘How do we connect perception to action in a way that both captures long-term goals like getting from point A to point B, and short-term dynamic goals like adjusting footsteps and applying corrective forces to maintain balance,’ Kuindersma said.

Atlas stands 5 feet (1.52 m) tall, weighs 190 pounds (86 kg.), uses hydraulics and battery-powered electric motors for movement and has three on-board computers.

It is designed to be used as a research and development tool and its Boston Dynamics team is being encouraged to push it to the limit.

‘It can be frustrating sometimes. The robots crash a lot,’ said Benjamin Stephens, control lead on the Atlas team.

‘We learn a lot from that in terms of how to build robots that can survive falling on their face and getting back up and doing it again and we also learn a lot about the behaviour, the control, the thing that puts one foot in front of the other,’ Stephens said.

(Source: indianexpress.com, dated 18th August, 2021)

II. Economy

23 Forex reserves rise by $889 million to lifetime high of $621.464 billion

The country’s foreign exchange reserves increased by $889 million to a lifetime high of $621.464 billion in the week ended 6th August, 2021, RBI data has revealed.

In the previous week ended 30th July, 2021, the reserves had surged by $9.427 billion to reach $620.576 billion.

In the reporting week, the increase in the forex kitty was due to a rise in foreign currency assets (FCAs), a major component of the overall reserves, as per weekly data issued by RBI.

FCAs rose by $1.508 billion to $577.732 billion in the reporting week. Expressed in dollar terms, the foreign currency assets include the effect of appreciation or depreciation of non-US units like the euro, pound and yen held in the foreign exchange reserves.

Gold reserves were down by $588 million to $37.057 billion in the reporting week, the data showed.

The special drawing rights (SDRs) with the International Monetary Fund (IMF) dipped by $1 million to $1.551 billion.

The country’s reserve position with the IMF also fell by $31 million to $5.125 billion, as per the data.

(Source: economictimes.indiatimes.com, dated 13th August, 2021)

III. Financial Reporting World

24 SEC charges Ernst & Young, three audit partners and former public company CAO with audit independence Misconduct

The Securities and Exchange Commission has charged accounting firm Ernst & Young LLP (EY), one of its partners and two of its former partners with improper professional conduct for violating auditor independence rules in connection with EY’s pursuit to serve as the independent auditor for a public company with nearly $5 billion in revenue (issuer). Separately, the Commission brought charges against the issuer’s then-Chief Accounting Officer for his role in the Misconduct. All respondents have agreed to settle the charges and will collectively pay more than $10 million in monetary relief.

The SEC’s order against the auditors finds that EY, EY partner James Herring, CPA, and former EY partners James Young, CPA and Curt Fochtmann, CPA improperly interfered with the issuer’s selection of an independent auditor by soliciting and receiving confidential competitive intelligence and confidential audit committee information from the issuer’s then-Chief Accounting Officer, William Stiehl, during the request for proposal process. EY’s misconduct in connection with the audit pursuit, the order finds, would cause a reasonable investor to conclude that EY and its partners were incapable of exercising Objectivity and Impartiality once the audit engagement began. The SEC’s separate order against Stiehl finds that, through his Misconduct during the request for proposal process, including withholding key information from the issuer’s audit committee, Stiehl caused the issuer’s reporting violations.

‘Auditor independence is not merely an obstacle to overcome, it is the bedrock foundation that supports the integrity, transparency, and reliability of financial reporting,’ said Charles Cain, Chief of the SEC Enforcement Division’s FCPA Unit. ‘Auditor independence requires auditors to analyse all of the relevant facts and circumstances from the perspective of the reasonable investor. EY and its partners lost sight of this fundamental principle in their pursuit of a new client. This action further underscores that auditors must apply heightened scrutiny when making independence determinations.’

The SEC’s order against the auditors finds that EY, Herring, Young and Fochtmann violated the auditor independence provisions of the federal securities laws and that EY, Herring, and Young caused the issuer to violate its obligation to have its financial statements audited by independent public accountants. The order also finds that all respondents engaged in improper professional conduct within the meaning of Rule 102(e) of the SEC’s Rules of Practice.

EY, Herring, Young, and Fochtmann consented to the SEC’s order without admitting or denying the findings and agreed to cease and desist from future violations. EY has agreed to a censure, to pay a civil money penalty of $10 million and to comply with a detailed set of undertakings for a period of two years. Herring, Young and Fochtmann agreed to pay civil money penalties of $50,000, $25,000, and $15,000, respectively, and to be suspended from appearing or practising before the Commission, with a right to reapply for reinstatement after three, two, and one years, respectively.

The SEC’s order against Stiehl finds that he caused and wilfully aided and abetted the issuer’s reporting obligations stemming from the auditor selection process improprieties. Stiehl, who consented to the order without admitting or denying the findings, has agreed to cease and desist from future violations of the securities laws, to pay a civil money penalty of $51,000, and to be suspended from appearing or practising before the Commission, with a right to reapply for reinstatement after two years.

The SEC’s investigation was conducted by Jim Valentino, Natalie Lentz and trial counsel Sarah Heaton Concannon. The case was supervised by Tracy L. Price and Mr. Cain.

(Source: www.sec.gov, dated 2nd August, 2021)

25 Sanctions against KPMG and former partner in relation to Silentnight

The Financial Reporting Council (‘FRC’) has announced sanctions against KPMG LLP (KPMG) and David Costley-Wood, formerly a partner and Head of KPMG Manchester Restructuring. This follows a referral from The Pensions Regulator and an investigation undertaken pursuant to the Accountancy Scheme in relation to Mr. Costley-Wood’s conduct in respect of the Silentnight group of companies in the period August, 2010 to April, 2011. An independent Disciplinary Tribunal made findings of Misconduct following a four-week hearing during November and December, 2020 and sanctions were determined following a hearing in June, 2021.
Sanctions

KPMG has been:
• fined £13 million,
• severely reprimanded, and
• ordered to appoint an independent reviewer to:

(1) Conduct a Root Cause Review to establish:
a. why threats to compliance with the fundamental principle of Objectivity were not appropriately identified and safeguarded in the period prior to the appointment of office holders in the Silentnight matter; and
b. in a sample of past cases, whether threats to compliance with the fundamental principle of Objectivity were appropriately identified and safeguarded in the period prior to the appointment of office holders and if not, the reasons for such failures; and

(2) conduct a review of various policies, procedures and training programmes relating to several of KPMG’s advisory services practices in the light of the results of the Root Cause Review.

Mr. Costley-Wood has been:
• fined £500,000,
• severely reprimanded,
• excluded from membership of the ICAEW for 13 years, and
• precluded from holding an insolvency licence for the same period.

Findings of Misconduct

The Tribunal made findings of Misconduct in respect of breaches of the fundamental principles of Objectivity and Integrity. It described the history of KPMG’s involvement with Silentnight in this case as deeply troubling as KPMG failed to act solely in its client’s interests, acted in fundamental respects contrary to those interests and in those of a party whose interests were diametrically opposed to those of Silentnight. It concluded that the lack of Objectivity in this matter went to the core of the relationship between Silentnight and KPMG.

The Tribunal also held that, in addition to the lack of Objectivity in relation to his dealings with Silentnight, Mr. Costley-Wood acted dishonestly and therefore he and KPMG acted with a lack of Integrity, including in their dealings with the Pension Protection Fund (‘PPF’) and The Pensions Regulator (‘TPR’) despite Mr. Costley-Wood acknowledging that there was an obligation to act transparently in relation to a regulator.

The Tribunal commented:

‘Breaches of the principles of Integrity and Objectivity risk seriously undermining public confidence in the standard of conduct of Members and Member Firms and in the profession generally, all the more so where, as here, the professional has acted dishonestly. Dishonesty is inimical to everything that a profession stands for and especially destructive of public confidence’.

The Tribunal found that Misconduct had been established in that:

Throughout the period 16th August, 2010 to 14th January, 2011, Mr. Costley-Wood advised and / or assisted both Silentnight and HIG in relation to a proposed acquisition of Silentnight by HIG at a time when there was a conflict of interest between the interests of Silentnight and HIG, and as a result, the respondents’ judgement was compromised and Objectivity impaired.

Mr. Costley-Wood assisted with a strategy designed to drive Silentnight into an insolvency process, or to the brink of such a process (a ‘burning platform’), with a view to passing Silentnight’s Pension Scheme to the PPF at the expense of Pension Scheme members and PPF levy payers. In this context, Mr. Costley Wood provided advice and assistance to HIG so that it could acquire Silentnight as an otherwise profitable business without the burden of the Pension Scheme liabilities.

The respondents failed, in addition, to consider the self-interest and familiarity threats which arose from their relationship with HIG and from their desire to nurture that party as a client and keep them ‘onside’. Mr. Costley-Wood was conscious of the importance of the potential relationship of HIG to KPMG throughout. The respondents’ loss of Objectivity underlay or drove much of what they did in relation to Silentnight throughout the relevant period, including assisting and advising HIG in its plan to acquire Silentnight free of the Pension Scheme liability from the summer of 2010.

Mr. Costley-Wood dishonestly advanced and associated himself with untrue and misleading and / or materially incomplete statements to the PPF, TPR, Silentnight and the Trustees of the Silentnight Pension Scheme as to the causes of Silentnight’s difficulties in order to assist HIG in its efforts to enable Silentnight to shed its liability under the Pension Scheme as cheaply as possible.

KPMG is legally liable under the Accountancy Scheme for the conduct of Mr. Costley-Wood, and accordingly the findings of Misconduct by KPMG were made by the Tribunal in respect of the same matters.

One further allegation of Misconduct made by the FRC was not upheld by the Tribunal.

In determining the sanctions, the Tribunal considered the Misconduct was very serious, noting that to a professional accountant the conflicts of interest should have been obvious and that the Misconduct risked the loss of significant sums of money. It put at risk Silentnight’s ability to survive and tens of millions of pounds of creditors’ claims, potentially exceeding £100 million as the liability to the Pension Scheme would crystallise. The Misconduct potentially adversely affected a significant number of people. The majority of the membership of the Pension Scheme comprised factory workers, many of whom had worked for Silentnight and contributed to the pension scheme for much of their working life. This was a foreseeable consequence of the plan to ‘dump’ the pension scheme into the PPF.

The Tribunal considered the respondents’ Misconduct in respect of advancing or associating themselves with untrue, misleading or incomplete statements to the PPF, TPR and the Trustees to be especially egregious given that they knew they had to be open and transparent with these parties and that they intentionally sought to mislead them in order to assist HIG in its efforts to enable Silentnight to shed its liability under the Pension Scheme as cheaply as possible.

The Tribunal further commented:

‘The standards of Integrity and Objectivity are of fundamental importance. They express the most basic requirements that society expects of professional accountants. Members of the profession have a privileged and trusted role in society. In return, they are required to live up to their own professional standards. Society expects high standards from professional persons; and the professions expect high standards from their own members.’

Subsequent to the events outlined above, Silentnight went into administration on 7th May, 2011 as a result of an entity related to HIG calling in the working capital facility. This culminated in the sale of the business out of administration to HIG, with the PPF assessing whether to assume responsibility for the Pension Scheme.

Costs

The Tribunal ordered that KPMG pay £2,450,000 towards Executive Counsel’s costs of the investigation together with the costs of the Tribunal (amounting to a further £305,814).

Elizabeth Barrett, Executive Counsel, said:

‘The scale and range of the sanctions imposed by the Tribunal mark the gravity of the Misconduct in this matter. The decision serves as an important reminder of the need for all Members of the profession to act with Integrity and Objectivity and of the serious consequences when they fail to do so.’

The report of the Tribunal is not published at this time.

The Accountancy Scheme was amended from 1st January, 2021 to remove from its jurisdiction all insolvency work (including restructuring advice, preparation for formal appointments and work consequent to formal appointments) carried out by members of the professional bodies who are licensed by those bodies as insolvency practitioners.

(Source: www.frc.org.uk, dated 5th August, 2021)

STATISTICALLY SPEAKING

RIGHT TO INFORMATION (r2i)

PART A | DECISION OF SUPREME COURT

Political parties must publish criminal antecedents of candidates within 48 hours of their selection1
 

Case name:

Brajesh Singh vs. Sunil Arora & Ors.

Citation:

Contempt Petition (Civil) No. 656 of 2020
in Contempt Petition (Civil) No. 2192 of 2018 in WP (Civil) No. 536 of 2011
with M.A. Diary No. 2680 of 2021

Court:

The Supreme Court of India

Bench:

Justice Rohinton Fali Nariman and
Justice B.R. Gavai

Decided on:

10th August, 2021

Relevant Act / sections:

Section 8 of the Right to Information Act, 2005

Decision:
• With the objective of decriminalisation of politics, the Supreme Court directed that the political parties must publish the criminal antecedents, if any, of the candidates within 48 hours of their selection.
• The Court has also directed the Election Commission of India (ECI) to create a dedicated mobile application containing information published by candidates regarding their criminal antecedents, so that at one stroke every voter gets such information on his / her mobile phone.
• Further, the Court has directed the political parties to publish information regarding the criminal antecedents of their candidates on the homepage of their websites, thus making it easier for the voter to get to the information that has to be supplied, and to have on the homepage a caption which states ‘Candidates with criminal antecedents’;
• The ECI was told to carry out an extensive awareness campaign to make every voter aware about his right to know and the availability of information regarding the criminal antecedents of all contesting candidates. The campaign will be carried out across various platforms, including social media, websites, TV ads, prime time debates, pamphlets, etc. Further, a fund must be created for this purpose within a period of four weeks into which fines for contempt of court may be directed to be paid.
• For the aforesaid purposes, the ECI was also directed to create a separate cell which will also monitor the required compliances so that the Apex Court can be apprised promptly of non-compliance by any political party of the directions contained in the Court’s orders as fleshed out by the ECI in instructions, letters and circulars issued in this behalf.

PART B | VACANCIES IN SICs AND PENDING PLEAS

The Supreme Court of India had, while hearing a matter in 2019 on pendency and vacancies in the State Information Commissions (SICs), ordered timely and transparent appointment of Information Commissioners to the respective Commissions set up under the RTI Act, 2005.

A bench of Justices S. Abdul Nazeer and Krishna Murari heard a petition on 18th August, 2021 regarding delay in appointment of Information Commissioners under the RTI Act. During the hearing, it was pointed out that despite the Court ruling, the Union of India and several States had failed to fill the vacancies in their Information Commissions, leading to a large number of pending cases and long delays in the disposal of appeals / complaints.

Information regarding vacancies in some States was provided as below through an additional affidavit:

Maharashtra
In February, 2019 the SC had directed the State to ensure that the Information Commission functions at full strength (one Chief and ten Information Commissioners) given the large backlog of appeals and complaints. However, as on date the commission was functioning with only four Commissioners even though the pendency as of 31st May, 2021 stood at more than 75,000 appeals / complaints. The bench pulled up the State of Maharashtra for not filling the vacancies on the SIC and warned that the Chief Secretary will be summoned if the State fails to fill the vacancies within three weeks.

Karnataka
In 2019, the SC had directed that the SIC should function at full strength for which the Government must sanction all posts. While the State had sanctioned all posts, however, at the hearing it was pointed out that currently three posts are vacant even though there is a backlog of more than 30,000 appeals / complaints. The SC directed the State to fill the vacancies and file a status report.

Odisha
The SC had directed the State of Odisha in 2019 to sanction three additional posts so that the Commission can function with one Chief and six Information Commissioners, given the backlog of cases. In the hearing it emerged that the State had sanctioned only two additional posts and currently the Commission was functioning with only four Commissioners. One post had fallen vacant in November, 2020 and was yet to be filled up, while the Chief had retired on 15th August, 2021. The SC directed the Government to file a status report.

Telangana
The SIC of Telangana has been functioning without a Chief for one year despite the fact that the RTI Act envisages a crucial role for the Chief as the general superintendence, direction and management of the affairs of the SIC vests in the Chief. The SC expressed disappointment at the state of affairs and directed that the appointment should be made by the next date of hearing.

Nagaland
It was highlighted that the previous SIC Chief had retired in January, 2020 and since then no new Chief had been appointed. As a result, for 19 months the Commission has been headless. The State was directed to fill the vacancy and file a status report.

West Bengal
In its February, 2019 judgment, the SC had directed the State Government to create three posts of Commissioners in addition to the sanctioned strength of three (one Chief and two Information Commissioners). During the hearing it was pointed out that currently the Commission is functioning with only two commissioners (one Chief and one Information Commissioner) although nearly 10,000 appeals / complaints are pending before it. The SC pulled up the State Government for failing to file an affidavit before the hearing and for not filling the vacancies.

Jharkhand
The Government of Jharkhand was not a respondent in the case, but it was pointed out that the condition of the Information Commission was alarming as it had been effectively rendered defunct since May, 2020 when the lone Information Commissioner retired. Since then no Information Commissioner or Chief has been appointed and the Commission has been non-functional with people seeking information from public authorities under the jurisdiction of the Jharkhand SIC having no recourse to the independent appellate mechanism prescribed under the RTI Act. The SC expressed anguish at the current state of affairs and directed the State to fill the vacancies and also file a report.

It will be worthwhile to understand the submissions made by the Union of India and the State governments regarding the vacancies and pendencies2.

PART C | PART C I INFORMATION ON AND AROUND

• RTI reveals Income-tax department, Pune, rejected 90% applications for Section 80G / 12A approval
CA M.L. Baheti moved an RTI application on 9th July, 2021 before the Income-tax Department, Pune, to identify how many 80G / 12A applications had been approved by the Department. The reply to the application revealed that around 90% of the applications filed by an NGO had been rejected for the reasons best known to the Department. Data was obtained for the period from 1st April, 2019 to 31st March, 2021 in respect of the number of applications filed and approved and shows the following alarming facts:

  

 

Applications

u/s 12A

%

Applications

u/s 80-G

%

Applications filed

4,881

100

2,070

100

Applications approved

355

7.27

379

18.30

Applications rejected

2,471

50.62

961

46.42

Unexplained applications

2,055

42.10

730

35.26

This is the situation of Pune Zone alone, leave aside the entire country. From the above it is clear that the applications for approval of a majority, i.e., 80 to 90%, of cases are being rejected. This non-transparency of the Department has become a hurdle for charitable trusts and NGOs as the whole country is moving from the Covid-19 pandemic situation where the role of NGOs and fast approval for 80-G is very important3.

• Odisha Information Commission brings major private university under RTI purview
The Odisha State Information Commission has declared Kalinga Institute of Industrial Training (KIIT), a deemed university and one of the State’s largest private institutions, as a public authority, which means the university has to furnish information under the Right To Information Act4.

• No authority can force RTI applicant to submit ID
Haryana’s State Information Commission has held that no authority in the State can force an RTI applicant to file the application in a particular format and to disclose any reason for seeking information. The Commission observed that the RTI Act, 2005 is a Central Act and section 6(2) allows an applicant to conceal his / her identity and to seek information without giving any reason5.

• Uttar Pradesh Government spent Rs. 160 crores on TV ads in one year
The Uttar Pradesh Government spent a staggering Rs. 160.31 crores on advertisements on TV news channels between April, 2020 and March, 2021, reveals a right to information reply by the State Government. The RTI divided the State’s ad expenditure into ‘national TV news channels’ and ‘regional TV news channels’. The former got Rs. 88.68 crores and the latter Rs. 71.63 crores6.

• Maharashtra Government spent Rs. 155 crores on publicity campaigns in 16 months
The Directorate-General of Information and Public Relations has informed an RTI activist that Chief Minister Uddhav Thackeray’s Mahavikas Aghadi Government has spent Rs. 155 crores on publicity campaigns in the last 16 months. About Rs. 5.99 crores has been spent on social media and Rs. 9.6 crores on publicity campaigns7 every month.

_____________________________________________________________________

1 https://www.livelaw.in/pdf_upload/criminal-antecedents-judgment ll2021sc367-398294.pdf
2    https://drive.google.com/file/d/1H-5CogZc0TejH3Zrya4wk5TzXmNI1Ux5/view https://www.counterview.net/2021/08/sc-pulls-up-state-govts-for-choking.html
3    https://taxguru.in/income-tax/rti-reveals-department-rejects-90-per-cent-applications-section-80g-12a-approval.html
4    https://www.thehindu.com/news/national/other-states/odisha-information-commission-brings-major-private-university-under-rti-purview/article36008135.ece
5    https://www.outlookindia.com/newsscroll/no-particular-format-required-to-file-rti-haryana-information-commission/2138675
6    https://www.newslaundry.com/2021/07/21/yogi-government-spent-rs-160-crore-on-tv-ads-in-one-year-network18-hits-the-jackpot
7    https://www.indiatoday.in/india/story/rti-reveals-maharashtra-government-spent-rs-155-crore-on-publicity-campaigns-in-16-months-1823805-2021-07-04

ETHICS AND U

Arjun: (Chants Shrikrishna’s bhajan) ‘Hey Bhagwan. You are so kind! Where are you today? Please come and give me your ‘darshan’.

Shrikrishna: Arrey Parth, what happened to you today? You are in such a happy mood. Did your Government give further extension of time?

Arjun: No, Lord. But they will have to give it. Their own site is not working for the last many days. The new utility has gone for a toss.

Shrikrishna: Really? But the system was working all right till recently.

Arjun: Yes, but they suddenly thought of changing the system. They engaged a new service provider for a huge amount of money. And nothing is working well. It’s totally in a mess.

Shrikrishna: Anyway, let it be. Tell me, why are you so happy today?

Arjun: I got a good audit assignment. Two directors of a big private limited company approached me today through a common friend.

Shrikrishna: Oh, I see. What for?

Arjun: They offered me the statutory and tax audit of the company. They say they are not happy with their present CA.

Shrikrishna: Why?

Arjun: He takes a long time to complete the work, charges exorbitant fees and harasses them in tax matters.

Shrikrishna: Do you know their existing CA?

Arjun: Not directly. But I have heard that firm’s name. They are quite large in size. They have a good name.

Shrikrishna: So when will you take up the work?

Arjun: Immediately. They want it urgently as they are going for a new project. The two directors are giving the appointment letter tomorrow itself.

Shrikrishna: Very good. But you will have to write to the previous auditor.

Arjun: Yes. Actually, I called one of their partners who has signed the last year’s audit.

Shrikrishna: What did he say?

Arjun: He said ‘No problem, please go ahead’. I asked for his NOC. He said not to worry. They were not very keen to retain that audit. The formalities can be done later.

Shrikrishna: So, starting the work immediately?

Arjun: Of course! Why should I leave the opportunity? They are paying a good fee and during Covid I have a liquidity crunch.

Shrikrishna: Arjun, I doubt whether you are the same Arjun to whom I narrated the Bhagwad Gita in the Mahabharata.

Arjun: Why? What makes you think that way?

Shrikrishna: That Arjun was very intelligent, brave, honest and ethical. You are behaving the exact opposite way. All my preachings on ethics have gone to waste.

Arjun: I don’t understand. I did speak with the previous auditor. Only then I decided to start the work. They need it urgently.

Shrikrishna: They may need it. But what about your ethics? How can you compromise on them?

Arjun: I will definitely write to them. Now our Institute has permitted communication by email also. Who has time to wait for registered post AD?

Shrikrishna: My dear Arjun, your intellect seems to be covered by ‘moha’. You are not able to use your discretion and are forgetting your duty.

Arjun: Why do you say that?

Shrikrishna: Firstly, you should think why such a large company would approach you at the last moment. Are the reasons given by them convincing? Did you verify the facts?

Arjun: I am aware that these so-called large CA firms do not render proper service. So, their clients are never happy.

Shrikrishna: But have they resigned? Or have they been removed?

Arjun: But the directors are giving me a regular letter of appointment. I will take a copy of the resolution if you suggest so.

Shrikrishna: Arjun, will it suffice? Please read Clause (9) of Part 1 of the First Schedule to your CA Act. You must ensure compliance with the Company Law provisions on change of auditors.

