Facts:
The appellant required manpower for managing various points in the mechanised process of loading of cement bags into trucks and railway wagon. The loading job was fully automated and the manpower supplied related only to supplementing the mechanised process of loading of cement bags. The appellant had also shifted the packed cement bags from various places within the factory premises. These goods were not meant for transportation. The appellant also carried out the job of shifting of coal from power plant to cement plant, breaking of big lumps of coal, etc. These activities were carried within the factory premises and were not meant for transportation.
Held:
Since labour supplied by the appellant were only supplementing the job of loading, the services carried out by the appellant did not come under cargo handling services. The job of internal shifting of goods at both the places did not come under cargo handling services.
Year: 2012
(2012) 25 STR 292 (Tri.-Del.) — Commissioner of Central Excise, Indore v. Hindustan Motors Ltd.
Facts:
The respondent purchased the brake assemblies and took the credit on the basis of invoice issued to them. The goods were not sent to the factory of the respondent, but were dispatched to a job-worker processor at Pune from whom the respondent was getting finished goods produced which in turn were used for further manufacturing of excisable goods in the factory of the respondent. The Department was of the view that the respondent was not eligible for CENVAT credit as the brake assemblies had not been physically received in their factory. The Department filed an appeal against the above order on the ground that since brake assemblies purchased by the respondents from the supplier had not been received but dispatched to the processor for being fitted with rear/front axles being supplied to the respondent, hence the respondents were not eligible for CENVAT credit.
Held:
If the respondent had first transported the brake assemblies to their factory and then sent the same to the processor for being fitted with rear/ front axles being supplied by them, they would be entitled to CENVAT credit for brake assemblies on the basis of invoices issued by the supplier. To avoid unnecessary transportation, the brake assemblies were sent to the processor. Hence, the CENVAT credit cannot be denied as there was no intention to evade payment of duty by taking wrong CENVAT credit.
(2012) 25 STR 304 (Tri.-Del.) — Krishna Export v. Commissioner of Central Excise, New Delhi.
Facts:
The Commissioner of Central Excise rejected the appeal on the ground that the appeal memo filed by the appellant was in the format meant for excise appeal, whereas the duty of customs stood confirmed by the lower authorities.
Held:
It was held that the mistake pointed out by the Commissioner being of technical nature was a rectifiable mistake and therefore appeal was not to be dismissed. The matter was remanded for fresh decision on merits.
What happens when one spends beyond one’s means?
A country spending way beyond its means will surely have a far greater impact than a school kid overshooting his pocket money. As the scale of this lavishness increases, the following two distinct trends are observed:
(1) The system of financing the gap becomes more and more complex
(2) The person spending gets more and more distant from the one paying for it.
Let us now see a few examples to understand fully how this evil system works.
A child and his pocket money
A school-going child has Rs.1,000 as pocket money savings and wishes to buy a video game DVD worth Rs.2,000. In a normal scenario, the child will comfortably make a gullible puppy face in front of the elders (technically may be called ‘financers’) and get the money. The advantage of being a child is that he rarely has to return it back. The amount involved is relatively negligible and the ones affected are close family members, pretty harmless.
Credit card — The prodigal’s best friend
Generally, anyone who wants to spend, what he is yet to earn uses a credit card. No doubt, when used wisely, a credit card is a wonderful source of free credit, but sadly, not all are wise. According to RBI, 1 in every 10 credit card holders defaults on payment. As of March 2011, there were 1.8 crore credit cards with average spending of Rs.41,862. Thus, we can estimate the defaults, at 10% of spending, to be Rs.7,536 crore.
Now, who pays for these? For the defaults made good by the customers, he pays a whopping 36% interest. But if he is unable to pay, the bank has to write them off. The real pinch is felt by the private shareholders of these banks and the government in case of nationalised banks. Not to forget, the management where the remuneration is linked to the profits, also feels the heat.
I owe you money? . . . Oh! Sorry, it just went down the drain . . .
Jean Paul Getty said, “If you owe the bank $100, that’s your problem. If you owe the bank $100 million, that’s the bank’s problem.”
No statement explains the paradox better! When huge corporations do business with others’ money, it’s not them but the lenders who have to worry about the state of business. One of the most recent examples is of a ‘reputed’ airline company. According to a leading broker’s estimate, the debt exposures of that particular airline company maybe a whopping Rs.10,000 crore. Using the corporate veil, the management will safely escape from the liability they have created. So, the ones ultimately shelling out Rs.10,000 crore may include banks, shareholders and creditors. Imagine thousands of crores going down the drain, in times of monstrous rise in cost of living and record high interest rates!
Banks going bust!