Arjun: Like what?

Shrikrishna: Their resignation, the reasons for the resignation, then calling of EGM. Its notices, minutes, attendance register… Don’t take it so lightly.

Arjun: But many people accept just an appointment letter from the directors.

Shrikrishna: Then they are sure to invite trouble for themselves. Be loyal to your profession. Clients take advantage of the lack of unity in your profession.

Arjun: Then what should I do?

Shrikrishna: Ensure all secretarial compliances, better take a certificate from a CS. Verify the papers for yourself. And what about the previous auditor’s fee? If the undisputed audit fees are pending, then you can’t accept the audit.

Arjun: But the directors are disputing the fees. They say he charged too much!

Shrikrishna: But once their fee is appearing as outstanding in the balance sheet and it is signed by the directors, it is treated as undisputed. The subsequent dispute is irrelevant.

Arjun: Where is this written?

Shrikrishna: See your Council’s Guidelines of 8th August, 2008 – Chapter VII.

Arjun: But their partners have assured me they have no objection.

Shrikrishna: This is dicey. Never accept such things just in good faith. We are in kaliyug.

Arjun: Thanks for opening my eyes. I will tell the client…

Shrikrishna: Actually, this is a very elementary thing. It is unfortunate that your ‘lobha’ (temptation) made you forget this lesson.

Arjun: But this is all unnecessary. Why do they create hurdles?

Shrikrishna: Arjun, you are mistaken. Imagine that you are in the position of the previous auditor. And some client criticises you, approaches another CA, doesn’t pay your fees…

Arjun: Agreed, agreed, agreed! I’ve understood. I remember two of my friends faced a disciplinary case in a similar situation. Good that you cautioned me. Much obliged, Lord!

Shrikrishna: Take care. I have no time to narrate to you the Gita once again!

||Om Shanti||

[This dialogue is based on Clause Nos. (8) and (9) of Part 1 of the First Schedule to the CA Act and Council General Guidelines – Chapter VII]

REGULATORY REFERENCER

DIRECT TAX

1. Extension of due dates for filing various forms – CBDT has extended the time limit for electronic filing of Form No. 15CC, Equalization Levy Statement in Form No. 1, Form No. 64D, Form No. 64C, Form No. 10BBB and Form II SWF due to difficulties faced by assessees in electronic filing of forms and non-availability of the utility for e-filing of forms. [Circular 15 of 2021 dated 3rd August, 2021.]

2. Insertion of Rules 21AI and 21AJ and Forms 10IG and 10IH – Income-tax (21st Amendment) Rules, 2021 – CBDT has inserted Rule 21AI to prescribe the method of calculating exempt income of a specified fund for the purposes of section 10(4D) and Rule 21AJ to determine the income of a specified fund attributable to units held by a non-resident taxable u/s 115AD. [Notification No. 90 of 2021 dated 9th August, 2021.]

3. Insertion of Rule 10RB and Form 3CEEA – Income-tax (23rd Amendment) Rules, 2021 – CBDT has notified new Rule 10RB prescribing the manner for computation of relief in tax payable u/s 115JB(1) due to operation of newly-inserted sub-section (2D) of section 115JB. The assessee is required to make an application in Form 3CEEA electronically to claim relief u/s 115JB(2D). [Notification No. 92 of 2021 dated 10th August, 2021.]

COMPANY LAW

I. COMPANIES ACT, 2013

(I) MCA appoints 1st September, 2021 as the effective date for section 4 of the Companies (Amendment) Act, 2020: Section 4 of the Companies (Amendment) Act, 2020 which amends section 16 of the Companies Act, 2013 shall be effective from 1st September, 2021. As per section 16(3), the Government shall allot a new name to the company as per newly-inserted Rule 33A and the Registrar shall enter the new name in the Register of Companies in place of the old name and issue a fresh certificate of incorporation with the new name which the company shall use thereafter. [Notification No. S.O. 2904(E), dated 22nd July, 2021.]

(II) MCA tweaks norms relating to change in the name of company. Inserts new Rule for allotment of a new name to existing companies u/s 16(3): The MCA has notified the Companies (Incorporation) Fifth Amendment Rules, 2021 whereby a new rule 33A relating to the allotment of a new name to an existing company u/s 16(3) of the Companies Act, 2013 has been inserted. [Notification No. G.S.R. 503(E), dated 22nd July, 2021.]

(III) Government has identified 2,38,223 shell companies between 2018 and 2021: Union Minister of State for Corporate Affairs Rao Inderjit Singh in a written reply to a question in the Rajya Sabha informed that the Government has identified a total of 2,38,223 companies as shell companies between 2018 and 2021. The Minister further stated that the Special Task Force set up to look into the issue of ‘shell companies’ has recommended use of certain red-flag indicators to identify such companies. [Press Release dated 27th July, 2021.]

II. SEBI

(IV) SEBI further extends timelines for compliance with regulatory requirements by Debenture Trustees: In view of the prevailing situation due to the Covid-19 pandemic and representations received from Debenture Trustees, SEBI has decided to further extend the timelines for compliance with the regulatory requirements by them for the quarter / half-year / year ending 31st March, 2021, up to 31st October, 2021. [Circular No. SEBI/HO/MIRSD/CRADT/CIR/P/2021/597, dated 20th July, 2021.]

(V) SEBI issues norms on Mandatory Nomination for Eligible Trading and Demat Accounts: The SEBI has issued norms on Mandatory Nomination for Eligible Trading and Demat Accounts wherein it has specified that the investors opening new trading and / or demat account(s) on or after 1st October, 2021 shall have the choice of providing nomination or opting out of the nomination. In addition, the online nomination and declaration form need to be signed using e-Sign facility. [Circular No. SEBI/HO/MIRSD/RTAMB/CIR/P/2021/601, dated 23rd July, 2021.]

(VI) Top-100 listed entities can have extra time for holding Annual General Meeting: After consideration of the request received from the Institute of Chartered Secretaries of India (ICSI), SEBI has decided to extend the timeline for conduct of AGMs by top-100 listed entities by market capitalisation. Accordingly, such entities can hold their AGMs within a period of six months from the date of closing of the financial year 2020-21. [Circular No. SEBI/HO/CFD/CMD1/P/CIR/2021/602, dated 23rd July, 2021.]

(VII) SEBI asks Registrar and Transfer Agents (RTA) to implement ‘Inter-Operable Platform’ for enhancing investors’ experience in Mutual Fund transactions: In order to make it more convenient for the existing and future investors to transact and avail services while investing in Mutual Funds, SEBI has asked RTA to implement standardised practices and system interoperability amongst themselves to jointly develop a common industry-wide platform that will deliver an integrated, harmonised, elevated experience to the investors across the industry platform. [Circular No. SEBI/HO/IMD/IMD-II DOF3/P/CIR/2021/604, dated 26th July, 2021.]

(VIII) SEBI reduces trading lot size from 100 units to 1 unit in REITs and InvITs: SEBI has notified the Securities and Exchange Board of India (Infrastructure Investment Trusts) Regulations, 2014 and the Securities and Exchange Board of India (Real Estate Investment Trusts) (Amendment) Regulations, 2021 wherein provisions related to minimum application value and trading lots have been amended. The minimum application value will be in the range of Rs. 10,000 to Rs. 15,000 and the trading lot will be of one unit for REITs and InvITs. [Notification No. SEBI/LAD-NRO/GN/2021/28 and No. SEBI/LAD-NRO/GN/2021/27, dated 30th July, 2021.]

(IX) SEBI allows non-scheduled Payments Banks to register as ‘Bankers to an Issue’: SEBI has permitted non-scheduled Payments Banks to register as ‘Bankers to an Issue’ (BTIs). Now, non-scheduled Payments Banks, which have prior approval from RBI, shall be eligible to act as BTIs subject to fulfilment of the conditions stipulated in the BTI Regulations. In addition, a Payment Banks registered as a BTI shall also be permitted to act as a self-certified syndicate bank. [Circular No. SEBI/HO/MIRSD/MIRSD_DOR/P/CIR/605/2021, dated 3rd August, 2021.]

(X) SEBI amends LODR norms to further strengthen independence of Independent Directors: SEBI has notified the Securities and Exchange Board of India (Listing Obligations and Disclosure Requirements) (Third Amendment) Regulations, 2021 provision related to Independent Directors (ID) in order to further strengthen the independence of IDs. Now, the appointment, re-appointment or removal of an independent director of a listed entity shall also be subjected to the approval of shareholders by way of a special resolution. [Notification No. SEBI/LAD-NRO/GN/2021/35, dated 3rd August, 2021.]

(XI) Mutual Funds need to maintain current accounts in multiple banks for ease of doing business: SEBI: Based on the request of the Mutual Fund industry, SEBI has clarified that Mutual Funds should maintain current accounts in an appropriate number of banks for the purpose of receiving subscription amounts and for payment of redemption / dividend / brokerage / commission, etc., to facilitate financial inclusion, convenience of investors and ease of doing business. [Circular No. SEBI/HO/IMD/IMD-I/DOF5/P/CIR/2021/610, dated 4th August, 2021.]

FEMA

(i) The Government has reviewed the FDI policy on the petroleum and natural gas sector and has increased the limit of FDI in PSU oil companies from 49% to 100% under automatic route in cases where ‘in-principle’ approvals for strategic disinvestment of a PSU have been granted by the Government. The changes have been made in the Consolidated FDI Policy Circular of 2020. However, the increase will be effective once corresponding amendments are made in the NDI regulations. [Press Note No. 3 (2021 Series), dated 29th July, 2021.]

(ii) IRDAI had removed the requirement of ‘Indian-owned and controlled’ by way of an Amendment Act from 25th March, 2021. Accordingly, the IRDAI has now withdrawn the guidelines in relation to ‘Indian-owned and controlled’. [Circular No. IRDAI/F&A/CIR/MISC//211/07/2021, dated 30th July, 2021.]

(iii) Overseas investments and acquisition of immovable properties outside India by persons resident in India are still governed by FEMA Regulations 120 and 7(R), respectively. These were under review since quite some time. RBI has now put out drafts for FEM (Non-debt Instruments – Overseas Investment) Rules, 2021  and FEM (Overseas Investment) Regulations, 2021. Comments / feedback on the draft rules / regulations are invited from all stakeholders till 23rd August. There are quite a few important changes proposed in the draft regulations. [Press Release: 2021-2022/661 dated 9th August, 2021.]

ICAI ANNOUNCEMENTS

Extension of validity of Peer Review Certificate (PRC) having original expiry date falling anytime from 1st to 31st July, 2021 has been extended till 31st August, 2021 in cases where no extension benefit has been availed as per any of the earlier ICAI announcements. [22nd July, 2021.]
Deferred provisions of Volume-I of Revised Code of Ethics, 2019, namely, ‘Responding to Non-Compliance with Laws and Regulations’ (NOCLAR), fees – relative size and tax services to audit clients is made applicable and effective from 1st April, 2022. [26th July, 2021.]

ICAI MATERIAL

Corporate Laws
• Handbook on Claims under the Insolvency and Bankruptcy Code, 2016. [6th August, 2021.]
• Handbook on Do’s and Don’ts for IPs under the Insolvency and Bankruptcy Code, 2016. [13th August, 2021.]

Valuation
•    Booklets on valuation:

  •     Learnings from Judicial Pronouncements on Valuation – How Far the Verdicts and Findings Relevant Now? [13th August, 2021.]
  •     ESOP Valuation – Model and Issues. [13th August, 2021.]
  •     Valuation of Startups. [13th August, 2021.]
  •     Learnings from the Observations of Peer Review of Valuation Reports. [13th August, 2021.]

CORPORATE LAW CORNER

15 Chandrasekar Muruga vs. Registrar of Companies (TN) Company Appeal (AT) No. 76 of 2019 (NCLAT) [2019] 151 CLA 366 Date of order: 29th May, 2019

Where name of the Company is struck off due to non-filing of financial documents but it is found that significant accounting transactions were undertaken during the relevant period and the Company being in operation was carrying on business, the name of the Company is to be restored in the Register

FACTS
The shareholders and directors of M/s MPC India Private Limited (‘M/s MPC’) had filed an instant appeal against the order dated 20th February, 2019 by which the National Company Law Tribunal at Chennai (‘NCLT’) declined to restore the name of M/s MPC in the Register of Companies as maintained by the Office of the Registrar of Companies (‘ROC’) on the ground of failure to file its financial statements and annual returns with the ROC from the financial years 2009-10 to 2017-18.

The NCLT observed that since M/s MPC had not filed financial statements and annual returns for the F.Ys. 2009-10 to 2017-18, there was no adequate reason to restore the company’s name. Therefore, there was no scope to grant an order for restoration of the name in the Register of Companies.

However, the NCLT noted the submission made by M/s MPC that the balance sheet was prepared and Annual General Meetings were held on time and duly signed by the respective directors but for reasons unknown the officials concerned failed to upload the same. NCLT also admitted that the Income-tax Returns and bank statements submitted by M/s MPC show that there have been significant accounting transactions during the aforesaid period.

The order was challenged primarily on the ground that the ROC had improperly exercised jurisdiction u/s 248 of the Companies Act, 2013 and the NCLT failed to notice that the parameters as set out in section 252(3) of the Companies Act, 2013 had been satisfied by M/s MPC.

HELD
The NCLAT observed that M/s MPC was struck off by the ROC on the ground of non-filing of financial statements and annual returns for the financial years 2009-10 to 2017-18, though it was not disputed that it had filed Income-tax Returns and bank statements for the A.Ys. 2008-09 to 2017-18, which demonstrated significant accounting transactions during the aforesaid period.

NCLAT further observed that it was futile to address the issue of non-adherence to the procedural requirements on the part of the ROC in striking off the name of the company within the ambit of section 248 of the Companies Act, 2013 and the fact was observed in the order that the NCLT had overlooked the factum of the significant accounting transactions admittedly undertaken by M/s MPC during the relevant period justifying no conclusion other than that M/s MPC was in operation and carrying on business.

Accordingly, the NCLAT held that the findings recorded by the NCLT being erroneous cannot be supported and the same were liable to be reversed and a just ground existed for restoration of the name of the company. The appeal was accordingly allowed, the order set aside and the ROC directed to restore the name of M/s MPC subject to statutory compliances being filed together with the prescribed fees and penalties leviable thereon as mandated by law.

16 M/s Vintage Hotels Private Limited & Ors. vs. Mr. Ahamed Nizar Moideen Kunhi Kunhimahin Company Appeal (AT) No. 408 of 2018 (NCLAT) Source: NCLAT Official Website Date of order: 12th November, 2020

The discretionary power of directors to refuse ‘Transfer of Shares’ is not to be resorted to in a deliberate or arbitrary fashion but in good faith – The directors are to give due weightage to shareholder’s right to transfer his share

FACTS
Mr. K was an existing shareholder and also one of the Directors of M/s Vintage Hotels Private Limited (‘VHPL Company’). It was learnt from the contents of the affidavit of Mr. TH dated 10th April, 2015 that he was holding 20,000 equity shares of Rs. 100 each of the company and that he had transferred the aforesaid shares to Mr. K and further that the share certificates were lost and were not in his possession. The deponent (Mr. TH) had averred that he had made a request to VHPL Company to issue duplicate share certificates in lieu of the original share certificates in the name of Mr. K.

The VHPL Company, through its communication dated 30th October, 2015, had rejected the request for transfer of shares in the name of Mr. K. The company submitted that in the share transfer form SH-4 furnished by Mr. K the distinctive numbers of the shares were not mentioned, the corresponding share certificate numbers were not mentioned, the witness’s signature and name was not found and the transferee’s details were not mentioned. Further, the allotment letter or the ‘Original Share Certificate’ was not enclosed with the share transfer form.

Mr. K also contended that the board of directors had not issued the duplicate share certificates even though a request was made by him.

The NCLT Bengaluru bench via an order dated 16th October, 2018 after considering the facts and circumstances of the case and also taking into consideration the existing law, came to the conclusion that the action of VHPL Company in refusing to transfer the shares in favour of Mr. K was an arbitrary and unjustifiable one and consequently issued a direction to VHPL Company to rectify the register of shareholders by incorporating the name of Mr. K in place of Mr. T.H in respect of the 20,000 equity shares under transfer.

The VHPL Company was aggrieved by the order passed by the NCLT which directed it to register the transfer of shares in favour of Mr. K.

HELD
The NCLAT observed that the discretionary power to refuse ‘Transfer of Shares’ was not to be resorted to in a deliberate, arbitrary, fraudulent, ingenious or capricious fashion. As a matter of fact, the directors were to exercise their discretion in good faith and to act in the interest of the company. The directors were to give due weightage to the shareholder’s right to transfer his shares. When the original share certificates are lost, it is not prudent for VHPL Company to insist upon the production of the original share certificates in question to give effect to the transfer of shares. Thus, NCLAT upheld the order passed by the NCLT, Bengaluru bench and dismissed the appeal.

17 Ghanashyam Mishra & Sons (P) Ltd. vs. Edelweiss Asset Reconstruction Co. Ltd. Supreme Court of India [2021] 126 Taxmann.com 132 (SC)

CASE NOTE
Amendment to section 31 by IBC (Amendment) Act, 2019 is declaratory and clarificatory in nature Central Government, any State Government or any local authority to whom an operational debt is owed would come within ambit of ‘operational creditor’ as defined under sub-section (20) of section 5

FACTS
Insolvency proceedings were initiated by State Bank of India u/s 7 of the Insolvency and Bankruptcy Code (IBC) before the National Company Law Tribunal, Kolkata bench.

In response to the invitation made by the resolution professional for a resolution plan, three resolution plans were received, one each from Edelweiss Asset Reconstruction Company Limited (EARC), Orissa Mining Private Limited (OMPL) and Ghanashyam Mishra & Sons Private Limited (GMSPL).

The GMSL resolution plan was duly approved with the voting share right of more than 89.23%.

QUESTIONS OF LAW INVOLVED
Whether after approval of the resolution plan by the Adjudicating Authority a creditor including the Central Government, State Government or any local authority is entitled to initiate any proceedings for recovery of any of the dues from the corporate debtor which are not part of the resolution plan approved by the Adjudicating Authority.

Whether any creditor, including the Central Government, State Government or any local authority is bound by the resolution plan once it is approved by the Adjudicating Authority u/s 31(1) of the Code.

Whether the amendment to section 31 is clarificatory / declaratory or substantive in nature.

HELD BY THE SUPREME COURT
The Government is covered under the definition of creditor under the IBC. The Court, through a harmonious construction of the definition of operational creditor, operational debt and creditor, observed that even a claim in respect of the dues arising under any law for the time being in force and payable to the Central Government, any State Government or any local authority would come within the ambit of operational debt.

The operational debt owed to the Central Government, any State Government or any local authority would come within the ambit of operational creditor. Similarly, a person to whom a debt is owed would be covered by the definition of creditor.

The Supreme Court further observed that the claims as mentioned in the resolution plan shall stand frozen and will be binding on the corporate debtor and its employees, members, creditors, including the Central Government, any State Government or any local authority, guarantors and other stakeholders, once a resolution plan is duly approved by the NCLT u/s 31(1) of the IBC.

Consequently, all the dues, including the statutory dues owed to the Central Government, State Government or any local authority if not part of the resolution plan, shall stand extinguished and proceedings in respect of such dues for the period prior to the date on which the Adjudicating Authority grants its approval u/s 31 cannot be continued.

The Court further observed that the section 31 amendment of the IBC is clarificatory in nature and therefore will come into effect from the date on which the IB Code came into effect.

ALLIED LAWS

23 Laureate Buildwell (P) Ltd. vs. Charanjeet Singh 2021 SCC OnLine SC 479 (SC) Date of order: 22nd July, 2021 Bench: U.U. Lalit J, Hemant Gupta J and S. Ravindra Bhat J

Consumer protection – Consumer – Real estate – Subsequent purchaser from original allottee – Same rights against builder [Consumer Protection Act, 1986, S. 2]

FACTS
One Ms Madhabi Venkatraman, the original allottee, applied for allotment of a residential flat. According to the allotment letter, the possession of the flat was to be handed over within 36 months. Upon noticing the slow construction, the original allottee decided to sell the flat. The purchaser (respondent) who was in search of a residential flat was approached by the original allottee through a broker. He was assured that the possession of the flat would be delivered on time and he agreed to purchase the flat. The purchaser alleged that possession was not delivered as promised in the allotment letter. The original allottee requested the builder (appellant) to transfer the flat in favour of the respondent.

The respondent was informed that possession of the said flat could not be delivered till the end of year 2017. After this, the purchaser sought for refund of the amount paid from the builder. On refusal of the payment of instalment, the officials of the builder threatened the purchaser with cancellation and forfeiture of the amounts paid. In these circumstances, the appellant approached the National Consumer Disputes Redressal Commission (NCDRC).

The NCDRC allowed a refund with 10% interest and imposed cost on the respondent. The respondent is in appeal against the said order.

HELD
The original allottee had approached the builder, informing him that the purchaser had stepped into her shoes and would continue with the obligations and was therefore entitled to possession. Subsequently, the builder endorsed and even required the purchaser to execute the letter of undertaking, which he did. Thereby, the builder acknowledged that the rights and entitlements of the original  allottee were assumed by the purchaser and also confirmed his own obligations to the new purchaser (the consumer).

The definition of ‘consumer’ under the Act is very wide and it includes beneficiaries who can take benefit of the insurance availed by the insured. If one also considers the broad objective of the Consumer Protection Act, it is to provide for better protection of the interests of consumers. Therefore, a subsequent purchaser of a flat has the same rights as the original allottee.

24 Dena Bank vs. C. Shivakumar Reddy Civil Appeal No. 1650 of 2020 (SC) Date of order: 4th August, 2021 Bench: Indira Banerjee J and V. Ramasubramanian J

Additional documents – Insolvency application – Can be admitted later [Insolvency and Bankruptcy Code, 2016, S. 7]

FACTS
The bank sanctioned a term loan to the Corporate Debtor which was to be repaid in 24 quarterly instalments. Upon failure on the part of the Corporate Debtor to repay, the Bank initiated proceedings under Insolvency and Bankruptcy Code (IBC) before the National Company Law Tribunal (NCLT).

During the IBC proceedings, on two occasions the bank filed applications to place new documents on record. Both the applications were allowed. Pursuant thereto, the NCLT passed an order admitting the application of the bank.

The Corporate Debtor challenged the order before the NCLAT and succeeded. Aggrieved by the order of the NCLAT, the bank approached the Supreme Court.

HELD
The Supreme Court, inter alia, held that on a careful reading of the provisions of the IBC, and in particular the provisions of section 7(2) to (5) read with the 2016 Adjudicating Authority Rules, there is no bar to the filing of documents at any time until a final order either admitting or dismissing the application has been passed. The time stipulation of 14 days in section 7(4) to ascertain the existence of a default is apparently directory and not mandatory. The proviso inserted by an amendment with effect from 28th December, 2019 provides that if the Adjudicating Authority has not ascertained the default and passed an order under sub-section (5) of section 7 of the IBC within the aforesaid time, it shall record its reasons in writing for the same. No other penalty is stipulated.

Furthermore, the proviso to section 7(5)(b) of the IBC obliges the Adjudicating Authority to give notice to an applicant to rectify the defect in its application within seven days of receipt of such notice from the Adjudicating Authority, before rejecting its application under Clause (b) of sub-section (5) of section 7 of the IBC. When the Adjudicating Authority calls upon the applicant to cure some defect, that defect has to be rectified within seven days. There is no penalty prescribed for inability to cure the defects in an application within seven days from the date of receipt of notice, and in an appropriate case the Adjudicating Authority may accept the cured application even after the expiry of seven days to meet the ends of justice.

Therefore, there is no bar in law to the amendment of pleadings in an application u/s 7 of the IBC, or to the filing of additional documents, apart from those initially filed along with the application u/s 7 of the IBC in Form-1. In the absence of any express provision which either prohibits or sets a time limit for filing of additional documents, it cannot be said that the Adjudicating Authority committed any illegality or error in permitting the appellant bank to file additional documents.

25 South Eastern Coalfields Ltd. vs. S. Kumar’s Associates AKM (JV) 2021 SCC OnLine SC 486 Date of order: 23rd July, 2021 Bench: Sanjay Kishan Kaul J and  Hemant Gupta J

Letter of intent – No binding relation – Forfeit the bid security amount [Indian Contract Act, 1872, S. 3, S. 7]

FACTS
In June, 2009, South Eastern Coalfields Ltd. (the appellant) floated a tender. The respondent was the successful bidder amongst others. A Letter of Intent (LOI) was issued by the appellant awarding the contract for a total work of Rs. 387.4 lakhs.

The respondent, in pursuance of the LOI, mobilised resources at the site. The respondent apparently faced difficulties soon thereafter as the truck-mounted drill machine employed by it suffered a major breakdown. The work, thus, had to be suspended for reasons beyond the control of the respondent. The endeavour to rectify the position or arrange alternative machinery did not work out and the purchase of new machines was expected only after about three months.

The contractual relationship apparently deteriorated. The appellants issued a letter alleging breach of terms of contract and the applicable rules and regulations by the respondent. The appellant further asked the respondent to show cause as to why penal action be not initiated for – (a) termination of work; (b) blacklisting of the respondent company; and (c) award of execution of work to another contractor at the cost and risk of the respondent. Subsequently, the final termination of work was carried out vide letter dated 15th April, 2010.

The respondent filed a writ petition under Articles 226 and 227 of the Constitution of India seeking quashing of the termination letter dated 15th April, 2010. The Division Bench of the Chhattisgarh High Court opined that there was no subsisting contract inter se the parties to attract the general terms and conditions as applicable to the contract.

The appellant filed a Special Leave Petition against the said order.

HELD
None of the mandates was fulfilled except that the respondent mobilised the equipment at the site; the handing over of the site and the date of commencement of the work was also fixed. The respondent, thus, neither submitted the Performance Security Deposit nor signed the Integrity Pact. Consequently, the work order was also not issued nor was the contract executed. Thus, the moot point would be whether mobilisation at the site by the respondent would amount to a concluding contract inter se the parties. The answer to the same would be in the negative. Therefore, all that the appellants can do is to forfeit the bid security amount.

26 Edelweiss Asset Reconstruction Co. Ltd. vs.  TRO and Ors. WP(L) No. 7964 of 2021 Date of order: 28th July, 2021 Bench: S.P. Deshmukh J and Abhay Ahuja J

Recovery of dues – Priority of debtor – Secured creditor would have priority over Government dues [SARFAESI Act, 2002, S. 13(2)]

FACTS
The petitioner, as assignee of right, title and interest of the credit facilities to one Classic Diamonds (India) Ltd. (the borrower, now in liquidation) purporting to have a superior secured and prior charge in time over the attached properties, having commenced proceedings under the SARFAESI / Securitisation Act by issue of notices under sections 13(2) and 13(4) and having taken possession of one of the attached properties (as will be described hereinafter), is aggrieved by the order of attachment dated 17th January, 2013 passed by the respondent, i.e., the Tax Recovery Officer (TRO), seeking recovery of income tax dues of the borrower.

The moot issue arising herein is whether the secured debt assigned in favour of the petitioner has a priority over Government dues / tax dues.

HELD
Relying on the decision of the Supreme Court in the case of Bombay Stock Exchange vs. V.S. Kandalagaokar (2015) 2 SCC 1 and the decision in the case of State Bank of India vs. State of Maharashtra and Ors. (2020) SCC OnLine Bom 4190, the Court held that the charge of the secured creditor would have priority over the Government dues under the Income-tax Act. There is no provision in the IT Act which provides for any paramountcy of the dues of the IT Department over secured debt.

Service Tax

I. TRIBUNAL

25 Khushboo Beauty Care vs. CCE&ST, Daman [2021-TIOL-467-CESTAT-Mum] Date of order: 27th July, 2021

When it is established that the goods are received by the appellant job-worker, credit should be allowed even if the Bill of Entry is in the name of the principal supplier

FACTS
The issue involved in the present case is whether the appellant is entitled to CENVAT credit on the strength of the Bill of Entry which was in the name of the supplier of the raw material, whereas the goods were received by the appellant as a job-worker and used in the manufacture of goods on job-work basis.

HELD
The Tribunal noted that right from the show cause notice, the case of the Department is only whether the appellant is entitled for CENVAT credit on the strength of the Bill of Entry which is in the name of the principal supplier along with the declaration given by the supplier. The Tribunal finds that there is no dispute about the receipt and the use of the goods supplied under the cover of the Bill of Entry along with the declaration in favour of the appellant. Even though the Bill of Entry is in the name of the supplier, but on the basis of the declaration it is established that the material has been supplied to the appellant for job work, therefore, merely because the Bill of Entry bears the name of the supplier, CENVAT credit cannot be denied to the appellant.

26 M/s NSSL Pvt. Ltd. vs. Commissioner of Central Excise [2021-TIOL-469-CESTAT-Mum] Date of order: 3rd August, 2021

Refund of service tax paid under reverse charge after 1st July, 2017 is available in accordance with the provisions of the erstwhile statute by virtue of section 142(3) of the CGST Act

FACTS
The appellant filed a refund application claiming refund of service tax paid by it under the Reverse Charge Mechanism. The refund application was rejected on the ground that ITC can only be claimed under GST / CGST Act, 2017 and not otherwise. The Commissioner (Appeals) relied upon sub-section (8)(a) of section 142 of the CGST Act, 2017 to reject the refund application which deals with assessment and adjudication.

HELD
The Tribunal noted that the appellant is not falling within the scope and ambit of sub-section (8)(a) of section 142 inasmuch as no assessment / adjudication orders were passed by competent authorities in determining the tax liability, which the appellant was required to pay under the erstwhile statute. Actually, the case of the appellant is governed under provisions of sub-section (3) of section 142 which provides that every claim of refund filed after the appointed day shall be disposed of in accordance with the provisions of the erstwhile statute. The authorities below have not questioned the issue regarding the entitlement of the CENVAT credit under the erstwhile CENVAT statute. On careful examination of the statutory provisions, it is held that the refund claims should merit consideration under the provisions of sub-section (3) of section 142 and, as such, the appellant should be entitled to the benefit of refund of service tax paid by it.

GOODS AND SERVICES TAX (GST)

I. HIGH COURT

23 Hindustan Unilever Ltd. vs. UOI [2021 (49) GSTL 292 (Mad)] Date of order: 12th July, 2021

Petitioner cannot be denied relief merely due to technological limitations of ICES system (Customs Portal)

FACTS

The petitioner had filed 87 bills of entry before the Chennai Customs Authority for import of raw materials required for the manufacture of various toiletries / fast-moving goods. With the advent of GST, in order to facilitate the seamless flow of input tax credit (ITC) of IGST, the GSTIN was required on the bill of entry. At the time of filing the bills of entry, instead of quoting the GSTIN of Tamil Nadu, the petitioner had inadvertently quoted the GSTIN of Maharashtra, Puducherry and Karnataka. Therefore, to avoid the challenge of ITC availment of IGST and to rectify the aforesaid inadvertent errors, the petitioner had filed an application for the amendment of bills of entry u/s 149 of the Customs Act, 1961. In reply to the application, an order was passed by the Customs Authority stating that the ICES system (Customs Portal) is designed in such a way that once the data is transmitted to the GSTN portal, the details of GSTIN cannot be amended. Being aggrieved by this order, the writ petition was filed.

HELD

It was held that the petitioner cannot be denied benefit merely because of the technological limitations of the ICES system. Proper measures must be taken to resolve such technological limitations and the amendments of documents must be considered manually till such technological limitations are resolved.

24 BA Continuum India Pvt. Ltd. vs. UOI [2021 (49) GSTL 370 (Bom)] Date of order: 8th March, 2021

The opportunity of being heard cannot be substituted by telephonic conversations or email exchanges

FACTS

The petitioner was engaged in the business of providing IT and IT-enabled services to various customers located outside India. It had filed five refund applications for claiming refund of the unutilised balance of ITC on account of export of services without payment of tax. As a sequel to the aforesaid refund applications, five identical show cause notices were issued, alleging that the petitioner was facilitating the supply of services between two persons and such services are classifiable as ‘intermediary services’ whose place of supply falls in India. Therefore, the services cannot be considered as export of services. Thus, the refund was liable to be rejected. Due to technical glitches on the GST portal, initially, they (the petitioners) were unable to reply to the notice. The replies were filed through various emails and subsequently uploaded over the GST portal as well.

In the meanwhile, the respondent had called for certain documents. However, due to the pandemic, it was not possible to submit such documents and the petitioner had sought additional time via email. Subsequently, through an email dated 21st April, 2020, the respondent instructed that if documents are not submitted within three days, the matter would be decided ex parte. It also referred to MVAT Circular 3T of 2020 dated 17th March, 2020 which stated that the email reply would be treated as personal hearing. The petitioner made a detailed submission via email and requested a personal hearing before the passing of any adverse order. However, without granting any personal hearing, five identical orders were passed rejecting the refund applications of the petitioner. The petitioner then filed the present writ petition.

HELD


The High Court held that Rule 92 of the CGST Rules, 2017 specifically mandate to grant an opportunity of being heard before rejecting a refund application. Such opportunity of being heard cannot be substituted with mere email exchanges and telephonic conversations. Further, Circular 3T of 2020 dated 17th March, 2020 was issued in the context of MVAT assessment and it cannot be relied upon to dispense with the hearing procedure while rejecting the refund application.

25 Vidyut Majdoor Kalyan vs. State of Uttar Pradesh [2021 (49) GSTL 230 (All)] Date of order: 18th January, 2021

Section 30 of CGST Act, 2017 and Rule 23 of CGST, Rules 2017 – Non-compliance of an order passed by a competent Appellate Authority is neither permitted nor accepted merely because there was no facility on GST portal to restore the GST registration

FACTS
The petitioner had failed to file the monthly returns (GSTR3B) from October, 2017 to June, 2018. Therefore, a show cause notice was uploaded on the GST portal seeking cancellation of its GST registration because of failure to file returns for more than six months. The petitioner was granted seven days’ time to reply to the show cause notice. However, it failed to reply to the same. As a consequence, an order for cancellation of GST registration was passed. Being aggrieved by this order, an appeal was preferred before the Appellate Authority and a favourable order was received directing the respondent to restore the GST registration.

Even after this order, the implementation of restoration of registration was not done on the GST portal. Nothing was brought on record to show that the order passed was illegal or without jurisdiction. The only contention of the respondent for non-compliance of the Appellate Authority’s order was that there was no facility to manually restore a GST registration that was already cancelled. Hence, the present writ petition was filed.

HELD
The High Court held that non-compliance of an order passed by the Appellate Authority cannot be accepted or permitted merely because there was no facility on the GST portal for restoration of a registration that was already cancelled. The Court allowed the writ petition and directed the respondent to restore the registration forthwith.

II. AUTHORITY FOR ADVANCE RULING

26 M/s EVM Motors and Vehicles India Pvt. Ltd. [2021-TIOL-163-AAR-GST] Date of order: 25th May, 2021 (AAR-Kerala)

The transportation of passengers in a house-boat with all the facilities of accommodation and meals is covered under Chapter Heading 996415 liable for GST at 18% – Input tax credit on expenses incurred on refurbishing, maintenance and food is fully allowable

FACTS
The applicant has started a new venture and has acquired house-boats. These are to be used for cruises, both overnight and for day trips. Meals are to be provided as part of the package along with alcohol. The boats are to be furnished with state-of-the-art bedrooms, dining rooms, halls and kitchens. The fare proposed to be charged is an all-inclusive rate for transportation, accommodation, food services and other incidental services. The applicant seeks a ruling on whether the service rendered is covered under Chapter 99, Heading 9964 and Service Code 996415 and whether it is entitled to claim ITC.

HELD
The Authority noted that Heading 9964 pertains to passenger transport services and 996415 pertains to local water transport services of passengers by ferries, cruises and the like. The Explanatory Notes to the Heading 996415 state that the service code includes inland water cruises that include transportation, accommodation, food and other incidental services in an all-inclusive fare. The services rendered squarely fall under the Heading 996415 in view of the Explanatory note, liable to GST at the rate of 18%. The applicant is eligible for ITC in respect of the expenses incurred by it on refurbishing, furnishing, maintaining and repairing the vessel as the supplies are used for providing the taxable outward supply of passenger transport services specified in the exclusion clause in section 17(5)(aa)(i)(B) of the CGST Act. It is also eligible for ITC on the supply of food during the cruise as the supply is an element of the outward taxable supply of passenger transport services and hence covered by the proviso to section 17(5)(b)(i) of the CGST Act.

27 M/s Bindu Projects and Company [2021-TIOL-190-AAR-GST] Date of order: 30th July, 2021 (AAR-Bangalore)

GST rate for repairs and maintenance of residential complex for railway employees is taxable at 12% – Other repair activity for railways will attract GST rate of 18%

FACTS
The applicant has sought a ruling on the applicability of GST rates for works contract services for doing original works with South Western Railways. It submitted that as per the Notification No. 11/2017-Central Tax (Rate) – Serial No. 3(v), the GST rate applicable is 12% if ‘composite supply of works contract as defined in clause (119) of section 2 of the Central Goods and Services Tax Act, 2017 is supplied by way of construction, erection, commissioning of original works pertaining to Railways (including monorail and metro)’. Also, as per the definition of original works provided in clause (zs) of para 2 of Notification No. 12/2017-Central Tax (Rate) dated 28th June, 2017, it is submitted that they are engaged in provision of original works contract services.

HELD
The Authority noted that original works means all new constructions and additions or alterations to abandoned or damaged structures. The Railways is a Central Government Department and hence it is clear that the service provided to them if it is for a purpose other than for business, then the same would be covered under Entry 3(vi) of Notification 11/2017-Central Tax (Rate). However, since the Railways is undertaking the transportation services of goods and passengers, the services provided cannot be considered as for purposes other than business and thus cannot be covered under Entry 3(vi)(a). However, the services of repairs, maintenance, renovation and alterations of residential complex meant for use of the Railway employees are covered under Entry 3(vi) of the Notification and hence eligible for tax of 12%. Thus, new constructions will be charged at a GST rate of 12%; similarly, repairs, maintenance, renovation and alteration of residential complex will attract a GST rate of 12%, and other repair works of old constructions will be taxable at the rate of 18%.

RECENT DEVELOPMENTS IN GST

NOTIFICATIONS

Effective date for operation of sections 110 and 111 of Finance Act, 2021 – Notification No. 29/2021-Central Tax dated 30th July, 2021
The Government has issued the Notification as above whereby sections 110 and 111 of the Finance Act, 2021 (13 of 2021) have been made operative from 1st August, 2021.

Section 110 of the Finance Act was to amend section 35 of the CGST Act and to omit sub-section (5) of the said section. The said section 35(5) was regarding filing of reconciliation statements certified by a CA or Cost Accountant. Now, the said section
gets deleted from the statute and therefore the requirement of filing a reconciliation statement certified by a CA or Cost Accountant is not applicable from 1st August, 2021.

By section 111 of the Finance Act, section 44 was substituted. As per the substituted section, it is now the taxpayer who should file the annual return and self-certified reconciliation statement. This is also applicable from 1st August, 2021.

Amendment to Rules – Notification No. 30/2021-Central Tax dated 30th July, 2021
By the above Notification, the Government has amended Rule 80 of the CGST Rules which provides for filing annual return in form GSTR9, GSTR9A and GSTR9B as per the category of the taxpayer. The important change is that sub-rule (3) of Rule 80 is substituted to remove the reference to audited accounts and section 35(5), etc., since the certification by a CA or Cost Accountant is removed. This is a consequential change in light of the omission of section 35(5).

As per amended Rule 80(3), it is the taxpayer who should furnish a self-certified reconciliation statement in form 9C if his aggregate turnover in a financial year exceeds Rs. 5 crores. There are also some technical changes in forms GSTR9 and GSTR9C.

Exemption from filing Annual Return – Notification No. 31/2021-Central Tax dated 30th July, 2021
By the above Notification, the Government has exempted a registered person from filing his annual return for the F.Y, 2020-21 if his aggregate turnover in the F.Y. 2020-21 is up to Rs. 2 crores.

CIRCULARS
Clarification regarding extension of limitation under GST law vis-à-vis Supreme Court order dated 27th April, 2021 – Circular No. 157/13/2021-GST dated 20th July, 2021
The Supreme Court has issued an order in Miscellaneous Application No. 665 of 2021 in SMW(C) No. 03 of 2020 dated 27th April, 2021. By this order, the Court has extended limitation under any general or special laws in lieu of the on-going Covid-19 pandemic lockdown. The extension is to continue till further orders by the Court. The CBIC has issued the above Circular to clarify the implication of the order in relation to GST. Though the Circular is subject to independent interpretation by the stakeholder, the clarifications issued by CBIC can be noted as under:

a) Proceedings that need to be initiated or compliances that need to be done by the taxpayers: It is clarified that the extension order does not apply to this category.
b) Quasi-judicial proceedings by tax authorities: It is clarified that these proceedings can continue. These proceedings will be governed by extension of time granted by the statutes or Notifications, if any.
c) Appeal by taxpayers / tax authorities against any quasi-judicial orders: It is clarified that for appeals to be filed before any appellate authority or proceedings for revision or rectification required to be undertaken, the time lime for the same would stand extended as per the above Supreme Court order.

Others
As per the information published by GSTN:
a) GSTN has introduced a new functionality whereby the taxpayer can see the Annual Aggregate Turnover (AATO) on its dashboard. Further, it has added more utility functions.
b) The GSTN has also clarified certain issues relating to filing of annual returns by Composition taxpayers, particularly negative liability in GSTR4.

ADVANCE RULINGS
1) Classification – Alcohol-based hand sanitizer
M/s Wipro Enterprises Pvt. Ltd. order No. KAR/AAAR/07/2021 dated 30th June, 2021

This appeal before the Karnataka Appellate Authority for Advance Ruling (AAAR) was borne out of the AR dated 26th February, 2021. In the AR, the rate of tax on the above product was held to be 18%, being covered by HSN 3804.94. The contention of the applicant that it is a medicament and covered by HSN 3004 was not accepted. Aggrieved by the above ruling, this appeal was filed before the AAAR.

The appellant argued that it was holding a drug license under the Drugs & Cosmetics Act, 1940 for manufacturing and selling the above product.

It was further submitted that the product contains 95% v/v ethyl alcohol, which is within the parameters prescribed by the Indian Pharmacopoeia. The quality of the product as an anti-bacterial gel to keep hands clean and protected and having the ability to kill 99.99% of germs was highlighted and, therefore, it was contended to be covered by the category of medicament under HSN 3004. Other literature was also placed before the AAAR and a lower rate was requested.

The AAAR considered the material placed before it but did not agree with the appellant. He concurred with the AAR and confirmed the AR ruling by making observations on merits. The AAAR referred to the common understanding of the terms ‘therapeutic’ and ‘prophylactic’ and observed that ‘therapeutic’ is treatment of disease and ‘prophylactic’ means preventing disease. If the above product has any of above two qualities, it can be a medicament. But the hand sanitizer has no such quality.

It has disinfectant properties as it prevents spread and transmission of germs / bacteria / viruses. However, a sanitizer does not control diseases nor does it help develop preventive characteristics inside the human body to fight the disease caused by the viruses / bacteria. It is used for better hygiene.

Based on the above facts, the product was held to be not medicament and hence not covered under HSN 3004. Accordingly, the AAAR confirmed the AR’s ruling.

2) Construction Service vis-à-vis Works Contract Service
M/s Ashiana Housing Limited (Advance Ruling No. 13/ARA/2021 dated 28th April, 2021)

An unusual question was raised before the Tamil Nadu AAR. Here is a narration of the facts reproduced from the order.

‘The modus operandi they intend to follow in respect of Phases IV and V of the project for provision of construction services to customers is as follows;
* They will enter into a tripartite IOU with all their prospective customers wherein the customer will agree to enter into an agreement for purchase of undivided interest / share in the land (UDS) from the landowner and the applicant in its capacity of Power of Attorney (POA) holder, and subsequently a construction agreement will be executed with the applicant.
* Pursuant to the IOU, the UDS agreement will be executed between the applicant, the landowner and the customer wherein the landowner will agree to sell UDS proportionate to the residential unit sought to be owned by the customer in the real estate project and the customer will further agree to purchase such UDS from the landowner.
* Further, the customer will also enter into a ‘construction agreement’ with the applicant, appointing the applicant to construct the residential unit on the acquired UDS. The landowner will not be a party to this agreement.
* The tripartite IOU, tripartite UDS agreement and construction agreement will be executed only subject to the customer paying 10% of the total consideration for owning a residential unit in the real estate project.
* Lastly, the sale deed for the sale of the UDS by the landowner to the customer will be executed prior to handing over possession of the developed residential unit.’

Based on the above narration of proposed transactions, the applicant has posed the following question for determination by the AAR:

‘Whether the activities of construction carried out by the applicant for its customers under the construction agreement, being composite supply of works contract, are appropriately classifiable under Heading 9997 and chargeable to CGST @ 9% under S. No. 35 of Notification No. 11/2017-CT (Rate) dated 28th June, 2017?’

The main argument of the applicant was that his activity for construction of a unit as per the construction agreement is liable to tax as per SAC 9997 @ 9% CGST being works contract activity covered by para 6(a) of Schedule II and not under SAC 9954 as construction service under para 5(b) of Schedule II. The summarised arguments of the applicant are noted as under:

O Thus, in summary,
* Clause (i) to (id) deals with construction and whereas the present case is one of works contract and also the said clauses deal with construction intended for sale, whereas the present transaction is a Construction for the Customer and consequently not applicable to the present case.
* Clause (ie) and (if) again deal with mere construction and also with on-going projects which had commenced before 31st March, 2019 and accordingly not applicable to the present case.
* Clause (iii) to (ix) deal with specific works contract transaction which does not cover construction of the apartments… accordingly not applicable to the present case.
* Clause (xii) deals with mere construction service and not a works contract service and consequently this clause also does not apply.

O The service proposed to be rendered to customers in respect of Phases IV and V qualifies as a composite supply of works contract service which is classifiable under Heading 9997 and chargeable to CGST @ 9% under S. No. 35 of the Rate Notification since it is not covered in any of the clauses in S. No. 3 of the Rate Notification under 9954.

Per contra, the Revenue (Central Government) stated that the transaction of the applicant involved transfer of land or undivided share of land, as the case may be, and the value of such transfer of land or undivided share of land, as the case may be, in such supply shall be deemed to be one-third of the total amount charged for such supply. It was further highlighted that the supplies for which the applicant has sought advance ruling are squarely covered under S. No. 3 of the said Notification under Heading 9954, which is further sub-divided into different categories attracting different rates of GST depending upon the types of projects. It was submitted that the plea of the applicant to classify their services under Heading 9997 falling under S. No. 35 may not be acceded to.

The AAR, after examining all arguments, agreements and legal provisions, observed as under:

‘8.5 In the case at hand, the applicant supplies the prospective buyer the construction service of the “Unit” intended for purchase by the buyer in the RREP being developed / constructed by the applicant and the contract, i.e., the construction agreement, is entered into for construction of the said “Unit” of the project developed by them. Undoubtedly, construction involves goods such as cement, steel, mortar, etc., as stated by the applicant and for this very reason “Construction of a complex or building or a part” is specifically mentioned to be treated as “Supply of Service” under para 5(b) of Schedule II of the Act. Thus, in the facts of the case, the applicant being a promoter of the approved RREP, the construction of a “Unit” in the said RREP is an activity of construction of part of the building with the intention for sale.’

Regarding the classification of service, the AAR further observed as under:

‘Heading 9954 u/s 5 of the scheme of classification covers “Construction Services” and is a specific entry. Heading 9997 u/s 9 of the scheme of classification covers “Other services-other miscellaneous services” and in that section, SAC 999799-other services nowhere else classified would naturally hold services in relation to the main heading which is community, social or personal services. In the case at hand, the applicant develops RREP along with all the infrastructure and constructs the “Units” of the RREP, i.e., construction of single / multiple dwelling unit and as such it clearly falls under construction services and the contention of the applicant to classify the same under 9997 is thus not entertainable and not tenable under law. Further, it may be noted that even when the service is capable of differential treatment for any purpose based on its description, the most specific description shall be preferred over a more general description. In the case at hand, the most specific description being construction services, the subject activity falls under the SAC 9954 and therefore, the classification of service is “Construction Service” only, for the purpose of Notification No. 11/2017-C.T. (Rate) dated 28th June, 2017 as amended.

8.7 In view of the above, we hold that the supply of service of construction of a “Unit” in the RREP-Phase IV, based on the “Construction agreement” entered into by the applicant, engaged in the development of the said RREP with the prospective buyer intended for sale to the buyer, is a “Supply of Construction Service” and the classification of the service as per the “Scheme of Classification of Service” is “Construction Service under SAC 9954” and it will not be classified under SAC 9997 as claimed by the applicant.’

In view of the above observations, the AAR held that
the proposed modus operandi of the applicant for construction of ‘Unit’ which is ‘other than affordable residential apartments’ is ‘Construction Service’ and the applicable rate of tax is CGST @ 3.75% and SGST @ 3.75% as per Entry at S. No. 3(ia) of the Notification 11/2017-Central Tax (Rate) dated 28th June, 2017 as amended.

3) Export of Service vis-à-vis Intermediary Service
M/s Teretex Trading Pvt. Ltd. (Advance Ruling No. 03/WBAAR/2021-22 dated 28th June, 2021)

The applicant has filed this application for Advance Ruling before the WBAAR. The activities of the applicant have been summarised by the AAR as under:

‘1.3 As stated by the applicant, the modus operandi of the business activities to be undertaken by him may be briefly summarised as under:
(i) To locate prospective overseas / Indian buyers and know their requirement of goods;
(ii) To arrange sales of the said goods from the foreign manufacturers / traders to the prospective buyers;
(iii) Goods are delivered to the buyers directly by the suppliers located outside the country;
(iv) No prior agreement is made by the applicant with the overseas manufacturers / traders for arranging such sales;
(v) The applicant receives consideration in the form of commission in convertible foreign exchange from the overseas suppliers.’

Based on the above facts, the applicant was canvassing that it is engaged in export service. The applicant is submitting that he is an independent service provider and supplier of services at his own risk and cost. He is not an agent of the supplier of goods or the recipient. There is no assumption of any obligation by the applicant either on behalf of the supplier or the recipient of goods.

It was submitted by the applicant that he doesn’t maintain any establishment outside India and receives payment as commission directly from the overseas seller to his bank account in India, meaning thereby the overseas seller of goods (the recipient of services in the instant case) and the applicant (the supplier of services in the instant case) cannot be termed as merely an establishment of a distinct person in accordance with Explanation 1 in section 8 of the IGST Act, 2017.

Accordingly, the applicant prayed to classify the activity as export of service.

The AAR did not concur with the submission of the applicant. He referred to the definition of ‘Export of Service’ given in section 2(6) of the IGST Act, 2017 reproduced as under:

‘Export of services’ means the supply of any service when,
(i) the supplier of service is located in India;
(ii) the recipient of service is located outside India;
(iii) the place of supply of service is outside India;
(iv) the payment for such service has been received by the supplier of service in convertible foreign exchange or in Indian rupees whether permitted by the Reserve Bank of India; and
(v) the supplier of service and the recipient of service are not merely establishments of a distinct person in accordance with Explanation 1 in section 8.’

The AAR also referred to the meaning of intermediary service given in section 2(13) of the IGST Act as below:‘intermediary’ means a broker, an agent or any other person, by whatever name called, who arranges or facilitates the supply of goods or services or both, or securities, between two or more persons, but does not include a person who supplies such goods or services or both or securities on his own account.’

The AAR then observed as under:

‘4.6 It has been admitted by the applicant that the value of supply of services in the form of commission is determined at the rate normally prevalent in the market which is generally 1% or 2% depending on the volume of trade. It clearly establishes the fact that the supply of services as provided by the applicant is inextricably linked with the supply of goods made by the overseas supplier. We also find in the present case that the applicant can neither change the nature and value of supply of goods, nor does he hold the title of the goods at any point of time during the entire transaction. Further, the value of supply of services as provided by him is claimed to be based on an agreed percentage which is separately identifiable. Furthermore, the applicant has admitted that he is going to undertake the aforesaid business activities without assuming any obligation either on behalf of the supplier or on behalf of the recipient of the goods, meaning thereby he doesn’t supply such goods on his own account.

4.7 It therefore appears that the applicant being supplier of services by way of arranging or facilitating sales of goods for various overseas suppliers and admittedly the same is not being done on his own account, satisfies all the conditions to be an intermediary as defined in clause (13) of section 2 of the IGST Act, 2017.’

Accordingly, the AAR held that it is intermediary service liable to tax. In respect of place of supply, he referred to section 13(8) of the IGST Act and held that as per the above section the place of supply is the location of the supplier of service and that is West Bengal in the present case. The AAR therefore held the activity as not export of service.

4) ITC – Promotional Items
M/s Page Industries Limited (Advance Ruling No. KAR/AAAR/05/2021 dated 16th April, 2021)

The issue in this appeal before the Karnataka AAAR was from the AR order passed by the Karnataka AAR dated 15th December, 2020.

The appellant is engaged in manufacturing, distributing and marketing of knitted and woven garments under the brand name ‘Jockey’ and swimwear and swimming equipment under the brand name ‘Speedo’.

The appellant sells its products through franchisees and distributors / dealers. To promote the sale of its products, it procures advertisement services and also items such as display boards, uniforms for staff, gifts, etc. Such purchased items are displayed at the applicant’s showroom, retail showrooms, etc., or distributed to actual buyers at such sales points.

The following question was put before the AAR for determination:

‘Whether in the facts and circumstances of the case
the promotional products / materials and marketing items used by the appellant in promoting their brand
and marketing their products can be considered as “inputs” as defined in section 2(59) of the CGST Act, 2017 and GST paid on the same can be availed as input tax credit in terms of section 16 of the CGST Act, 2017 or not?’

The AAR classified the relevant purchases into two categories, i.e., ‘distributable’ products and non-distributable products and held as under:

‘1. The ITC on GST paid on the procurement of the “distributable” products which are distributed to the distributors, franchisees is allowed as the said distribution amount to supply to the related parties which is exigible to GST. Further the said distribution to the retailers for their use cannot be claimed as gifts to the retailers or to their customers free of cost and hence ITC of GST paid on such procurement is not allowed as per section 17(5) of the GST Acts.
2. The GST paid on the procurement of “non-distributable” products qualify as capital goods and not as “inputs” and the applicant is eligible to claim input tax credit on their procurement, but in case if they are disposed by writing off or destruction or lost, then the same needs to be reversed under section 16 of the CGST Act read with Rule 43 of the CGST Rules.’

Amongst other things in appeal, the appellant challenged the findings of the AAR that the franchisees are related persons and the transfer of promotional material is ‘supply’ by the appellant to the franchisees.

In respect of non-distributable items, the finding that they are transferred on account of the appellant and hence remain as capital goods of the appellant was also contended to be wrong. It was submitted that such purchases are booked in the accounts as expenses under the head ‘sales promotion expenses’.

On the merits of getting ITC, the nature of the products and their uses were explained. The items included stands, hangers, cupboards, ladders for displaying the brand products, etc. The appellant also provided uniforms to sales girls / boys for promoting the brands. It was stated that the above products are used for furtherance of business. Certain judgments were cited to support the above contention.

The interpretation of distribution of such product as ‘gifts’ u/s 17(5)(h) of the CGST Act was also challenged on the ground that they are not given free but with an obligation to promote the brand products. It was argued that there is a difference between disposing goods by way of gifts and using those items in promotional activity.

In ‘gift’ there is no obligation on the receiving person but in the case of the appellant there is an obligation on the part of the franchisees, distributors / dealers to use the same for promoting the brands.

The finding of the AAR that the appellant and franchisees are related parties was also contended to be erroneous on the ground that they are separate entities and independently carrying on business.

The AAAR considered the above arguments and found that there are display items like hangers, signages, posters, etc. There are also gift items like carry bags, calendars, diaries, leather bags, pens with brand names embossed on them, etc. The AAAR consolidated the submissions of the appellant as under:

‘12. The appellant is before us in appeal on the following grounds:
a) the items such as display boards, posters, etc., sent to the franchisees and distributors have not been capitalised in their books of accounts but have been treated as revenue expenditure. Hence, the ruling treating such items as capital goods and not inputs is not correct;
b) the items such as carry bags, pens, calendars, etc., which are distributed to the franchisees and distributors for giving to the customers cannot be considered as gifts but to be treated as a form of promotional / advertising activity which is eligible for input tax credit;
c) the franchisees and distributors are independent entities and are not related persons as wrongly held by the lower Authority; that the franchisees and distributors have only representational rights and have the obligation to promote and market the brands of the appellant in the specified territory but they are not related in any other way to the business of the appellant.’

The AAAR referred to the meaning of ‘input’ as per section 2(59) of the CGST Act.

So far as items of display like hangers, etc. (referred to as non-distributable goods) were concerned, the AAAR observed that they are used in the furtherance of business and the ownership of the items remains with the appellant. However, considering that they are booked as expenses by the appellant, the AAAR held that they are not capital goods as held by the AAR. The AAAR also did not agree with the AAR that the appellant and its franchisees are related parties.

The AAAR came to the conclusion that the above non-distributable items supplied to the franchisees fall in the category of ‘non-taxable supply’ defined u/s 2(78), i.e., supply of goods or services on which no tax is leviable under GST. The AAAR further applied section 17(2) to the above situation to hold that since it is non-taxable supply, it cannot be eligible to ITC. He observed that non-taxable supply is also exempt supply as referred to in section 17(2) and hence not eligible to ITC.

In respect of distributable items like carry bags, the AAAR found that there is no contractual obligation. These are also falling in the category of non-taxable supply. In addition, they are in the nature of gifts and ITC is prohibited as per section 17(5)(h) of the CGST Act.

The appellant cited the appeal order dated 22nd October, 2019 in the case of Sanofi India Ltd. given by the Maharashtra AAAR. However, the AAAR found that in the appeal the appellate authorities differed in their opinion and hence in light of section 100(3) it was deemed to be no advance ruling in respect of the question in appeal. Therefore, the said order was also found to be not useful to the appellant.

Ultimately, the learned AAAR upheld the AR but with modified reasons and findings.

FINANCIAL REPORTING DOSSIER

1. Key Recent Updates

PCAOB: Inspection / Investigation of Registered Public Accounting Firms Located in a Foreign Jurisdiction
On 13th May, 2021, the Public Company Accounting Oversight Board (PCAOB) proposed a new rule, PCAOB Rule 6100, Board Determinations Under the Holding Foreign Companies Accountable Act (‘HFCAA’). The proposed rule provides a framework for the PCAOB’s determinations under the HFCAA Act (where the Board cannot inspect / investigate registered public accounting firms located in a foreign jurisdiction because of a position taken by one or more authorities in that jurisdiction). [https://pcaob-assets.azureedge.net/pcaob-dev/docs/default-source/rulemaking/docket048/2021-001-hfcaa-proposing-release.pdf?sfvrsn=dad8edcf_6]

IASB: Proposed New Framework for Management Commentary
On 27th May, 2021, the International Accounting Standards Board (IASB) published for public comments a proposed comprehensive framework for companies preparing ‘Management Commentaries’ (or Management Discussion and Analysis). The proposed framework represents a significant overhaul of IFRS Practice Statement 1, Management Commentary. It builds on innovations in narrative reporting, thereby enabling companies to bring together in one place information to assess a company’s long-term prospects. [https://www.ifrs.org/content/dam/ifrs/project/management-commentary/ed-2021-6-management-commentary.pdf]

IAASB: New Quality Management Guides
On 14th June, 2021, the International Auditing and Assurance Standards Board (IAASB) released two Guides: a) First-time Implementation Guide for International Standard on Quality Management (ISQM) 1, Quality Management for Firms that Perform Audits or Reviews of Financial Statements, or Other Assurance or Related Services Engagements, and b) First-time Implementation Guide for ISQM 2, Engagement Quality Reviews aimed at helping stakeholders understand the standards and properly implement requirements in the manner intended. [https://www.iaasb.org/news-events/2021-06/new-quality-management-implementation-guides-now-available]

FASB: Leases Standard – Proposed Improvements to Discount Rate Guidance for Lessees that are not Public Business Entities
On 16th June, 2021, the Financial Accounting Standards Board (FASB) issued an Exposure Draft, Discount Rate for Lessees That Are Not Public Business Entities, proposing amendments to Topic 842. The existing USGAAP provides lessees that are not public business entities with a practical expedient that allows them to elect, as an accounting policy, to use a risk-free rate as the discount rate for all leases. The proposed amendments would enable those lessees to make the risk-free rate election by underlying asset class rather than entity-wide. Further, the proposed amendments also require that when the rate implicit in the lease is readily determinable (for any individual lease), the lessee will use that rate (rather than a risk-free rate or an incremental borrowing rate), regardless of whether it has made the risk-free rate election. [https://www.fasb.org/jsp/FASB/Document_C/DocumentPage?cid=1176176792230&acceptedDisclaimer=true]

IASB: Proposed New IFRS Standard – Reduced Disclosure Requirements for Subsidiaries
On 26th July, 2021, the IASB proposed a new IFRS standard and issued an Exposure Draft, Subsidiaries Without Public Accountability: Disclosures, that would permit eligible subsidiaries (subsidiaries without public accountability) to apply IFRS standards with a reduced set of disclosure requirements. [https://www.ifrs.org/content/dam/ifrs/project/subsidiaries-smes/ed2021-7-swpa-d.pdf]

IESBA: Proposed Quality Management-Related Conforming Amendments to the International Code of Ethics
And on 5th August, 2021, the International Ethics Standards Board for Accountants (IESBA) released for public comments an Exposure Draft, Proposed Quality Management-Related Conforming Amendments to the Code, aimed at aligning the International Code of Ethics with the IAASB’s suite of quality management standards, particularly ISQM 1 and ISQM 2. [https://www.ethicsboard.org/publications/proposed-quality-management-related-conforming-amendments-code]

International Financial Reporting Material
1. FRC: Thematic Review: Interim Reporting. [18th May, 2021]
2. FRC: Thematic Briefing: The Audit of Cash Flow Statements. [19th May, 2021]
3. FRC: Workforce Engagement and the UK Corporate Governance Code: A Review of Company Reporting and Practice. [24th May, 2021]
4. IFAC: Point of View: Greater Transparency and Accountability in the Public Sector. [19th July, 2021]
5. FRC: Research Report: Board Diversity and Effectiveness in FTSE 350 Companies. [20th July, 2021]

2. Evolution and Analysis of Accounting Concepts – Non-controlling Interests

Setting the Context
Non-controlling Interest (NCI) is the equity in a subsidiary not attributable, directly or indirectly, to a parent entity (an entity that controls one or more entities). NCI arises in the preparation and presentation of Consolidated Financial Statements when a parent has control over less than one hundred per cent of the investee subsidiary.

In general, an NCI originates in a transaction that qualifies as a ‘Business Combination’ for accounting purposes. On Day 1, upon acquisition of controlling interest in a subsidiary, the measurement and recognition of NCI are based on applying the ‘Acquisition Method’ of accounting (under IFRS, Ind AS, and USGAAP). Day 2 accounting requires using the ‘line-by-line consolidation’ method wherein, typically, the NCI picks up its share of change in net assets of the subsidiary post-acquisition.

One can see diversity across GAAPs in the Day 1 measurement of NCI, which could either be at ‘fair value’ or as a ‘proportion of the net assets of the acquiree’ resulting in recognition of either ‘full goodwill’ or ‘partial goodwill’ with attendant implications on subsequent impairment testing and accounting. The presentation of NCI on the balance sheet also varies across GAAPs – some consider it as equity. At the same time, some GAAPs treat them as a mezzanine item presenting it in between equity and liabilities.

There are various related facets to NCI accounting (e.g., situations that result in step acquisitions, changes in the proportion held by non-controlling interest, etc.). This section below delves only into, a) the Day 1 measurement of NCI, and b) the presentation of NCI in a consolidated balance sheet. It attempts to trace its historical developments, the current position under prominent GAAPs and the alternates that global accounting standards setters have considered since the accounting and presentation of NCI in group balance sheets have evolved under International GAAP.

The Position under Prominent GAAPs
US GAAP
Historical Developments

The Accounting Research Bulletin (ARB) No. 51, issued in 1959 by AICPA’s Committee on Accounting Procedure (CAP), dealt with Consolidated Financial Statements. The Bulletin, inter alia, laid down general consolidation procedures. It, however, did not delve into specifics of Day 1 accounting of NCI and presentation of the related line item in the group balance sheet. This limited guidance resulted in diversity in reporting practice. The reporting of NCI (then termed ‘minority interests’)
in consolidated balance sheets was either under liabilities or the mezzanine section (between liabilities and equity).

To eliminate the diversity in practice, in 2007 the FASB issued a Statement of Financial Accounting Standards (SFAS) No. 160, Non-controlling Interests in Consolidated Financial Statements, that amended ARB 51 establishing accounting and reporting standards for NCI. The existing USGAAP is a codification of SFAS No. 160. The new standard amended specific provisions of ARB No. 51 to make them consistent with the requirements of another related standard, SFAS No. 141 (Revised 2007), Business Combinations (a joint effort by FASB and IASB aimed at promoting international convergence of GAAPs).

Previously, the FASB had deliberated the related NCI accounting issues in two of its earlier projects, a) Consolidations Project (January, 1982): How should the NCI be displayed in the consolidated statement of financial position and the income statement? and b) Financial Instruments Project (May, 1986): to eliminate the classification of mezzanine items between the liabilities section and the equity section. The Board stated that there was no debate about whether NCI has an ownership interest in a subsidiary. The issue that required address was how to report that interest in consolidated financial statements. It considered three alternatives for presenting NCI: i) as a liability, ii) as equity, or iii) in the mezzanine between liabilities and equity.

The FASB concluded that an NCI represents the residual interest in the net assets (of a subsidiary) within the consolidated group held by owners other than the parent and therefore meets the definition of equity (as per Concept Statement CON 6). Paragraph 254 of Concepts Statement 6, Elements of Financial Statements (issued in December, 1985) stated, ‘Minority interests in net assets of consolidated subsidiaries do not represent present obligations of the enterprise to pay cash or distribute other assets to minority stockholders. Rather, those stockholders have ownership or residual interests in components of a consolidated enterprise. The definitions in this Statement do not, of course, preclude showing minority interests separately from majority interests or preclude emphasising the interests of majority stockholders for whom consolidated statements are primarily provided.’

The Board also decided that the NCI should be presented separately from the parent’s equity so that users could readily determine the equity attributable to the parent from the equity attributable to the NCI.

SFAS No. 160 aligned the reporting of NCI under USGAAP with the requirements in IAS 27 (then ‘Consolidated and Separate Financial Statements’). Previously, entities applying IFRSs (then IASs) reported NCI as equity, while entities applying USGAAP reported those interests as liabilities or in the mezzanine section between liabilities and equity.

Current Position
Non-controlling interest
Topic 810 of USGAAP that deals with Consolidation defines NCI as the ownership interests in the subsidiary that are held by owners other than the parent. [ASC 810-10-45-15]

Day 1 measurement
Topic 805 (Business Combinations) lays down the Day 1 accounting requirements for NCI: ‘The acquirer shall measure the identifiable assets acquired, the liabilities assumed and any non-controlling interest in the acquiree at their acquisition-date fair values’. [ASC 805-20-30-1]

Balance sheet reporting
The NCI in a subsidiary is part of the equity of the consolidated group.

‘The non-controlling interest shall be reported in the consolidated statement of financial position within equity (net assets), separately from the parent’s equity (or net assets). That amount shall be clearly identified and labelled, for example, as non-controlling interest in subsidiaries.’ [ASC 810-10-45-16]

IFRS
Historical Developments
Day 1 measurement of NCI

Under International Accounting Standards (now IFRS) IAS 22, Business Combinations (issued in 1983 and revised in 1998) permitted the pooling of interests method or the purchase method of accounting for business combinations. Where the acquirer was not identifiable, the technique used was the pooling of interests method. In other circumstances, business combinations were presumed acquisitions necessitating the need to apply the purchase method of accounting. Under the purchase method of accounting, the benchmark approach required minority interests’ Day 1 measurement at the pre-acquisition carrying amounts with an allowed alternate to measure at the minority’s proportion of the net fair value of the assets acquired and liabilities assumed.

IFRS 3, Business Combinations (issued 2004) replaced IAS 22. All business combinations required accounting applying the acquisition method of accounting. The allowed alternate approach (Supra) in IAS 22 was the only basis to measure NCI at the acquisition date.

A revised version of IFRS 3 issued in 2008 introduced a choice (on a transaction-by-transaction basis) to measure Day 1 NCI: at fair value or its proportionate share of the acquiree’s net identifiable assets. Providing a choice was not a preference of the IASB but a compulsion.

The IASB’s considerations in arriving at the approach to the 2008 amendments were:
a) Whether the NCI’s share of goodwill is required to be recognised or not?
b) An acquirer can directly measure the fair value of NCI (based on market prices or with the application of a valuation technique). In contrast, the other plug variable, goodwill, cannot be measured directly but only as a residual.
c) The decision-usefulness of NCI information would be improved if the revised standard specified a measurement attribute rather than merely stating the mechanics for determining that amount. The IASB concluded that, in principle, that measurement attribute should be fair value.
d) The information about acquisition date fair value of NCI helps in estimating the value of the shares of the parent company (both at the acquisition date and at future dates).

It may be noted that ‘Introducing a choice of measurement basis for non-controlling interests was not the IASB’s first preference. [IFRS 3. BC 210] The IASB reluctantly concluded that the only way the revised IFRS 3 would receive sufficient votes to be issued was if it permitted an acquirer to measure a non-controlling interest either at fair value or at its proportionate share of the acquiree’s identifiable net assets, on a transaction-by-transaction basis. [IFRS 3. BC 216]’

Presentation of NCI
The revision to IAS 27 in 2003 by the IASB required minority interests to be presented within equity, separately from the equity of shareholders of the parent. The IASB concluded that minority interest is not a group liability because it does not meet the definition of a liability in the Conceptual Framework.

Current Position
Non-controlling interest

IFRS 10, Consolidated Financial Statements, defines NCI as the equity in a subsidiary not attributable, directly or indirectly, to a parent. [IFRS 10. Appendix A]

Day 1 measurement
The Day 1 accounting requirements for NCI are laid down in IFRS 3, Business Combinations. As per the standard, ‘For each business combination, the acquirer shall measure at the acquisition date components of non-controlling interests in the acquiree that are present ownership interests and entitle their holders to a proportionate share of the entity’s net assets in the event of liquidation at either: a) fair value; or b) the present ownership instruments’ proportionate share in the recognised amounts of the acquiree’s identifiable net assets.’ [IFRS 3.19]

Balance sheet reporting
A parent shall present non-controlling interests in the consolidated statement of financial position within equity, separately from the equity of the owners of the parent. [IFRS 10.22]

Ind AS
Indian Accounting Standards (Ind AS 103, Business Combinations | Ind AS 110, Consolidated Financial Statements) and IFRS (Supra) are aligned concerning Day 1 measurement of NCI and reporting of NCI in consolidated balance sheets.

AS
Current Position
Non-controlling interest

The definition of minority interest contained in AS 21, Consolidated Financial Statements, is as follows: ‘Minority interest is that part of the net results of operations and of the net assets of a subsidiary attributable to interests which are not owned, directly or indirectly through subsidiary(ies), by the parent.’ [AS 21.5.7]

Day 1 measurement
Minority interests, in general, are measured at their proportion of the book values (carrying amounts) of identifiable net assets of subsidiaries. As per AS 14, Accounting for Amalgamations, under the purchase method of accounting the transferee company accounts for an amalgamation either by incorporating the assets and liabilities at their existing carrying amounts, or by allocating the consideration to individual identifiable assets and liabilities of the transferor company based on their fair values.

Balance sheet reporting
‘Minority
interests in the net assets of consolidated subsidiaries should be identified and presented in the consolidated balance sheet separately from liabilities and the equity of the parent’s shareholders.’ [AS 21.13(e) | AS 21.25]

The Little GAAPs
US FRF for SMEs

As per AICPA’s US Financial Reporting Framework for Small and Medium-Sized Entities (FRF for SMEs), a self-contained framework not based on USGAAP, an entity is required to present separately the NCI component of equity in the body of the financial statements or in the notes. [Chapter 18, Equity. Para 18.8]

‘If an entity consolidates its subsidiaries, non-controlling interests should be presented in the consolidated statement of financial position within equity, separately from the equity of the owners of the parent.’ [Chapter 23, Consolidated Financial Statements and Non-controlling Interests. Para 23.33]
‘For each business combination, the acquirer should measure any non-controlling interest in the acquiree at the non-controlling interest’s proportionate share of the acquiree’s identifiable net assets.’ [Chapter 28, Business Combinations. Para 28.16]

IFRS for SMEs
Section 9, Consolidated and Separate Financial Statements of IFRS for SMEs, requires an entity to present NCI in the consolidated Statement of Financial Position within equity, separately from the equity of the owners of the parent. [9.20]

Section 19, Business Combinations and Goodwill, states that ‘At the acquisition date, any non-controlling interest in the acquiree is required to be measured at the non-controlling interest’s proportionate share of the recognised amounts of the acquiree’s identifiable net assets.’ [19.14]

In January, 2020, the IASB released a Request for Information – Comprehensive Review of the IFRS for SMEs Standard (with a comment deadline of 27th October, 2020). The Objective of the RFI was to seek views on whether, and how, aligning
IFRS for SMEs Standard with the full IFRS Standards could better serve users. The IASB sought views to align Section 19, Business Combinations and Goodwill, with certain parts of IFRS 3. However, it categorically stated that it was not seeking views on aligning IFRS for SMEs with improvements in IFRS 3 (2008) that introduced the option to measure NCI at fair value.

3. Global Annual Report Extracts: ‘Part of Director’s Remuneration Report That is Subject to Audit’

Background
The UK Large and Medium-sized Companies and Groups (Accounts and Reports) Regulations, 2008 mandate certain sections of the Director’s Remuneration Report to be audited and reported by the statutory auditors. Paragraph 411 of Part 5 of Schedule 8 (The Quoted Companies [and Traded Companies]: Director’s Remuneration Report) states that ‘The information contained in the Director’s Remuneration Report which is subject to audit is the information required by paragraphs 4 to 17 of Part 3 of this schedule.’
_______________________________________________
1 https://www.legislation.gov.uk/uksi/2008/410/schedule/8

The information in the Director’s Remuneration Report that is subject to audit includes: a total figure of remuneration for each director setting out separately salaries, taxable benefits, remuneration based on achievement of performance measures and targets, pension benefits, total fixed remuneration and total variable remuneration; total pension entitlements; scheme interests awarded during the financial year; payments to past directors; payments for loss of office; and a statement of director’s shareholdings and share interests.

Extracts from an Annual Report
Company: Anglo American PLC [FTSE 100 Constituent] (Y.E. 12/2020 Revenues – US $30.9 billion)
Extracts from Director’s Remuneration Report:

Annual Report on Director’s Remuneration
Audited Information

Under schedule 8 of the Large and Medium-sized Companies and Groups (Accounts and Reports) Regulations, 2008, elements of this section of the report have been audited. The areas of the report subject to audit are indicated in the headings2.

• Executive director remuneration in 2020 (audited)
• Benefits in kind for 2020 (audited)
• Annual bonus outcomes for 2020 (audited)
• Annual bonus performance assessment for 2020 (audited)
• 2018 LTIP award vesting (audited)
• Pension (audited)
• Payments for past directors (audited)
• Payments for loss of office (audited)
• Other director remuneration in 2020 (audited)
• Scheme interests granted during 2020 (audited)
• Total interests in shares (audited)

Extracts from Independent Auditor’s Report:
Section: Other required reporting
Companies Act, 2006 exception reporting

Under the Companies Act, 2006 we are required to report to you if, in our opinion:


certain disclosures of directors’ remuneration specified by law are not made; or

We have no exceptions to report arising from this responsibility.

__________________________________________________________
2 Full contents of sections not reproduced for the purpose of this
feature. Readers may refer to:
https://www.angloamerican.com/~/media/Files/A/Anglo-American
4. Audits – Enforcement Actions by Global Regulators

The Public Company Accounting Oversight Board (PCAOB)

A. Enforcement actions
The US PCAOB imposes appropriate sanctions in settled and litigated disciplinary proceedings against audit firms and auditors. Provided herein below is a summary of a select recent order.

1. RBSM, LLP
The Case: From 2014 through 2019, the PCAOB inspection staff notified the audit firm of repeated significant audit deficiencies that raised concerns about its engagement performance. The initial instances of these deficiencies provided the firm with notice of engagement performance issues. Subsequent findings of deficiencies provided continuing notice and indicated the firm’s system of quality control had failed to adequately address the deficiencies noted in previous inspections.

PCAOB Rules / Standards Requirement: PCAOB rules require a registered public accounting firm to comply with PCAOB quality control standards. These standards require that a registered firm have a system of quality control for its accounting and auditing practice – ‘A firm’s system of quality control encompasses the firm’s organisational structure and the policies adopted and procedures established to provide the firm with reasonable assurance of complying with professional standards.’

The Order: The PCAOB censured the audit firm, imposed a monetary penalty of $50,000 and required it to engage an independent consultant for a period of three years to review and make recommendations concerning the firm’s quality control policies and procedures. [Release No. 105-2021-004 dated 9th August, 2021]

B. Deficiencies identified in audits
The PCAOB annually inspects registered audit firms that issue more than 100 audit reports (and all other firms, at least once every three years). Such inspection assesses compliance with applicable laws, rules and professional standards applicable to a firm’s audit work. Reported herein below are some audit deficiencies identified by the PCAOB from its recently released inspection reports:

1. Sassetti LLC, Illinois
Audit area: Revenue
– The firm’s approach for testing revenue included selecting a sample of transactions from certain months during the year.

Audit deficiency identified: In determining the sample size, the firm did not consider the relevant factors, including the firm’s established tolerable misstatement for the population, the allowable risk of incorrect acceptance, and the characteristics of the population of sales transactions. As a result, the sample size the firm used in its test of details was too small to achieve the planned audit objective. Further, the firm’s selection of transactions for testing was confined to transactions from certain months of the year, not the entire population of net sales. Therefore, the results of these audit procedures could not be projected to the entire population. [Release No. 104-2021-102 dated 12th May, 2021]

2. Sadler, Gibb & Associates, LLC, Utah
Audit area: ICFR related to certain assets
– The client held certain assets at multiple locations. The audit firm selected for testing a control related to certain assets that was being performed quarterly at all locations.

Audit deficiency identified: The audit firm did not test whether 1) the control operated consistently at all locations; 2) all such assets at each location were subject to the control; 3) variances that exceeded threshold were appropriately investigated and resolved; and 4) adjustments made by the client as a result of the control were appropriately approved and recorded. [Release No. 104-2021-101 dated 12th May, 2021]

The Securities Exchange Commission (SEC)
The US SEC institutes public administrative proceedings against audit firms and securities issuers under the Securities Exchange Act of 1934. Here is a summary of a select recent order.

1. Retail company and its former CFO | CEO charged for accounting, reporting and control failures
The Case: Tandy Leather Factory Inc. (a specialty retailer) had accounting, reporting and control failures: a) its inventory tracking system failed to properly maintain the historical cost basis for individual inventory items that resulted in every new price input of a purchased inventory item changing the historical cost for all earlier purchases, and the system could therefore not support the company’s FIFO inventory accounting methodology disclosed in public reports; b) despite knowledge of the system’s limitations, the management failed to design and maintain a system of internal accounting controls; c) the company failed to properly design, maintain and evaluate its Disclosure Control Procedures (DCP) and Internal Control over Financial Reporting (ICFR). These deficiencies resulted in a multi-year restatement in Tandy’s financial statements concerning, among other things, inventory, net income and gross profit.

The Violations: As per the SEC order, Tandy violated, and Shannon Greene (its former CFO and CEO) caused Tandy’s violations of, the reporting, record-keeping and internal controls provisions of the Securities Exchange Act of 1934 and the Rules made thereunder. The SEC found Greene to have violated the certification provisions of the Exchange Act Rules.

The Penalty: Without admitting or denying the findings, Tandy and Greene each consented to cease and desist from further committing or causing these violations and pay civil money penalties of $200,000 and $25,000, respectively. [Press Release No. 2021-133 dated 21st July, 2021]

The Financial Reporting Council (FRC)
The FRC (the competent authority for statutory audit in the UK) operates the Audit Enforcement Procedure that sets out the rules and procedures for investigation, prosecution and sanctioning of breaches of relevant requirements.

Summarised below are key adverse findings from a recent Final Decision Notice following an investigation:

1. UHY Hacker Young LLP and Julie Zhuge Wilson (Audit engagement partner)

Key adverse findings:
• Acceptance, planning and resourcing of the audit

The structure of the client’s operations meant that the audit would be potentially complex and logistically challenging. Such a structure necessitated audit planning completion in advance of the year-end. Had this been followed, it would have allowed sufficient time for the audit firm to: meet with management; understand changes to the business; assess risks; adequately resource the Audit Team; brief the Engagement Quality Control Review (EQCR); evaluate the competence of the Component Auditors; instruct the Component Auditors and participate in the risk assessment of the Component Auditors. Inadequacy in achieving all this resulted in multiple significant shortcomings in the execution of the audit work.

• EQCR
The EQCR had commenced its substantive review of the audit file only four days before the signing
deadline. There was also no evidence of related discussion on any significant matters arising on the audit; consequently, the review was largely ineffective and therefore inadequate.

• Signing of audit report
The Annual Report was approved by those charged with governance just after midnight on 29th April, 2017. The audit report was signed following that approval, with the result that the audit report was incorrectly dated 28th April, 2017.

The Sanctions:
• Severe reprimand and imposition of non-financial sanctions (requiring remedial actions to prevent recurrence of breaches) against the audit firm,
• Declaration that the F.Y. 2016 audit report did not satisfy the relevant requirements, and
• Prohibiting the audit engagement partner from acting as a statutory auditor of a PIE (Public Interest Entity) for two years.

[Final Decision Notice dated 13th May, 2021 – https://www.frc.org.uk/getattachment/6e80eb04-2193-4f34-930b-b0112d4e5b75/UHY-Hacker-Young-LLP-Decision-Notice.pdf]

FRC’s Annual Inspection and Supervision Results
On 23rd July, 2021 the FRC published its Annual Audit Quality Inspection and Supervision Results3 for 2020/21 that covered the seven largest audit firms (involving the review of 103 audits). Summarised herein below are select audit review findings and audit good practices.

______________________________________________________________
3 https://www.frc.org.uk/news/july-2021/frc-annual-audit-quality-inspection-results- 2020-2

Findings from Review of Individual Audits

BDO LLP
In an audit, the FRC observed that insufficient substantive audit procedures were performed over the valuation of pension scheme assets, in particular over unquoted assets, including equities and bonds, property and assets held in Pooled Investment Vehicles.

Deloitte LLP
In two audits, the FRC noted that the audit teams did not sufficiently evidence their consideration and challenge of the period used in goodwill impairment assessment. One of these related to where a short-term forecast period of ten years had been used (which was above the commonly-adopted five-year period). Another one related to the assumption that an extension to the useful life of a material asset to support the carrying value was appropriate.

Ernst & Young LLP
In one audit reviewed by the FRC, there was inadequate consultation and evidence of a) consideration over the use of certain assets, which were not yet under the control of the group, and b) Deferred Tax Asset (DTA) recoverability assessment. It also noted that the auditor’s analysis did not adequately evidence the connection between DTA recoverability and management’s calculations and forecasts.

Grant Thornton UK LLP
The FRC found in an audit insufficient assessment of a lender’s ability to provide funding as and when required. The working capital forecasts assumed this funding would be available to support the going concern conclusion.

KPMG LLP
In three audits reviewed by FRC, it reported non-performance of sufficient audit procedures related to the audit of expected credit losses that included the following: a) procedures relating to the assessment of significant increases in credit risk and related testing, b) individually assessed exposure credit file review procedures, and c) the testing of models and related data elements.

Mazars LLP
In one audit, the FRC found weaknesses relating to Expected Credit Losses (ECL) testing. In particular, it had concerns about the nature and extent of audit procedures performed and the sufficiency of audit evidence. These were primarily related to the Significant Increase in Credit Risk (SICR) and the appropriateness and adequacy of the audit approach over all the SICR criteria (including management judgement) and specific stage allocation. As per the FRC, the audit team performed inadequate procedures and did not retain sufficient evidence to support its testing of multiple economic scenarios.

PricewaterhouseCoopers LLP
Risk of Management Override – The FRC reported that in five audits with journal testing based on determined risk criteria, there was insufficient evidence of the audit team’s evaluation of the residual aggregated risk in the remaining untested population. These included two cases with inadequate evidence of assessment of the residual higher risk journal population after targeted testing.

b. Good Practice Observations by the FRC

BDO LLP: Assessment of going concern and viability – The audit teams clearly evidenced: challenge of going concern disclosures, assessment of management’s historical budgeting accuracy, and the use of computer-aided audit techniques to check the integrity of management’s going concern cash flow model.

Deloitte LLP: Use of bespoke data analytic procedures – The FRC saw a good example of the use of bespoke data analytic procedures to obtain audit evidence and provide assurance over unbilled revenue. This is an effective way of auditing the related estimates generated from a diverse set of data.

Ernst & Young LLP: First-year audits – Thorough first-year procedures were observed, including one audit where the audit team identified several prior year adjustments. As part of the consultation about each prior year adjustment, the audit team evidenced a thorough challenge of the root cause of each matter to understand the potential for the underlying causes to have a pervasive impact.

Grant Thornton UK: LLP Consultation on certain audit matters – In two audits, there was detailed consultation on accounting policy adoption and disclosure where alternative treatments were possible.

KPMG LLP: Challenge of management – In addition to going concern, the identified best practices included examples on three audits where there had been a robust challenge of the judgements made by management for impairment, PPE residual values and deferred revenue.

Mazars LLP: Delayed sign-off – The engagement partner delayed signing the auditor’s report to ensure that sufficient audit evidence was obtained. Furthermore, the reporting to the Audit Committee in relation to the difficulties encountered during the audit was robust.

PricewaterhouseCoopers LLP: Robust assessment of management’s going concern assumption – The FRC observed examples of good practice in two audits where there was a heightened going concern risk as a result of Covid-19. On one audit, there was detailed evidence of audit review and challenge by the firm’s technical panel in the case of a material uncertainty relating to going concern. On another audit, the audit team demonstrated enhanced professional scepticism by developing a ‘traffic light system’ to assist with the assessment of key assumptions used in management’s going concern assessment.

5. COMPLIANCE: Presentation of a Third Balance Sheet under Ind AS

Background
Under Ind AS, an entity is required to present a third balance sheet (i.e., at the beginning of the preceding period) under certain circumstances taking into consideration relevant requirements of Ind AS 1, Presentation of Financial Statements, and Ind AS 8, Accounting Policies, Changes in Accounting Estimates and Errors. The same is summarised in Table A below.

Table A: Presentation requirements
(Third balance sheet)

A complete set of financial statements, inter alia,
comprises a balance sheet at the beginning of the preceding period
when an entity:

a) applies an accounting policy retrospectively, or

b) makes a retrospective restatement of items in its
financial statements, or

c) when it reclassifies items in its financial statements
as per Ind AS 1,

and such retrospective application, restatement or
reclassification has a material effect. [Ind AS 1.10 & 1.40A]

Retrospective application is applying a new accounting
policy to transactions, other events and conditions as if that policy had
always been applied.

Retrospective restatement is correcting the
recognition, measurement and disclosure of amounts of elements of financial
statements as if a prior period error had never occurred. [Ind AS 8.5]

An entity need not present related notes to the
opening balance sheet as at the beginning of the preceding period. [Ind AS
1.40C]

Interim Financial Reporting:

The IASB decided not to reflect in Paragraph 8 of IAS
34
, Interim Financial Reporting (i.e., the minimum components of
an interim financial report) its decision to require the inclusion of a
statement of financial position as at the beginning of the earliest
comparative period in a complete set of financial statements. [IAS 1
(IFRS) Basis for Conclusions BC 33]

6. Integrated Reporting

a. Key Recent Updates

GRI: Double Materiality Crucial for Reporting Organisational Impacts
On 31st May, 2021, the Global Reporting Initiative (GRI) released a white paper, The Double Materiality Concept – Application and Issues, that investigates the application of materiality in sustainability reporting. Key findings include, a) identification of financial materiality issues is incomplete if companies do not first assess their impact on sustainable development; and b) reporting material sustainable development issues can enhance financial performance, improve stakeholder engagement and enable more robust disclosure. [https://www.globalreporting.org/media/jrbntbyv/griwhitepaper-publications.pdf]

IIRC and SASB Merger: Value Reporting Foundation
On 9th June, 2021, the International Integrated Reporting Council (IIRC) and the Sustainability Accounting Standards Board (SASB) announced their merger to form the Value Reporting Foundation (VRF). The VRF supports business and investor decision-making with three key resources: Integrated Thinking Principles, Integrated Reporting Framework and SASB Standards.

FRC: Statement of Intent on ESG Challenges
And on 7th July, 2021, the FRC published the FRC Statement of Intent on Environmental, Social and Governance Challenges. The paper sets out areas in which there are issues with ESG information if companies report in a manner that meets the demands of stakeholders; how to address such issues; and the FRC’s planned activities in this area. [https://www.frc.org.uk/getattachment/691f28fa-4af4-49d7-a4f5-49ad7a2db532/FRC-LAB-ESG-Paper_2021.pdf]

b. Reporting Sustainability Roadmap
Background:

The 2030 Agenda for Sustainable Development issued by the United Nations in 2015 is a plan of action for people, the planet and prosperity. The 17 Sustainable Development Goals (SDGs), adopted by all UN member states, provides the blueprint for a more sustainable future by tackling big-ticket and urgent global challenges that include poverty, inequality, climate change and environmental degradation. Goal 13 pertains to climate action, namely, ‘Take urgent action to combat climate change and its impacts’.

The International Federation of Accountants (IFAC) has promoted ‘Sustainable Development Goal Disclosure (SDGD) Recommendations’ that provide an opportunity for organisations to establish best practices for corporate reporting on SDGs, thereby enabling more effective reporting and transparency on social impacts. One of the recommendations on the related governance aspect includes ‘Disclose the time period over which the organisation intends to implement the SDGD Recommendations and where any SDGD Recommendation is not, or will not, be disclosed, explain why not.’ [G3 SGSD Recommendations]

Extracts from Annual Report of The Weir Group PLC (a premium mining technology group) [Y.E. 12/2020 revenue: GBP 1,965 million]
Sustainable Development Goals (SDGs)
We support the UN Sustainable Development Goals and our sustainability priority areas can meaningfully support the achievement of eight of the seventeen SDGs.

Sustainability Roadmap – Key Climate Milestones

2019

• Multi-stakeholder materiality assessment

Roadmap design and key goals
commitment

• Weir’s first Chief Strategy &
Sustainability Officer’s
role on the Group Executive

Energy efficiency pilots across key
operations

2020

Roadmap
launch

• Global energy use in
mining study

• Group-wide energy
efficiency and renewable supply studies

• Sustainable
solutions technology developments

• First Task Force
for Climate-related Financial Disclosures evaluation

2021

• Progress and disclosure against roadmap KPIs

• Continued focus on sustainable solutions
R&D and technology partnerships to address mining industry’s biggest
challenges

• Scope 3 study and first evaluation of
Science-Based Targets and Net Zero pathways

Digitalisation of strategic
sustainability disclosures

2021+

• Deliver against Reducing
our Footprint
goals through a combination of strategic energy efficiency
and renewable supply actions

• Deliver against Creating
Sustainable Solutions
goal through both sustainable design embedded in
core products and new transformational solutions innovation

Evaluate viable
2050 Net Zero Pathways

2024

• 30% reduction in Scope 1 & 2 CO2e

2030

• 50% reduction in
Scope 1 & 2 CO2e

2050

• Net zero

c. Integrated Reporting Material
• IFAC: Enabling Purpose Driven Organizations PAIBs (Professional Accountants in Business) Leading Sustainability and Digital Transformation. [19th May, 2021]
• IIRC: Integrated Thinking in Action: A Spotlight on Munich Airport. [25th May, 2021]
• ACCA: Invisible Threads: Communicating Integrated Thinking. [26th May, 2021]
• GRI and SASB: Five Tips for GRI and SASB Reporters. [29th June, 2021]
• IIRC: Purpose Drives Profit: How Global Executives Understand Value Creation Today. [28th July, 2021]

7. From the Past – ‘Without professional accountants, growth in almost any country would be stymied’

Extracts from a speech by Graham Ward (the then IFAC President) at the World Congress of Accountants, 2006 held in Turkey:

‘There are not, of course, any specific statistics that demonstrate our profession’s effectiveness in generating economic growth, so I will present it to you in another light: Without professional accountants, without reliable and credible financial information that is independently reviewed and verified, growth in almost any country would be stymied. Where our profession flourishes, so, too, does the potential for real and meaningful economic growth.

Having a strong accountancy profession is a key aspect of having a strong financial infrastructure in a country and relates to the ability of that country as a whole, and also to the individual companies within that country, to raise capital at a favourable cost.

For developing nations, having a strong financial infrastructure, or, as I like to call it, an investment climate of trust, means that not only can you attract private sector capital more easily and at a better price, but you can also attract assistance from development partners. Therefore, having a strong accountancy profession is a real help in the fight against poverty, in that it can help to finance programmes for education, health, energy, clean water and food, as well as financing business and growth, thereby enabling standards of living to improve.’

FROM PUBLISHED ACCOUNTS

The following are some typical ‘Key Audit Matter’ paragraphs included in Audit Reports.

 
HERO MOTOCORP LTD. (31ST MARCH, 2021)

From Audit Report on Standalone Financial Statements

 

S. No.

The key audit matter

How the matter was
addressed in our audit

1.

Government Grants

 

[Refer Note 3.5 and 14(f) to the standalone financial
statements]

 

The Company obtains various grants from Government authorities
in connection with manufacturing and sales of two-wheelers. There are certain
specific conditions and approval requirements attached to the grants.

 

Management evaluates, at the end of each reporting period,
whether the Company has complied with the relevant conditions attached to
each grant and whether there is a reasonable assurance that the grants will
be received, in order to determine the timing and amounts of grants to be
recognised in the financial statements.

 

We identified the recognition of Government grants as a key
audit matter because of the significance of the amount of grants and due to
significant management judgement involved in assessing whether the conditions
attached to grants have been met and whether there is reasonable assurance
that grants will be received.

In view of the significance of the matter, we applied the
following audit procedures in this area, among others, to obtain sufficient
appropriate audit evidence:

 

n assessed the
appropriateness of the accounting policy for Government grants as per the
relevant accounting standard;

 

n evaluated the design and
implementation of the Company’s key internal financial controls over
recognition of Government grants and tested the operating effectiveness of
such controls on selected transactions;

 

n inspected, on a sample
basis, documents relating to the grants given by the various Government
authorities and identifying the specific conditions and approval requirements
attached to the respective grants;

 

n evaluated the basis of
management’s judgement regarding fulfilment of conditions attached to the
grants and reasonable assurance that grants will be received. This included
examining, on a sample basis, the terms of the underlying documentation,
correspondence with the

1.

 

(continued)

 

Government authorities and whether corresponding sales were made
in respect of such grants;

 

n assessed the adequacy and
appropriateness of the disclosures made in accordance with the relevant
accounting standard.

 

MRF
LTD. (31ST MARCH, 2021)

From Audit Report on Standalone Financial Statements

 

S. No.

Key audit matter

Our response

1.

Defined Benefit Obligation

 

The valuation of the retirement benefit schemes in the Company
is determined with reference to various actuarial assumptions including
discount rate, future salary increases, rate of inflation, mortality rates
and attrition rates. Due to the size of these schemes, small changes in these
assumptions can have a material impact on the estimated defined benefit
obligation

We have examined the key controls over the process involving
member data, formulation of assumptions and the financial reporting process
in arriving at the provision for retirement benefits. We tested the controls
for determining the actuarial assumptions and the approval of those
assumptions by senior management. We found these key controls were designed,
implemented and operated effectively, and therefore determined that we could
place reliance on these key controls for the purposes of our audit.

 

We tested the employee data used in calculating the obligation
and where material, we also considered the treatment of curtailments,
settlements, past service costs, re-measurements, benefits paid and any other
amendments made to obligation during the year. From the evidence obtained we
found the data and assumptions used by

1.

 

(continued)

 

management in the actuarial valuation for retirement benefit
obligations to be appropriate.

 

 

SYNGENE
INTERNATIONAL LTD. (31ST MARCH, 2021)

From Audit Report on Standalone Financial Statements

 

Key
Audit Matters

Key Audit Matters are those
matters that, in our professional judgement, were of most significance in our
audit of the standalone financial statements of the current period. These
matters were addressed in the context of our audit of the Standalone Financial
Statements as a whole and in forming our opinion thereon, and we do not provide
a separate opinion on these matters.

 

Financial
instruments – Hedge accounting

[Refer Note 2(a) and 28 to
the Standalone Financial Statements]

 

The
Key Audit Matter

The Company enters into
forward, option and interest rate swap contracts to hedge its foreign exchange
and interest rate risks. Foreign exchange risks arise from sales to customers
as significant part of its revenues are denominated in foreign currency with
most of the costs denominated in Indian Rs. (INR). Foreign exchange risks also
arise from foreign currency borrowings. The interest rate risks arise from the
variable rate of interest on its foreign currency borrowings.

 

The Company designates a
significant portion of its derivatives as cash flow hedges of highly probable
forecasted transactions. Derivative financial instruments are recognised at
their fair value as of the balance sheet date on the basis of valuation report
obtained from third party specialists. Basis such valuations, effective portion
of derivative movements are recognised within equity.

 

These matters are of
importance to our audit due to complexity in the valuation of derivative
contracts and complex accounting and documentation requirements under Ind AS
109
Financial Instruments. Covid-19 had an impact on
its operations and thereby impacted Company’s estimates relating to occurrence
of the highly probable forecasted transactions. A hedging relationship can no
longer be continued if the Company concludes forecasted transactions are not
likely to occur. Given the uncertainties relating to Covid-19, judgements and
estimates relating to hedge accounting were inherently complex.

 

How the matter was addressed in our audit

Our audit procedures in
relation to hedge accounting include the following, amongst others:

} Tested the
design and operating effectiveness of the Company’s controls around hedge
accounting;

 

} We
involved our internal valuation specialists to assess the fair value of the
derivatives by testing sample contracts;

 

} We analysed critical terms (such as nominal amount, maturity and
underlying) of the hedging instrument and the hedged item to assess they are
closely aligned;

 

} We
analysed the revised estimate of highly probable forecasted transactions and
tested the impact of ineffective hedges; and

 

} We
challenged Company’s assertion relating to its ability to meet its forecasts on
account of Covid-19, to be able to assert that hedge accounting can be
continued by analysing various scenarios to conclude there was no significant impact
on the year-end financial statements.

 

MAHINDRA
& MAHINDRA LTD.
(31ST MARCH, 2021)

From Audit Report on Consolidated Financial Statements

 

Description
of Key Audit Matter

Bankruptcy filing by a material subsidiary

 

The key audit matter

How the matter was
addressed in our audit

The Group held an investment in a material foreign subsidiary.
The Holding Company’s Board of Directors and management have concluded that
admission of this subsidiary in the rehabilitation proceedings with the Seoul
Bankruptcy Court under the Debtor Rehabilitation and Bankruptcy Act of South
Korea on 28th December, 2020 and uncertainty on outcome of the
rehabilitation proceedings impacts the Holding Company’s ability to retain
control of the subsidiary.

Our audit procedures include:

 

Read the documents in
relation to admission of the subsidiary in the rehabilitation proceedings and
made inquiries with the Company’s management to understand the implications
of the rehabilitation proceedings;

 

• Assessed the Group’s evaluation of
degree of control / significant influence based on proceedings in the
rehabilitation process and the requirements

(continued)

 

The Holding Company’s Board of Directors and management
determined that the Holding Company lost control as defined in Ind AS 10 Consolidated
Financial Statements
due to reasons which are described in the accounting
policies on the basis of consolidation. The business operations of the
erstwhile subsidiary have been classified as discontinued operations in the
consolidated financial statements.

 

On de-consolidation of the subsidiary, the Company has
de-recognised its net liability relating to the subsidiary. The Company
recognised operating losses and an impairment / provision aggregating to Rs.
3,252 crores in relation to this erstwhile subsidiary. Further, the Company
has recorded a gain on de-consolidation of the subsidiary of Rs, 1,063
crores. The impairment / provision has been determined based on best estimate
assumptions of the erstwhile subsidiary’s valuation and considering the
uncertainty of the rehabilitation process. These amounts have been reported
as results of discontinued operations in the consolidated financial
statements.

 

Refer Note 2(u) – significant accounting policy for discontinued
operation.

 

(continued)

 

of the relevant accounting standards;

 

• Obtained management’s best estimate of
the recoverable amounts and tested the key assumptions with respect to
discount rate and expectation of recovery of the assets. Performed
sensitivity analysis of the key assumptions, such as discount rates, expected
time and extent of the subsidiary’s ability to repay used in assessment of
the recoverable value of the assets;

 

• Inquired and assessed the tax impact of these matters with the
management;

 

• Evaluated the impact of the auditors’ opinion of the erstwhile
subsidiary on our audit opinion on the consolidated financial statements;

 

• Inquired with management on the
implications of events after the date of financial statements to corroborate
the impact of the developments with respect to bankruptcy proceedings with
the assessment of degree of control / significant influence and assessment of
recoverable value of the Company’s assets; and

 

• Assessed the appropriateness and adequacy
of the disclosures in the financial statements, including those relating to
discontinued operations.

 

BOSCH
LTD. (31ST MARCH, 2021)

From Audit Report on Standalone Financial Statements

Key audit matter

Auditor’s response

Provision towards various restructuring and
transformational projects – Refer Note 42

 

The Company is undergoing major transformation with regard to
structural and cyclical

Our principal audit procedures performed, among other
procedures, included the following:

 

1. We obtained an understanding of the management’s processes
for assessing the requirements

(continued)

 

changes in automotive market and emerging opportunities in the
electro mobility and mobility segment. A provision of Rs. 2,458 million is
made towards such restructuring and transformational costs (included as
exceptional item in the Statement of Profit and Loss).

 

We consider provision towards restructuring and transformational
costs to be a key area of focus for our audit due to:

• the amount involved

• the management’s assessment of the obligation which is based
on past settlements and best estimates of current expectations.

(continued)

 

of provisions.

 

2. We evaluated the design and implementation of relevant
controls and carried out testing of management’s controls over recognising
provisions including the assessment of estimate involved and the timing of
utilisation of provisions.

 

3. We evaluated the management’s plan for restructuring and
transformation projects which gives rise to a constructive obligation
resulting in recognition of provisions.

 

4. We tested the basis of provision and verified the
arithmetical accuracy of the computations.

 

5. We evaluated that the provisions made are within the
approvals obtained for the restructuring and transformational projects.

 

6. We assessed the accounting principles applied by the Company
to measure and recognise the provisions and adequacy of disclosures in
accordance with the Indian Accounting Standards, applicable regulatory
financial reporting framework and other accounting principles generally
accepted in India.

 

NATIONAL
STOCK EXCHANGE OF INDIA LTD. (31ST MARCH, 2021)

From Audit Report on Standalone Financial Statements

 

Key audit matter

How our audit addressed the
key audit matter

Appropriateness of provision
for Contribution made to Investor Protection Fund Trust (IPFT)

 

[Refer Note 49 to the Consolidated Financial Statements]

 

During the year ended 31st March, 2021, in order to
enhance the effectiveness of the 
Investor Protection Fund (IPF)

Our audit procedures related to contribution to IPFT included:

 

• Obtaining details of SEBI communication in respect of
contribution to NSE IPFT.

 

• Testing the underlying supporting documentation for
contribution made to NSE IPFT.

(continued)

 

of the Stock Exchange, SEBI has comprehensively reviewed the
existing framework in consultation with Stock Exchanges. Basis such review,
SEBI decided to augment NSE IPF’s Corpus and assessed required IPF Corpus to
be Rs. 1,500 crores. The Holding Company was directed to transfer the
requisite amount to bring the Corpus to Rs. 1,500 crores.

 

 

The Holding Company has paid Rs. 1,701 crores to NSE IPFT during
the year ended 31st March, 2021. Additionally, the Holding Company
has also provided Rs. 121.05 crores in relation to the investors’ claims
related to defaulted members, which are yet to be processed by NSE IPFT. This
provision has been estimated by applying past historical experience of claims
admitted and paid to the outstanding claims of investors through the date of
approval of these Consolidated Financial Statements, including

the maximum amount that can

(continued)

 

• Obtaining confirmation from NSE IPFT with respect to amount of
contribution made and details relating to investors’ claims.

 

• Evaluating the method used by Management in estimating the
provision to be made in the Standalone Financial Statements in respect of
investors’ claims yet to be processed and paid by the NSE IPFT.

 

• Assessing the assumptions used in estimating the above
provision such as past experience, including their potential impact on the
range of possible outcomes on the amount of provision to be recognised in the
Standalone Financial Statements.

 

• Assessed the adequacy of presentation and disclosures made in
respect of these matters in the Consolidated Financial Statements.

(continued)

 

be paid to each investor in accordance with the bye-laws of NSE
IPFT.

 

Accordingly, an amount of Rs. 1,822.05 crores has been
recognised as an exceptional expense in the statement of profit and loss for the
year ended 31st March, 2021 considering the materiality of the
amount, nature and incidence of this transaction.

 

This area is considered as a key audit matter, considering these
transactions arising from regulatory development during the current period
had a significant effect on the Consolidated Financial Statements.
Additionally, evaluation of these matters requires management judgement and
estimation to determine the measurement of provisions to be recognised,
presentation of these transactions and related disclosures to be made in the
Consolidated Financial Statements.

(continued)

 

Based on our above procedures, we considered the estimate for
provision of contribution to be made by the Holding Company to NSE IPFT and
related disclosures and presentation made in respect of these transactions in
the Consolidated Financial Statements to be reasonable.

 

GLIMPSES OF SUPREME COURT RULINGS

8 Sakthi Metal Depot vs. CIT (2021) 436 ITR 1 (SC)

Capital Gains – Depreciable assets – So long as the assessee continues business, the building forming part of the block of assets would retain its character as such, no matter one or two of the assets in one or two years not used for business purposes disentitles the assessee for depreciation for those years – There is no provision whereby a depreciable asset forming part of block of assets within the meaning of section 2(11) can cease to be part of block of assets – Gains arising from transfer of such assets are to be taxed as short-term capital gains

The assessee, a partnership firm with its principal place of business at Kochi and a branch in Mumbai, had purchased a flat at a cost of Rs. 95,000 in Mumbai for business purposes in the financial year ending 31st March, 1974. Since its purchase the flat was used as the Branch Office of the assessee and on the capitalised cost of the building (Rs. 95,000) the assessee claimed depreciation and the same was allowed until the A.Y. 1995-96. The written down value of the flat as on 31st March, 1995 was Rs. 37,175.80. However, the assessee discontinued claiming depreciation for the flat for the A.Ys. 1996-97 and 1997-98. The flat was sold during the year 1997-98, that is, in the previous year relevant to the A.Y. 1998-99 on a total sale consideration of Rs. 71 lakhs. After deducting the expenses towards brokerage and legal expenses of Rs. 3,52,000, the assessee returned profit of Rs. 67,34,210 as long-term capital gains.

However, the A.O. held that profit arising on transfer of depreciable asset is assessable as short-term capital gains u/s 50. Applying the provisions of section 50, he assessed the profit on sale of the flat as short-term capital gains. The assessee’s contention before the A.O. was that it stopped using the flat for business purposes after the A.Y. 1995-96 and thereafter the flat was treated as investment and was so shown in the balance sheet. The A.O. did not accept the assessee’s contention that the flat in Mumbai was discontinued to be used for business purposes in the two years following the A.Y. 1995-96 because, according to him, the assessee’s attempt was only to avoid payment of tax on short-term capital gains.

In the appeal filed by the assessee, the CIT (Appeals), concurred with the A.O. and held that the building being a depreciable asset and being used for business purposes, sale of the same attracts tax on short-term capital gains u/s 50.

On a second appeal filed by the assessee, the Tribunal relying solely on the entry in the balance sheet of the assessee wherein the said flat was shown as investment, held that since the item was purchased in 1974, sale of the flat is assessable as long-term capital gains.

On an appeal filed by the Revenue, the High Court reversed the order of the Tribunal holding that the building which was acquired by the assessee in 1974 and in respect of which depreciation was allowed to it as a business asset for 21 years, that is, up to the A.Y. 1995-96, still continued to be part of the business asset and depreciable asset, and the non-use would only disentitle the assessee for depreciation for two years prior to the date of sale. However, there was no provision whereby a depreciable asset forming part of the block of assets within the meaning of section 2(11) can cease to be part of the block of assets. The description of the asset by the assessee in the balance sheet as an investment asset was meaningless and was only to avoid payment of tax on short-term capital gains on the sale of the building. According to the High Court, so long as the assessee continued business, the building forming part of the block of assets would retain its character as such, no matter one or two of the assets in one or two years not being used for business purposes disentitling the assessee for depreciation for those years. Further, instead of selling the building, if the assessee started using it after two years for business purposes, the assessee could continue to claim depreciation based on the written down value available as on the date of ending of the previous year in which depreciation was allowed last.

The Supreme Court dismissed the assessee’s appeal holding that the High Court had rightly restored the findings and the addition made in the assessment order.

FROM THE PRESIDENT

Dear BCAS Family,

I am penning down my message on the auspicious day of Krishna Janmashtami. The birth of Lord Krishna is celebrated with much fanfare for His incarnation on Earth was to ensure the destruction of evil and to save humanity. Today, I also pray to Lord Krishna to eradicate the pains inflicted on humankind through Covid-19.

We have been witness to the resilience of humankind and the adaptability to take on the crisis as an opportunity to rediscover the way we carry out our activities in various spheres of life. I would like to instil confidence in all of us through an inspiring quote of my GURU Mahatria Ra:

Transitions force changes.
Changes cause transformation.
Transformation ignites growth.
The womb of transition always delivers growth.

I would also like to caution that transition is always painful for those who are averse to change. The intensity of change during the last 18 months is such that during normal circumstances such transition would have taken at least a decade. Such times require massive scale of reskilling to remain relevant. A research paper from McKinsey Global Institute, ‘The Future of Work after Covid-19’, published in February, 2021 finds that 107 million workers may need to switch occupations by 2030 – up 12 million from a pre-pandemic estimate. This provides an insight for CA professionals, too, for embracing new areas of professional interest which focus more on management advisory and technology-based consulting. The need to move up the ladder of professional deliverance is all the more necessitated with increased limits of tax audits, discontinuation of GST audits and news about exploring discontinuing corporate audits for Small Companies.

On 20th August, the Tax Profession lost one of the strongest pillars in the sad demise of Adv. Shri V.H. Patil (affectionately called by all as ‘Patilsaheb’). He relentlessly worked as a binding force for all the professional associations and for the advancement of ethical values, professional astuteness and philanthropic activities. He was very actively associated with the BCAS and its cause for about five decades. His loss is an irreparable one and very difficult to fill. We shall always cherish his association and remember his noble deeds carried out over more than six decades.

BCAS is a forward-looking professional association and to equip its members for supporting the business community through valuable services in new domains, it has entered into an MOU with the India affiliate of the Institute of Risk Management (IRM) headquartered in the UK. It is a leading professional body for Enterprise Risk Management. The objective is to arrange webinars on risk-related topics, jointly work on thought leadership articles, provide access to members in IRM online events and to offer scholarships for IRM exams. This will be a golden opportunity to sharpen understanding of Enterprise Risk Management through formal education and offer advisory services in this specialised area.

The agony of tax-paying citizens and direct tax professionals continues due to partial functioning of the new e-filing portal. BCAS made a detailed 17-page representation on the glitches in the portal and also provided suggestions on improving the functionality of the portal. A representation was also made to the GST Council on various legal and procedural issues on the provisions relating to GST registration so as to bring clarity and certainty in the law.

During this month, the 25th International Tax & Finance (ITF) RRC was successfully concluded. It had record participation of around 500 delegates. The case study papers, presentation papers and panel discussions were of the highest quality. The highlight of the Conference was the Keynote Address by Mr. N.R. Narayana Murthy, the proponent of Corporate Governance, and the Opening Address by the President of ICAI, CA Mr. Nihar Jambusaria.

We also witnessed an excellent talk on ‘Mumbai’s Covid Pandemic Management Model’ by Mr. I.S. Chahal, IAS, Municipal Commissioner. He was invited to speak at the Late Shri Narayan Varma Memorial Lecture Series organised jointly by the BCAS Foundation, DBM India and Public Concern for Governance Trust. His talk was very inspiring and he provided great insights on how resources were mobilised and innovative ideas implemented to control the pandemic situation. There was also a felicitation of three awardees for their excellent contribution in the field of social work. The awardees were Adv. Maharshi Dave (SPARSH), Mr. Ravi Singh (Khalsa Aid) and Mr. D.S. Ranga Rao (RTI Activist).

The Tokyo 2020 Paralympics is currently underway. The physically challenged sportspersons participating in it signify what can be achieved with grit and determination. India has put up an excellent performance with the current tally of two gold, four silver and one bronze medal so far. This signifies that there is no easy way to the top. I want to end with a message from my GURU Mahatria Ra which signifies that to achieve something you have to sacrifice something:

It’s stupid to search for a rose bush without the thorns.
Unless you are willing to be chiselled, you cannot become the altar that’s worthy of being worshipped.
There is always a trade-off.

Best Regards,
 

Abhay Mehta
President

Society News

DIRECT TAX LAWS STUDY CIRCLE MEETING ON ‘INTERPLAY BETWEEN INCOME-TAX ACT, 1961 AND INSOLVENCY AND BANKRUPTCY CODE, 2016’ ON 21ST JULY, 2022
The Group leader, CA Priyanka Jain, took the group through the objective and preamble of the Insolvency and Bankruptcy Code, 2016 (IBC). The interplay between the legal provisions under the Income-tax Act, 1961 and IBC was discussed in detail. Further, judicial precedents relating to the moratorium period, resolution plan and liquidation were discussed.

After that, the group leader discussed the open issues relating to section 56(2)(viib) of the Income Tax Act, 1961 and section 281.

LECTURE MEETING ON UNSEEN CONNECTION BETWEEN UKRAINE WAR & DIGITAL TAXATION
BCAS had organized a hybrid lecture meeting on “Unseen Connection between Ukraine War & Digital Taxation” by CA Rashmin Sanghvi.

The Managing Committee, along with the Economic Study Group, organized the event on 1st August, 2022.

Key takeaways of the talk:

1. USSR Afghan War & Reagan Plan

USSR Afghan War and Reagan Plan use others to achieve your targets without losing your soldiers. A combination of Economic War + Supply of weapons to enemy of enemy works.

Year

Events

1975

The USA is ruled by Think Tank on several
subjects.

By 1950, USSR emerged as superpower number
2 (the USA being no.1).  Europe was
facing the heat of World War, and other countries were still referred to as
British Colonies who just got Independent and were busy putting their home
affair in place.

1975

So, there was a cold war between USSR and
US from 1950 to 1975.  By 1975, the USA
understood they could not fight a war with an equal or almost equal
opponent.  Thereby, a military war of
fighting with the USSR was ruled out.

1979

USSR (Union of Soviet Socialist Republics)
was a landlocked country in 1975 with huge mineral resources.  USSR desired entry into the Indian Ocean to
grow its trade and global presence. 
So, they decided to invade Afghanistan (Geopolitics), followed by entry
into Iran and Pakistan.  From the
Indian Ocean, Russia can reach European and African Markets.

1979- 1985

By nature, Afghan people are patriotic and
fighters.  So, the Afghan people
implemented Guerilla warfare techniques to fight the Russian Invasion.  Afghanistan derived support from the USA
through arms, ammunition, and financial support.  Thereby, Afghan tribals began to fight
against USSR. 

For the USA to support Afghan, they needed
a land base for Helicopters; since the USA had strained relations with Iran,
they approached Pakistan, and all weapons and ammunitions flowed from the USA
through Pakistan into Afghanistan during 1983 – 1985. 

1983

US President Reagan: Russia cannot be
defeated politically or militarily. Hence, in 1983, he approved the plan for
Economic War on USSR.  The plan was
prepared by US Think Tank much before Reagan became President.

The USSR was a Socialist Economy, and the
prices of essential products remained the same since 1914.  As a result, Economics was an unknown subject
for Russians in power. 

Soon, the global economy was
Dollarized.  All international trade,
speculation, money lending, everything happens in dollars.  As a result, all the countries must hold
the Dollar as a reserve. The USA could borrow from the world because of  the Dollarization. But the USSR could not
borrow. This was the beginning of the Economic War, and USA started financing
the war in Afghanistan. The USA had enough reserves to fund the war till
1989.

During his tenure, Regan announced the Strategic
Defense Initiative (SDI), nicknamed the “Star Wars program”,
GPS and computer-guided missile defence system with nuclear warheads intended
to protect the United States
from attack.

1985

Mikhail Gorbachev became Prime Minister in
1985 and soon realized that USSR reserves were depleted; further, nobody
outside the US would hold Ruble. On the other hand, US Dollar was owned
across the world and was gaining power

1985

over Russian Ruble.

Further, USSR had made a large investment
in building a missile defence system.

Knowing that USSR was building a weapon to
counter
Star Wars missiles, the US developed the Anti-Missile Missile, which means a
missile will strike another missile in the air, and a nuclear warhead will
fall in the sea, and the land area of the home country is not destroyed and
damaged.

1989

So, USSR accepted defeat in Afghanistan and
withdrew its army.

Both USSR and USA realized that
researching, developing and manufacturing missiles is a costly affair, so
they entered into a treaty to stop manufacturing missiles. President Regan
ordered to ignore this treaty, and that the USA would continue its R&D on
the missile.

But, by then, these Star Wars – Arms Race
had Forced USSR into poverty

1991

USSR crisis begins and it withdrew its army
from East Europe.

USA, Britain, France, and Germany (Great
Four or G4) decided that they would not buy anything from USSR. On the other
hand, USSR was dependent on other countries for its daily essentials – milk,
bread, fish, etc. G4 announced they would sell to USSR only for cash. This
forced the USSR into insolvency.

1992

East European countries start declaring
independence.

USSR breaks into 15 countries – Armenia,
Azerbaijan, Belarus, Estonia, Georgia, Kazakhstan, Kyrgyzstan, Latvia,
Lithuania, Moldova, Tajikistan, Turkmenistan, Ukraine, Uzbekistan, and
Russia.

USA won the ECONOMIC WAR.

1991-1993

Boris Yeltsin became Prime Minister in 1991
with absolutely no knowledge of economics. G4 agreed to support Russia
provided it agreed to become a Capitalist Country. Once Yeltsin agreed to the
terms of G4, considering the dire situation at home, G4 backed out from
providing financial support.

 

Financial
Impact on Ruble

Year

Ruble per USD

Jan 1990

4

1992

100

1997

31,500

1998

31.5 (1000 Ruble were
converted into 1 Ruble)

Feb 2022

101

Jul 2022

57

This currency depreciation meant that the
USSR went insolvent.

The Afghan War led to the disintegration of the USSR, and now only USA was the superpower.

2. Digital Taxation

Base Erosion and Profit Shifting (BEPS) is formed so that the tax planning strategies used by multinational enterprises do not exploit gaps and mismatches in tax rules to avoid paying tax. It is said: that BEPS reports on Digital Taxation have been mainly drafted by US Digital Corporations. They are extremely complicated for the taxpayer to comply with and the tax officer to administer.

BEPS Group for Digital Taxation could not come to any conclusion from 2013 to 2019. Probably because the USA would not agree to any sharing of tax revenue. Finally, in 2019, the OECD Secretariat published the report bypassing BEPS Group.

3. Ukraine Russia War & US Plan

A hypothesis to ponder upon:

  • Is Ukraine the current camel being used by the USA to further damage Russia?
  • Is the fear of Russia used to keep Europe under NATO/US influence?

The USA has established Bio Laboratories in Ukraine, intending to use these weapons against Russia in case of War. These Laboratories were technically and functionally financed by the USA.

NATO’s invitation to neighbouring countries to join the group was a clear indication of irritation to Russia. When Russia declared war on Ukraine, Germany said they would not start an exclusive gas line built from Russia to Germany by the Russian Government. This was a major setback for Russia.

The response of Russia is a response to the Economic War against the US. Russia cut Gas supplies to Europe and insisted on payments in Ruble or gold. In this crisis, USA and EU cannot ride out the crisis by increasing the money supply and interest rates. People need gas and food, not illusions.

Crises in Europe

  • US attacked Iraq and imposed sanctions on Iran. Iran and Iraq were selling oil in Euro. The war led to a fall in oil sales from Iran/Iraq to Europe, leading to a weakening Dollar and a strengthening Euro. Yet, Europe joined the US in weapons/Economic wars against Iraq & Iran.

  • US used Ukraine to fight Russia, which reduced the energy supply to Europe. As a result, Europe is facing a severe recession.


4. Philosophy

Unilateralism = Ego + Greed + Desire to Rule & Exploit others

On a global macro level – Powerful nations/ companies and individuals will try some strategies to rule and exploit others.

Earlier, Europe ruled the world & exploited the world. Russia & China have also acted similarly. It is important for India to remain independent.

Youth, wealth, power and indiscretion any one of these can cause destruction. Abuse of power harms the victims. However, it harms the Abuser even more than the Victim.

CA Rashmin Sanghvi answered all the questions raised by the participants present physically as well as raised on the chat and Q&A box.

YouTube Link:
https://www.youtube.com/watch?v=WzSPjJawGK4

QR Code:

REPORT ON THE MEETING OF THE HUMAN RESOURCE COMMITTEE
On 5th August, 2022, the Human Resource Committee of Bombay Chartered Accountants’ Society organized a talk by Shri Kaivalya Smart on The Life sketch of Shri Aurobindo. This was to commemorate the 150th Birth Anniversary of Shri Aurobindo coinciding with the 75th Anniversary of India’s Independence from British Rule. Important highlights of the presentation were:

Childhood and education

Shri Aurobindo was born in Calcutta on 15th August, 1872. In the early days, he studied in Darjeeling. In 1879, at the age of seven, his two elder brothers was taken to England for education and lived there for fourteen years. Brought up at first with an English family in Manchester, he joined St. Paul’s School in London in 1884 and in 1890 went with a senior classical scholarship to King’s College, Cambridge, where he studied for two years. In 1890, he also passed the open competition for the Indian Civil Service, but at the end of two years of probation failed to present himself at the riding examination and was disqualified from service.

In India

At that time, the Maharaja Gaekwad of Baroda was in London. Sri Aurobindo saw him, sought an appointment in the Baroda Service and left England for India, arriving there in February 1893.

Sri Aurobindo stayed for thirteen years, from 1893 to 1906, in the Baroda Service, first in the Revenue Department and in secretariat work for the Maharaja, and later on as Professor of English and, finally, as Vice-Principal in the Baroda College. He developed an interest in literary activities. The poetry, much later published from Pondicherry, was composed at Baroda.

At Baroda, he learnt India’s culture, Sanskrit and several modern Indian languages. He had command over many European languages. He spent his time in silent political activity since he was not granted public action due to his position at Baroda.

Political and public life

The outbreak of the agitation against the partition of Bengal in 1905 allowed him to give up the Baroda Service and join the political movement. He left Baroda in 1906 and went to Calcutta as Principal of the newly-founded Bengal National College.

The political action of Sri Aurobindo spanned eight years, from 1902 to 1910. During the first half of this period, he worked behind the scenes, preparing with other co-workers for the Swadeshi (Indian Sinn Fein) movement, and was part of the Indian National Congress. In 1906, Sri Aurobindo came to Bengal with this purpose and joined the New Party, which had been recently formed in the Congress. Sri Aurobindo persuaded its chiefs in Bengal to come forward publicly as an All-India party with a definite and challenging programme that changed the face of Indian politics in two years.

The newborn Nationalist party put forward Swaraj. Boycott of British and foreign goods and the fostering of Swadeshi industries to replace them, the boycott of British law courts, universities and colleges and the creation of a network of National colleges and schools, the formation of societies of young men to do the work of police and pursue a policy of passive resistance.

Sri Aurobindo founded the daily paper Bande Mataram, as an acting editor. The Bande Mataram continued till its abrupt winding up in 1908 when Sri Aurobindo was imprisoned.

Sri Aurobindo was prosecuted for sedition in 1907 and later acquitted. He was arrested in the Alipore Conspiracy. He published a weekly English paper, the Karmayogin, and a Bengali weekly, the Dharma. During his twelve months’ detention in the Alipore Jail, spent entirely in yoga practice, his inner spiritual was unfolding for an exclusive concentration. He had glimpses of divine intervention.

Pondicherry

In April 2010, he sailed to Pondicherry French colony in India, leaving Bengal. The spiritual work needed exclusive concentration of all his energies. Eventually, he cut off connection with politics, refused to accept the Presidentship of the National Congress and retired.

During his stay at Pondicherry from 1910 onward, he remained exclusively devoted to his spiritual work and sadhana.

In 1914, after four years of silent Yoga, he published a philosophical monthly, the Arya. His more important works, The Life Divine, The Synthesis of Yoga, Essays on the Gita, and The Isha Upanishad, appeared serially in the Arya. These works embodied much of the inner knowledge that had come to him in his yoga practice. These were concerned with the spirit and significance of Indian civilization and culture (The Foundations of Indian Culture), the true meaning of the Vedas (The Secret of the Veda), the progress of human Society (The Human Cycle), the nature and evolution of poetry (The Future Poetry) and the possibility of the unification of the human race (The Ideal of Human Unity). At this time, he had also begun to publish his poems written in England and those composed at Baroda. The Arya, after six and half years of uninterrupted publication, in 1921, stopped publication. Sri Aurobindo lived in retirement at Pondicherry with four or five disciples. Later on few more. The numbers grew so large that a community of sadhaks had to be inspired by the guidance of those who had left everything behind for a higher life. This was the foundation of the Sri Aurobindo Ashram.

Though, Sri Aurobindo began his practice of Yoga in 1904. He was initially gathering the essential elements of spiritual experience and a further quest for a more complete experience uniting and harmonising the two ends of existence, Spirit and Matter. Supramental Force for the transformation of mind and body. To realize has been the dynamic aim of Sri Aurobindo’s Yoga.

Sri Aurobindo left his body on 5th December, 1950.

The Mother carried on his work until 17th November, 1973.

SYNOPSIS OF LECTURE MEETING ON “UNILATERAL, BILATERAL AND MULTILATERAL SOLUTIONS FOR DIGITAL ECONOMY CHALLENGES

On 17th August, 2022, the Society organised a virtual lecture meeting on the topic “Unilateral, Bilateral and Multilateral solutions for digital economy challenges” by CA Radhakishan Rawal.

CA Rawal shares his deep knowledge on the subject through an engaging talk alongwith live polls on the digital platform.

The speaker explained that many business models today are running globally without any physical presence. Technology has moved too far, but the tax laws did not. So, the countries are facing challenges relating to the taxation of Digital Services without any physical presence. In relation to such digital services, he gave an overview of new tax laws already adopted alongwith proposed tax laws which may be implemented in the coming future. Below is the snapshot of his address:

Unilateral Solution –
This is the trade agreement wherein one country imposes restrictions on another and is not reciprocated.

  • Twenty seven countries have enacted Digital Services Tax (“DST”) or similar measures.
  • Fifteen countries have announced or proposed similar tax policies.
  • Rates range from 1.5% to 7.5%.


Difficulties in Unilateral solution

  • Complexities related to interpretation, understanding, manner of new provisions. (e.g., Levy of Equalization Levy @2%).

  • Approach of Tax Authorities is not to give up on any revenue.

  • The biggest issue is the credit for taxes paid in the home country of e-commerce operator (i.e. the entity which is earning the income) and if this is seen as a levy outside of the tax treaty, then the home country does not have obligation to give treaty benefit, which may lead to double taxation.

  • Question over availability of Tax treaty benefit? (Section 90).

  • Unilateral measures are found to be discriminatory in nature.

Bilateral Solution – These kind of trade deals benefits both parties to maintain economic stability. It can be signed in various areas such as double taxation agreement, tariff, custom clearance etc. Both countries have extended their hands to have access to each other’s market.

U N Solution – Article 12B: Article 12B was implemented in record time. It has reduced the complexities involved in DSTs & tried to make it simple. It has introduced the term “automated digital services”. An option is available for the taxpayer to pay taxes either on “gross basis” or “net basis” and (30% of qualified profit., qualified profit means relevant revenue * profitability ratio).

Difficulties in Bilateral solution

  • It is not a consensus solution among multiple countries.
  • Absence of mechanism to quickly implement Article 12B in tax treaties.
  • There is need for UN MLI as like BEPS MLI to see the practical uses of Article 12B.
  • Lack of incentives for countries to sign the bilateral tax treaty.
  • Initiation of work by UN tax committee.


Multilateral Solution –
Here, there exists three or more parties in a trade agreement. The main aim is to reduce the tariff to boost imports and exports. OECD has worked upon Pillar 1 as a solution to tax the digital economy.

Difficulties in Multilateral solution

  • Complex solution.
  • Challenge in Fair allocation of taxing rights.
  • Time consuming approach with many moving parts.
  • Political uncertainties.
  • Whether the USA will accept it? – Challenges in US Senate.
  • 2/3rd majority in Senate would be required to pass this law in US.

YouTube Link:
https://www.youtube.com/watch?v=DVuFRWOYajw

QR Code:


Miscellanea

I. TECHNOLOGY

16 A third of US social media users creating fake accounts

Fake social media accounts are usually associated with bot networks, but some research released Tuesday revealed many social media users are creating their own fake accounts for a variety of reasons.

According to a survey of 1,500 American social media users by USCasinos.com, one in three social media users in the US has numerous accounts on the social media networks they frequent. Nearly half (48%) of individuals with multiple accounts have two or more additional accounts.

The most common justifications given for opening extra accounts are to “express my opinions without being criticised” (mentioned by 41% of people) and “spy on someone else’s profile” (38%).

Other reasons for creating false accounts include “improving my chances of winning online contests” (13%), “increasing the likes, followers, and other metrics on my real account” (5%), “to fool others” (2.6%), and “to scam others” (0.4%).

Respondents were asked where they were making their fake accounts, and the top three responses were Twitter (41%), Facebook (31%), and Instagram (28%). Will Duffield, a policy analyst with the Cato Institute, a Washington, D.C.- based think tank, explained that this was the case because Twitter is significantly more open by default.

He told TechNewsWorld that Twitter power users frequently have many accounts, including ones for large audiences, smaller groups, and default open and private accounts.

According to the study’s co-author Ines Ferreira, noted that Twitter served as inspiration for the study’s online casino directory website. She told TechNewsWorld, that “We launched this analysis mostly because of the hoopla over the Elon Musk and Twitter merger.”

A legal battle over that accord between Musk and the Twitter board over the volume of fake accounts on the platform is still pending. However, the study’s examples of fake accounts are distinct from the ones that flustering Musk. Duffield said that “the survey conflates two quite different issues.”

“On the one hand, there are automated accounts—things that are controlled by machines and frequently used for spam. Elon Musk claims that there are too many accounts like that on Twitter, according to TechNewsWorld.” There are also pseudonymous accounts, which is what this study is looking at. Users that don’t want to use their real names operate them.

The survey also found that the majority of users (80.9%) kept their same sex when creating false profiles. According to the report, the primary exception to this rule is when users want to spy on other accounts. They therefore prefer to create a fake account with the opposite sex. Generally speaking, 13.1% of survey respondents indicated they created fake accounts using the other sex.

There are lots of reasons, according to Duffield, why we don’t want everything we do online to be attached to our real names. And it’s not always due to Cancel Culture or something like.

He said, that the ability to compartmentalise identities or take on several personalities without committing to them on the internet allows us to present different aspects of ourselves at once. The use of pseudonyms online is fairly common. Using genuine names is, in fact, a more modern expectation, he claimed.

Accounts Made Without Remorse

The study also discovered that the majority of false account creators (53.3%) prefer to conceal their behaviour from their close friends. When they do mention their false accounts, friends (29.9%) and family (9.9%) are the most likely recipients, followed by partners (7.7%).

The researchers also found that 53.3 percent of phoney account owners were millennials, compared to Gen X’s average of three and Gen Z’s average of two.

According to the report, those who create phoney accounts seem to be free to do so. 94% of the interviewees said no when asked if their bogus accounts had ever been reported to the platforms where they were created.

According to Ferreira, “these platforms frequently introduce new algorithms to report these accounts, but the majority of them never get reported.” It’s quite difficult to distinguish between all of the false accounts since there are so many of them and they are so simple to create.

“These platforms are going to think a little bit more how they’re going to do it after the Elon Musk deal with Twitter,” she continued.

Duffield, though, minimised the necessity of monitoring user-created false accounts. There is no justification for the platforms to view the creation of these accounts as a concern, he continued, given it is not against the terms of service.

He continued, “Even though they don’t have genuine names, these accounts are run by real individuals, and they act like real people. They only send messages to one individual at a time. They’re typing stuff out slowly. Their day/night cycle is regular. They don’t send out 1,000 messages to 100 different people at once, at all hours of the day.

Unharmful fakes?

Fake accounts generated by individuals are less damaging to the networks hosting them than fake accounts produced by bots, according to Duffield.

According to a theory, users who use pseudonymous accounts or accounts unrelated to their real identities misbehave more frequently, but from the standpoint of moderation, banning a pseudonymous account is the same as banning a real person, he said.

Facebook has a real name policy, despite receiving a lot of criticism for it over the years, he continued. It is currently being purposefully under-enforced, in my opinion.

He insisted, that “It isn’t a problem for the platforms, as long as the pseudonymous user is following the regulations,”.

Bot accounts don’t support a social media platform’s revenue model, but phoney user accounts do.

According to Duffield, “If the pseudonymous account is being utilised by a real human being, they are still receiving adverts.” It’s not like a robot clicking on stuff by itself. Regardless of the name on the account, if people are watching and receiving relevant advertising, it is not a big deal from the platform’s perspective.

Platforms, advertisers, and prospective buyers are interested in the activity since it is shown in the statistics for monthly active users, he stated. “People frequently abandon accounts, thus the total number of accounts is a worthless figure.” Still, Ferreira claimed that any kind of fraudulent account weakens the trust of a social media network. She predicted that eventually there would be more fraudulent users than actual ones, thus something needed to be done right away.

[Source: technewsworld.com dated 10th August, 2022.]

II. WORLD NEWS

17 US pharmacy chains ordered to pay $650 m in Ohio opioids suit

A federal judge has ruled that America’s three largest pharmacy chains must pay $650.5m (£539.8m) for helping fuel a painkiller crisis in two Ohio counties. In November, a federal court found Walgreens Boots Alliance, CVS and Walmart helped create an oversupply of addictive opioid pills.

The money will be used to help combat the impact of the crisis in Lake and Trumbull counties. The companies plan to appeal. Millions of people in the US have become addicted to opiate-based painkillers such as fentanyl and OxyContin over the last 20 years.

Nearly half a million deaths were attributed to painkiller overdoses between 1999 and 2019. In court, attorneys for Lake and Trumbull counties – both near Cleveland – put the total financial cost of the crisis at $3.3 billion. Both counties, like other jurisdictions across the US, have argued that the crisis has put an enormous strain on local resources, social programmes and legal systems.

A failure to ensure that prescriptions were valid, their attorneys have argued, created a public nuisance as vast quantities of pills flooded their communities.

Between 2012 and 2016, more than 80 million painkillers were reportedly distributed in Trumbull County – about 400 pills per resident. In Lake County, the figure stood at 61 million pills over the same time frame. A US district judge ruled that Lake County will receive $306m over 15 years, while Trumbull County will receive $344m.

In the short-term, the three companies have been ordered to pay about $87m to cover the first two years of the plan. The ruling was quickly praised by officials from both counties.

Lake County Commissioner John Hamercheck, for example, said that the ruling “marks the start of a new day in our fight to end the opioid crisis”. The three companies have repeatedly denied the allegations and claimed they attempted to prevent painkillers from being diverted towards illicit use. Additionally, they argued that it was doctors – rather than pharmacies – that ultimately determined how many pills were prescribed and to whom.

When contacted by the BBC, all three companies said they will appeal the ruling. “We never manufactured or marketed opioids nor did we distribute them to the ‘pill mills’ and internet pharmacies that fuelled this crisis,” Walgreens said in a statement.

More than 3,000 lawsuits have been filed against opioid manufacturers and pharmacies in the hopes of recouping the costs spent combating the crisis.

[Source: BBC.com dated 18th August, 2022.]


18 PwC fined nearly £1.8m over BT fraud audit failures

PwC has been fined almost £1.8m for failing to properly scrutinise the accounts of telecoms company BT after a £500m accounting fraud had been uncovered at its Italian operation.

The accounting giant failed to act with the “requisite professional scepticism” and did not obtain “sufficient appropriate audit evidence” in its work on BT’s 2017 financial statements, which had to be adjusted by £513m because of the Italian scandal, according to the Financial Reporting Council (FRC).

The UK’s accounting regulator also severely reprimanded PwC, which was paid £4.3m for its work on BT’s accounts, and Richard Hughes, the audit engagement partner at the firm. The FRC fined PwC £1.75m and Hughes £42,000.

“The respondents failed to act with the requisite professional scepticism [and] did not obtain sufficient appropriate audit evidence,” the FRC said in its 27-page final ruling published on Monday. “The respondents did not approach the audit of BT’s treatment of the debt adjustments with the necessary professional scepticism and they failed to adequately document their audit work across the entirety of the BT Italy adjustments.”

The 2017 scandal wiped almost £8bn off BT’s market value, prompted a restructure including the axing of 4,000 jobs, and ultimately was a factor that resulted in the departure of former chief executive Gavin Patterson as investors lost confidence in management.

The FRC also said PwC and Hughes had not produced an audit that was understandable to third parties.

“The respondents also failed to prepare audit documentation that was sufficient to enable an experienced auditor, having no previous connection with the audit, to understand the nature, timing and extent of the audit procedures performed,” said the regulator.

However, the FRC’s executive counsel said its decision did not mean that BT’s 2017 financial statements were misstated, that the £513m adjustment for Italy was wrong or that the breaches it found were “intentional, dishonest or reckless”.

The FRC fined PwC and Hughes £2.56m in relation to the audit of the 2017 accounts, but reduced this by 30% because the issues were raised by the parties at an early stage.

“In determining the financial impact of a major fraud detected within a business, difficult but important issues relating to appropriate accounting treatment and disclosures will need to be addressed,” said the FRC deputy executive counsel, Claudia Mortimore.

“It is vital that these are subject to robust audit so that the users of financial statements can have confidence that the financial impact is properly and accurately stated in subsequent financial statements. The sanctions imposed in this case, where certain elements of the adjustments following a fraud were not subject to the required level of professional scepticism, underscore this message and will serve as a timely reminder to the profession.”

PwC has been sanctioned five times since 2018.

The FRC has previously fined PwC a total of more than £17m in relation to audit failings for clients Taveta, Redcentric, Kier Group and Galliford Try. In 2020, PwC was the largest accountancy firm in the UK with revenue of £3.5bn, of which £754m was for auditing services.

“We are sorry that aspects of this audit were not of the required standard,” said a spokesperson for PwC. “We have made significant investment in strengthening audit quality in recent years, which has been recognised in improved quality inspection results. We remain committed to maintaining and building on this progress through the delivery of consistently high-quality audits.”

[Source: theguardian.com dated 8th August, 2022.]

III. ENVIRONMENT

19 Climate change: Drought highlights dangers for electricity supplies

Overall, the amount of electricity produced by hydropower, which uses water to generate power, has decreased by 20%. Additionally, access to nuclear power plants that use river water for cooling has been restricted. There are fears that the shortfalls are a taste of what may occur in winter.

High temperatures in the UK are reducing the amount of energy produced by fossil, nuclear, and solar sources. That is because the technology in power plants and solar panels work much less well in high temperatures.

As Europe looks for alternate sources of energy in the wake of Russia’s invasion of Ukraine, the prolonged dry period is adding to the strain on energy supplies.

  • Millions hit by hosepipe bans as drought declared

  • US Senate passes sweeping $700bn economic package

  • Causes of deadly dry-lightning wildfires revealed

“Hydropower is a vital source of energy for Europe, but as rivers and reservoirs dry up, it is becoming much harder for facilities to generate electricity. Around 1/5 of Italy’s energy comes from hydropower, however this percentage has decreased by almost 40% during the past 12 months.”

Similar trends can be seen in Spain, where electricity production is down 44%, per data from energy analysts Rystad Energy.

According to Fabian Rnningen, a power expert with Rystad, hydropower can be extremely unpredictable, but 40% is by far the most extreme. He emphasises that not only are the numbers declining across all of Europe, but also in the major hydropower-producing nations. It’s really a big impact.

Hydroelectricity is a problem in Norway as well. It issued a warning that unless its reservoirs were full, it might not be able to continue exporting energy to nations like the UK. Some in the hydro industry say that lack of investment in modernisation and in transmission lines are also causing problems.

Eddie Rich from the International Hydropower Association says that we are going to face a problem this winter. And that should be a wake-up call to have more investment in the infrastructure for the next few years.

The exceptionally hot weather is also hitting nuclear power production, especially in France. Around half of the 56 reactors in the fleet are offline, with several affected by a systemic issue with corrosion.

When temperatures are high, water from rivers that are now running low is frequently used to cool those reactors that are operating.

[Source: BBC.com dated 12th August, 2022.]

Letters to The Editor

Dear Sir,

This has reference to the article “Rethinking the Ind AS-116 Lease Standard’ by Mr. H.J.Tavaraia in the July, 2022 issue of BCAJ. Whilst the article is well thought of, there are certain comments which I would like to offer:

  • The issue raised on increase in the work load for millions of lessees does not cut much ice since Ind AS does provide exemptions for leases which are less than 1 year and low value leases. Further, with data recorded and processed electronically, the increase in the work load if at all will be marginal. It is at best a different way of analysing and processing transactions.

  • On the issue of “no asset cover”, the lenders in any case would keep in mind the fact that ROUs represent intangible assets which they would appropriately factor in whilst laying down the terms and covenants.

  • The issue of severe distortion due to a rise in EBITA and ROCE is mitigated due to the fact that it will be similar across the main user industries.

  • The shift in the net operating cash flow improving but net financing activities having a greater pay-out is an economic reality which we cannot escape from.

  • Some of the disclosures whilst being relevant should not lead to an overkill since Ind AS-116 already provides for enough relevant disclosures.

To conclude, IndAS-116 itself represents a rethink reflecting economic realities which are in accordance with the conceptual framework for preparation of financial statements to reflect substance rather than the legal form!

CA Zubin F. Billimoria


Dear Sir,

The August, 2022 issue of BCAJ came as a pleasant surprise. It was a treat to read the experiences of several past presidents of BCAS and the passionately written poems on India@75. Thank you for the beautiful package of contents.

I also see that you have now taken over as the editor of BCAJ. I appreciate the importance given to accounting, the core of our profession, in your first editorial where an editor, for the first time, has signed in this manner: Dr. CA Mayur B. Nayak.

Many readers might have missed it. A Dr. denotes what we learned on Day 1 of accounting; ‘Real’ accounts are ‘debited’ when they ‘come in’. A warm welcome to you, and by the end of your term, readers can be expected to ‘credit’ you for the memorable things you did at BCAJ.

Vinayak Pai

Regulatory Referencer

Direct Tax

1. Income-tax (22nd Amendment) Rules, 2022: Section 158AA provides that where the Commissioner or Principal Commissioner is of the opinion that any question of law arising in the case of an assessee (relevant case) is identical with a question of law arising in his case for any another assessment year (another case) which is pending in appeal before the Supreme Court against an order of High Court which was in favour of assessee, he may direct the Assessing Officer (AO) to make an application to the Appellate Tribunal in the prescribed form stating that an appeal on the question of law in the relevant case may be filed when the decision on the question of law becomes final in the other case. Form No. 8A is now prescribed in which the AO shall make an application to the Appellate Tribunal. [Notification No. 83/2022 dated 12th July, 2022.]

2. Certain forms, returns, statements etc., prescribed in Appendix II to be furnished electronically:
Forms 3CEF, 10F, 10IA, 3BB, 3BC, 10BC, 10FC, 28A, 27C, 58D, 58C and Form 68 are to be filed electronically. [Notification No. 3/2022 dated 16th July, 2022.]

3. Condonation of delay in filing Form No. 10BB for A.Y. 2018-19 and subsequent years:
CBDT had, in its earlier circular, authorized the Commissioner of Income Tax to admit applications for condonation of delay in filing Form 10BB for A.Y. 2018-19 and subsequent years where the delay is up to 365 days and decide on merits. Now, the Pr. Chief Commissioners of Income-tax /Chief Commissioners of Income-tax are authorized to admit such applications and decide on merits where there is a delay beyond 365 days upto three years in filing Form No. 10BB for A.Y. 2018-19 or any subsequent assessment years. [Circular No. 15 of 2022 dated 19th July, 2022.]

4. Condonation of delay in filing Form No. 10B for A.Y. 2018-19 and subsequent years:
CBDT had, in its earlier circular, authorized the Commissioner of Income Tax to admit applications for condonation of delay in filing Form 10B for A.Y. 2018-19 and subsequent years where the delay is up to 365 days and decide on merits. Now, the Pr. Chief Commissioners of Income-tax /Chief Commissioners of Income-tax are authorized to admit such applications and decide on merits where there is a delay beyond 365 days upto three years in filing Form No. 10B for A.Y. 2018-19 or any subsequent assessment years. [Circular No. 16 of 2022 dated 19th July, 2022.]

5. Condonation of delay in filing Form Nos. 9A and 10:
CBDT had, in its earlier circular, authorized the Commissioner of Income Tax to admit applications for condonation of delay in filing Forms 9A and 10 for A.Y. 2018-19 and subsequent years where the delay is upto 365 days. Now, the Pr. Chief Commissioners of Income-tax/Chief Commissioners of Income-tax are authorized to admit such applications of condonation of delay and decide on merits where there is a delay beyond 365 days upto three years in filing such forms for A.Y. 2018-19 or any subsequent assessment years. [Circular No. 17 of 2022 dated 19th July, 2022.]

6. Procedure of PAN application and allotment through Simplified Proforma for incorporating Limited Liability Partnerships (LLPs) electronically (Form: FiLLiP of Ministry of Corporate Affairs). [Notification No. 4/2022 dated 26th July, 2022.]

7. Reduction of time limit for verification of Income Tax Return (ITR) from within 120 days to 30 days of transmitting the data of ITR electronically:  The time limit for e-verification or submission of ITR-V shall now be 30 days from the date of transmitting/uploading of any electronic transmission of Income Tax Return data on or after 1st August 2022.  

Where ITR data is electronically transmitted and e-verified/ITR-V submitted within 30 days of transmission of data, then in such cases, the date of transmitting the data electronically shall be considered as the date of furnishing the return of income.

Where ITR data is electronically transmitted but e-verified or ITR-V submitted beyond the time limit of 30 days of transmission of data, then in such cases, the date of e-verification/ITR-V submission shall be treated as the date of furnishing the return of income and all consequences of late filing of return under the Act shall follow. [Notification No. 5/2022 dated 29th July, 2022.]

8. Conditions notified for the proviso to section 17(1)(ii):
Clause (ii)(c) of the proviso to section 17(1) states that any sum paid by the employer in respect of any expenditure actually incurred by the employee on his medical treatment or treatment of any member of his family in respect of COVID-19 illness shall not be taxed as a perquisite, subject to such conditions, as may be notified by the Central Government. The CBDT has notified the conditions for the purpose of this section. [Notification No. 90/2022 dated 5th August, 2022.]

9. Conditions notified for proviso to section 56(2)(x):
Certain taxpayers have lost their life due to Covid-19. In order to provide relief to the family members of such taxpayer, clause (XIII) of the proviso to section 56(2)(x) provides that ex-gratia payment received by family members of a person from the employer of such person or from another person on the death of that person due to Covid-19 shall be exempt from tax, subject to such conditions as may be notified by the Central Government. The CBDT has notified the conditions for the purpose of this section. [Notification No. 91/2022 and 92/2022 dated 5th August, 2022.]

10. Income-tax (24th Amendment) Rules, 2022:
The Finance Act 2022 amended sections 12A and 10(23C) to provide that where the total income of a trust or institution under both regimes, without giving effect to an exemption u/s 10(23C) or sections 11 and 12, exceeds the maximum amount which is not chargeable to tax, such trust or institution shall keep and maintain books of account and other documents as may be prescribed. The CBDT has inserted Rule 17AA prescribing the books of account and other documents to be kept and maintained and the form and manner in which it should be maintained.  [Notification No. 94/2022 dated 10th August, 2022.]

11. Income-tax (25th Amendment) Rules, 2022:
Institutions exercising option under Explanation 3 to the third proviso to 10(23C) must file Form 10 before the due date of filing the return of income, providing certain details. [Notification No. 96/2022 dated 17th August, 2022.]

COMPANY LAW

I. COMPANIES ACT

1. Spending of CSR funds for activities w.r.t ‘Har Ghar Tiranga’ is an eligible CSR activity: The MCA has clarified that spending of CSR funds for activities of mass scale production and supply of the National Flag, outreach and amplification efforts and other related activities, are eligible CSR activities under item no. (ii) of Schedule VII of the Companies Act related to ‘Promotion of education relating to culture’. ‘Har Ghar Tiranga’, a campaign under the aegis of Azadi Ka Amrit Mahotsav, is aimed to invoke the feeling of patriotism in the hearts of the people. [General Circular No. 08/2022, dated 26th July, 2022.]

2. Companies (Accounts) Fourth Amendment Rules, 2022:
The MCA has made the following amendments to the Companies (Accounts) Rules, 2014: 1) The books of account and other relevant books and papers maintained in electronic mode shall remain accessible in India, at all times so as to be usable for subsequent reference.  2) Provided that the back-up of the books of account and other books and papers of the company maintained in electronic mode, including at a place outside India, if any, shall be kept in servers physically located in India on a daily basis. 3) W.r.t. intimation to RoC on an annual basis (when filing financial statements) – where the service provider is located outside India, the name and address of the person in control of the books of account and other books and papers in India.” [MCA Notification G.S.R.624(E) dated 5th August, 2022.]

II. SEBI

3. Govt. declares “zero coupon zero principal instruments” as securities for the purposes of SCRA, 1956: The Central Government has declared “zero coupon zero principal instruments” as securities for the purposes of Securities Contracts (Regulation) Act, 1956. “Zero coupon zero principal instrument” means an instrument issued by a Not-for-Profit Organisation which shall be registered with Social Stock Exchange segment of a recognised Stock Exchange in accordance with the regulations made by SEBI. [Notification No S.O. 3210(E), dated 15th July, 2022.]    

4. Fee and other charges payable to SEBI subject to GST @ 18% effective 18th July, 2022: The GST Council, in its meeting held on 28th June, 2022 and 29th June, 2022, recommended withdrawing the GST exemption granted to services by SEBI and the same was notified vide. Notification No. 4/2022 dated 13th July, 2022, Accordingly, the Board has informed all Infrastructure Institutions, Companies who have listed/are intending to list their securities, other intermediaries and persons who are dealing in securities market that fees and other charges payable to SEBI shall be subject to GST. [Circular No. SEBI/HO/GSD/TAD/CIR/P/2022/0097, dated 18th July, 2022.]

5. Amendment in LODR norms, insertion of New CHAPTER IX-A w.r.t obligations of social enterprises: The SEBI has notified the SEBI (Listing Obligations and Disclosure Requirements) (Fifth Amendment) Regulations, 2022. A new CHAPTER IX-A has been inserted, which prescribes the obligations of social enterprises. It is applicable on: a) For Profit Social Enterprise whose designated securities are listed on the applicable segment of the Stock Exchange(s); b) Not for Profit Organization that is registered on the Social Stock Exchange(s). [Notification F No. SEBI/LAD-NRO/GN/2022/88, dated 25th July, 2022.]

6. New guidelines for settlement of running account of client’s Funds lying with Trading Member:
Under the new guidelines, the settlement of running account of funds of client shall be done by Trading Member after considering the end of the day obligation of funds as on date of settlement across all Exchanges on first Friday of Quarter for all the clients, i.e., the running account of funds shall be settled on first Friday of Oct 2022, Jan 2023, Apr 2023, Jul 2023 and so on for all the clients. If the first Friday is a trading holiday, then such settlement shall happen on the previous trading day. [Circular No. SEBI/HO/MIRSD/DOP/P/CIR/2022/101, dated 27th July,2022.]

7. Timelines for implementation of mutual funds nomination norms extended to 1st October, 2022: SEBI vide Circular dated 15th June, 2022 mandated submission of nomination details/declaration for opting out of nomination for investors subscribing to mutual fund units on or after 1st August, 2022. Based on the representation received from the Association of Mutual Funds in India (AMFI), SEBI has decided to extend the timelines for implementation of MF nomination norms to 1st October, 2022. [Circular No. SEBI/HO/IMD/IMD-I DOF1/P/CIR/2022/105, dated 29th July, 2022.]

8. Framework for automated deactivation of trading and Demat accounts in cases of inadequate KYCs: SEBI has released a framework for automated deactivation of trading and Demat accounts of investors in case of inadequate KYC details. SEBI observed that in some cases, accurate/updated addresses of clients are not maintained, and any notices served during any enforcement proceedings remain unserved. Under the new framework, the stock exchanges (except commodity derivative exchange and derivatives) shall arrange to physically serve notice to the entities. [Circular No. SEBI/HO/EFD1/EFD1_DRA4/P/CIR/2022/104, dated 29th July, 2022.]

9. Framework to curb inadvertent trades by designated persons by freezing their PAN during trading window closure: SEBI has asked exchanges/depositories to develop a system wherein the PAN of a Company’s designated person (DP) can be frozen for a specific period to curb inadvertent trades during the trading window closure. Now, the designated depository will provide access to a listed Company on a portal specifying the trading window closure period. The portal will auto-populate details of DPs like PAN and name. The listed Companies will update the PAN of DPs to be frozen and the “start and end date” of the trading window closure period. [Circular No. SEBI/HO/ISD/ISD-SEC-4/P/CIR/2022/107, dated 05th August, 2022.]

FEMA

1. Liberalisation of ECB limits legislated: RBI, in consultation with the Central Government, had announced (Refer this feature in August 2022, BCAJ) following ECB liberalisation measures which would be available for ECBs to be raised till 31st December, 2022: (i) To increase the automatic route limit from USD 750 million or equivalent to USD 1.5 billion or equivalent. (ii) To increase the all-in-cost ceiling for ECBs, by 100 bps. These relaxations have now been legislated by making necessary amendments to the relevant regulations. [Notification No. FEMA.3(R)(3)/2022-RB, dated 28th July, 2022 and A.P. (DIR Series 2022-23) Circular No. 11, dated 1st August, 2022.]

2.    New Overseas Investment Rules notified: The Finance Ministry, in consultation with RBI, has now framed the revised Rules and Regulations, overhauling outward investment provisions substantially. The new rules supersede the Foreign Exchange Management (Transfer or Issue of Any Foreign Security) Regulations, 2004 and the Foreign Exchange Management (Acquisition and Transfer of Immovable Property Outside India) Regulations, 2015. Changes made by the Government and RBI on 22nd August, 2022 in line with the amendment to Section 6 of FEMA in 2015 are as follows:

Title

Dealing with

FEM (Overseas Investment) Rules, 2022

Non-Debt Instruments

FEM (Overseas Investment) Regulations, 2022

Debt Instruments

FEM (Overseas Investment) Directions, 2022

Directions to be followed by Authorised Dealer-Banks

Consequential amendments have been made to the ‘Master Direction on Reporting’ and ‘Master Direction on Liberalised Remittance Scheme (LRS)’. Some of the significant changes made compared to the earlier provisions are: New terms introduced with definitions; Clarity provided with respect to various definitions and concepts; Approvals for a few investment options have now been removed; and Liberalisation on certain key fronts of structuring of overseas investments. [Central Government Notification No. G.S.R. 646(E) dated 22nd August, 2022; Notification No. FEMA 400/2022-RB dated 22nd August, 2022; AP DIR Circular No. 12 dated 22nd August, 2022; Amendments to Master Direction no. 18 on ‘Reporting’ and Master Direction No. 7 on ‘Liberalised Remittance Scheme (LRS)’.]

ICAI ANNOUNCEMENT

1. Withdrawal of ‘Guide to Reporting on Proforma Financial Statements (Pursuant to the SEBI (Issue of Capital and Disclosure Requirements) Regulations, 2009): 
ICAI has withdrawn this Guide since it was based on old SEBI regulations that do not exist at present and since SAE 3420, Assurance Engagements to Report on the Compilation of Pro Forma Financial Information Included in a Prospectus provides sufficient guidance for practitioners. [4th August, 2022.]

ICAI MATERIAL

Valuation

1. Valuation: Professionals’ Insight, Series – 7. [20th July, 2022.]
2. Technical Guide on Valuation of Business in Telecom Tower Industry. [20th July, 2022.]

Corporate Law Corner Part B: Insolvency and Bankruptcy Law

6 Vallal RCK vs. M/s Siva Industries and Holdings Ltd. and Ors.
Civil Appeal Nos. 18111812 of 2022

Supreme Court Of India Civil Appellate Jurisdiction

FACTS

IDBI Bank filed an application u/s 7 of the IBC for initiation of CIRP. The NCLT admitted the application, and CIRP was initiated. The RP had presented a Resolution Plan before the CoC. The Plan could not meet the requirement of receiving 66% votes. Later, the RP filed an application seeking initiation of the liquidation process. The appellant, the promoter, filed a settlement application before the NCLT u/s 60(5) of the IBC, showing his willingness to offer a one-time settlement plan.

The appellant sought necessary directions to the CoC to consider the terms of the Settlement Plan as proposed by him. Deliberations took place in the COC meetings with regard to the said Settlement Plan. Initially, the Plan received only 70.63% votes. Subsequently, one of the financial creditor having a voting share of 23.60%, decided to approve the Settlement Plan. The Plan stood approved by more than 90% voting share; the RP filed an application seeking necessary directions. The NCLT ordered the RP to reconvene a meeting of the CoC and place the e-mail of financial creditor before it. Accordingly, in the 17th CoC meeting, the Settlement Plan was approved with a voting majority of 94.23%. Accordingly, the RP filed an application before the ld. NCLT seeking withdrawal of CIRP in view of the approval of the said Settlement Plan by CoC.

The NCLT, while rejecting the application for withdrawal, held the Settlement Plan was not a settlement simpliciter u/s 12A of the IBC but a “Business Restructuring Plan”, and initiated liquidation process. The appellant preferred two appeals before the learned NCLAT, and the same came to be dismissed. Hence, the present appeals.

QUESTION OF LAW

Whether the Adjudicating Authority can adjudicate over the commercial wisdom of CoC considering the minimum requirement to meet 90% voting share for approval of withdrawal of CIRP u/s 12A of the Insolvency and Bankruptcy Code, 2016 read with Regulation 30A of the Insolvency and Bankruptcy Board of India (Insolvency Resolution Process for Corporate Persons) Regulations, 2016 ?


RULING

Adjudication over commercial wisdom of CoC

The commercial wisdom of the CoC has been given paramount status without any judicial intervention to ensure the completion of the stated processes within the timelines prescribed by the IBC. It has been held that there is an intrinsic assumption, that financial creditors are fully informed about the viability of the corporate debtor and the feasibility of the proposed resolution plan. They act based on thorough examination of the proposed resolution plan and assessment made by their team of experts.

Requirement to meet 90% voting share for approval of withdrawal of CIRP qua allowing for commercial wisdom to prevail

The provisions u/s 12A of the IBC have been made more stringent compared to Section 30(4) of the IBC. Whereas u/s 30(4) of the IBC, the voting share of CoC for approving the Resolution Plan is 66%, the requirement u/s 12A of the IBC for withdrawal of CIRP is 90%.

A perusal of the said Regulation would reveal that where an application for withdrawal u/s 12A of the IBC is made after the constitution of the Committee, the same has to be made through the interim resolution professional or the resolution professional, as the case may be. The application has to be made in Form FA. It further provides that when an application is made after the issue of invitation for expression of interest under Regulation 36A, the applicant is required to state the reasons justifying withdrawal of the same. The RP is required to place such an application for consideration before the Committee. Only after such an application is approved by the Committee with 90% voting share, the RP shall submit the same along with the approval of the Committee to the Adjudicating Authority. It could thus be seen that a detailed procedure is prescribed under Regulation 30A of the 2016 Regulations as well.

When 90% and more of the creditors, in their wisdom after due deliberations, find that it will be in the interest of all the stakeholders to permit settlement and withdraw CIRP, the Adjudicating Authority or the Appellate Authority cannot sit in an appeal over the commercial wisdom of the CoC. The interference would be warranted only when the Adjudicating Authority or the Appellate Authority finds the decision of the CoC to be wholly capricious, arbitrary, irrational and de hors the provisions of the statute or the Rules.

Considering the case of Swiss Ribbons Private Limited and Another vs. Union of India and Others, it was held that:

Main thrust against the provision of Section 12A is the fact that ninety per cent of the Committee of Creditors has to allow withdrawal. This high threshold has been explained in the ILC Report as all financial creditors have to put their heads together to allow such withdrawal as, ordinarily, an omnibus settlement involving all creditors ought, ideally, to be entered into. This explains why ninety per cent, which is substantially all the financial creditors, have to grant their approval to an individual withdrawal or settlement. In any case, the figure of ninety per cent, in the absence of anything further to show that it is arbitrary, must pertain to the domain of legislative policy, which has been explained by the Report.


HELD

The decision of the CoC is taken after the members of the CoC have done due deliberations to consider the pros and cons of the Settlement Plan and exercising their commercial wisdom. Therefore, neither the ld. NCLT nor the ld. NCLAT were justified in not giving due weightage to the commercial wisdom of the CoC.

If the CoC arbitrarily rejects a just settlement and/or withdrawal claim, the ld. NCLT, and thereafter the ld. NCLAT can always set aside such decision under the provisions of the IBC. There must be the need for minimal judicial interference by the NCLAT and NCLT in the framework of IBC.

The appeals are allowed.

Corporate Law Corner Part A : Company Law

9 Kejriwal Casting Limited
RoC Adjudication Order
ROC/ADJ/2022
Registrar of Companies, West Bengal
Date of order: 27th April, 2022

Order of Adjudicating Authority for violation of section 134 of the Companies Act, 2013.

FACTS
M/s KCL had contravened provisions of section 134 of the Companies Act, 2013 in as much as it had not prepared the report of the Board of Directors for the financial year ended 31st March, 2019 and 31st March, 2020.

M/s KCL and its Managing Director had filed suo moto application for adjudication of offence u/s 454 of the Companies Act, 2013 for violation of section 134 of Companies Act, 2013 and the penalty for such default prescribed under sub-section 8 of section 134 is as follows:

“If a company is in default in complying with the provisions of this section, the company shall be liable to a penalty of three lakh rupees and every officer of the company who is in default shall be liable to a penalty of fifty thousand rupees.”

Thereafter, in response to the application, the office of RoC, West Bengal, issued a Notice of Inquiry vide no. ROC/ADJ/2022/2482 and 2483 dated 15th March, 2022 to M/s KCL and its Managing Director to appear personally or through a representative before the adjudicating authority as per Rule 3(5) of Companies (Adjudication of Penalties) Rule, 2014 on the specified date mentioned in the said notice.

Mr. MRG, practising Company Secretary, who appeared on behalf of M/s KCL and its Managing Director, had submitted the reasons for default for such delay:

i. For the Financial Year ended on 31st March, 2019–  Board’s Report was not prepared timely due to the non-availability of financial data due to migration of accounting data into ERP from Tally operating software and malfunctioning of the new ERP accounting software.

ii. For the Financial Year ended on 31st March, 2020– Board’s Report was not ready due to a delay in obtaining accounting data due to the spread of novel coronavirus and medical issues of persons managing accounts.

M/s KCL further submitted the details of delays (in the number of days) u/s 129 of Companies Act, 2013 as under:

F.Y. ended

Date of Board Meeting

Date of AGM

Due date of AGM

Delays (in days)

31st
March, 2019

7th
November, 2019

18th
November, 2019

30th
September, 2019

48

31st
March, 2020

28th
May, 2021

29th
May, 2021

31st
December, 2020

149

Further, according to Mr. MRG, practising Company Secretary, the following was the probable penalty to be levied on the Company and its Managing Director for the following Financial Years:

F.Y. ended

Penalty as per
Companies Act, 2013

Total (in Rs.)

On Company
(M/s KCL)

On Managing Director

31st March, 2019

Rs.
3,00,000

Rs.
50,000

Rs.
3,50,000

31st March, 2020

Rs.
3,00,000

Rs.
50,000

Rs.
3,50,000


ORDER/HELD
The Office of RoC, West Bengal, after considering the facts and circumstances of the case and taking into account the factors imposed a penalty of Rs. 6,00,000 on M/s KCL and Rs. 1,00,000 each on the Managing Director/Officer in default u/s 134(8) for failure to comply with sections 134(1) and 134(3) for F.Y. ended on 31st March, 2019 and 31st March, 2020.

It was further directed to pay the amount of penalty individually for M/s KCL and its Managing Director (out of own pocket) by way of e-payment mode within 90 days of receipt of the order and that the generated challan of payment of  penalty be forwarded to the Office of RoC, West Bengal.