It’s not always that the banks that are on the losing side. Some clever devils in dark suits manage to pass on their mistakes to unsuspecting investors. Since banks are traditionally considered conservative, and people like you and me, easily fall for such dud schemes. And soon the bubble bursts, in turn, making everyone burst into tears. Take the example of the most monumental fall of recent times, the Lehman Brothers. With a debt equity ratio of 35 to 1, it was a ticking time bomb. Its debt was close to US $613 billion at the time of default. The damage does not end there. Bail-outs and stimulus packages followed the 2008 crisis from which the world has still not fully recovered. The total impact of the whole global economic crisis has cost trillions of dollars, millions of jobs and countless hungry stomachs. Consider this; the family of a jobless daily labourer has to go hungry while the ones responsible for overshooting their means enjoy barbeque parties in lavish bungalows! The ones suffering include creditors, shareholders, governments, taxpayers, citizens and the list goes on.
What is bigger? Bankrupt countries!
Greed has no limit. What happens when governments spend beyond their means? Countries go bankrupt! Some casualties include Argentina, Zimbabwe and the latest one, Greece. Greece had pushed very hard to enter the European Union so that it could use the Euro to borrow cheaply. The interest rate it used to pay on its borrowings before joining EU was 10-11% which fell to 3-4% immediately after adopting Euro. So, it kept mounting debt. Before it could repay the old one, it took a new, bigger loan. The proceeds were not always used to repay the old loan, but to fund their spending spree. It should be noted that the pension entitlement in Greece is around 92% of last salary that too at a time when Greece has a very fast ageing population. Since the adoption of Euro, the average wage of public sector workers doubled. These, along with large-scale tax evasion are some of the reasons for the mess this country finds itself in. Portugal, Spain and Italy too are sitting ducks. The impact of this looming crisis shall be more than anyone can ever fathom. Ripples of this crisis shall affect billions of people and deeply hurt the global economy.
Conclusion
Credit is the reason any business or economy runs. However, if you cross your limits, the impact will be felt at places and by people beyond your imagination. The only way to prevent such damage is by knowing your limits. We should not confuse limits with restrictions, no one likes restrictions! However, by setting budgetary limits we can ensure no one suffers. For articles like us, it has to start by managing the whole month’s expenses within the stipend earned. Being a disciplined money manager is not the job of the faint hearted! The whole marketing world is conspiring to raid our wallets. It is for us to protect it and keep the spending within limits. Yes, tough task!!
Sanction for prosecution: SC order brings cheer to beleaguered CVC.
“Sanctioning of prosecution by competent authority within a timeframe of four months will be a big help in fighting corruption, and will expedite action against corrupt public officials,” CVC Pradeep Kumar told TOI.
The CVC’s response came in the wake of the Supreme Court saying that “delay in granting such sanction has spoilt many valid prosecution and is adversely viewed in public mind that in the name of considering a prayer for sanction, a protection is given to a corrupt public official as a quid pro quo for services rendered by the public official in the past or may be in the future and the sanctioning authority and the corrupt officials were or are partners in the same misdeeds”.
The CVC has been at the receiving end of delaying tactics adopted by various departments to stall prosecution of officials against whom corruption proceedings are pending. As of December 2011, prosecution sanction was pending in at least 24 cases for more than four months.
In November, there were 28 cases pending with 17 ministries for over four months. The highest, of 10 pending cases, was with the Finance Ministry — four of them before the Central Board of Direct Taxes and four of them before the Central Board of Excise and Customs.
Their birth right! (right or wrong?) judge for yourself!
Majority wins: Bombay High Court paves way for redevelopment.
The ruling is significant as it seals the fate of the dissenting few and holds that the resolution, if passed at a meeting held legally, will be binding on all members of a cooperative housing society.
Schooling not enough.
SC tells HCs not to stay corruption probes unnecessarily.
“Unduly long delay has the effect of bringing about blatant violation of the rule of law and adverse impact on the common man’s access to justice,” said a Bench comprising Justice A. K. Ganguly and Justice T. S. Thakur in its judgment.
The Bench said, “a person’s access to justice is a guaranteed fundamental right under the Constitution and particularly Article 21. Denial of this right undermines public confidence in the justice delivery system and incentivises people to look for shortcuts and other fora where they feel that justice will be done quicker. In the long run, this also weakens the justice delivery system and poses a threat to Rule of Law”.
Taking into account that such pendency were related to HC orders putting on hold the trial/ investigations into the criminal cases, the SC said, “the power to grant stay of investigation and trial is a very extraordinary power given to High Courts and the same power is to be exercised sparingly only to prevent an abuse of the process and to promote the ends of justice”.
The Bench passed a slew of directions to the HCs to reduce such pendency like disposing of such proceedings as early as possible, preferably within six months from the date its stay order, etc. The SC also asked the Law Commission to inquire into the issue and submit a report on it.
The Bench took into account that the pendency in criminal cases related to murder, rape, kidnapping and dacoity in different High Courts, varies from 1 to 4 years. Out of 201 cases, 34 such cases out were pending in Patna High Court and 33 out of 653 cases in Allahabad High Court were pending for eight or more years.
(2012) 25 STR 290 (Tri.-Chennai) — Rajalakshmi Paper Mills Ltd. v. Commissioner of Central Excise, Madurai.
Facts:
The appellant was denied input credit and capital goods credit on the grounds that the impugned goods which were consigned to unit-I of the appellant were utilised in unit-II of the appellant located in the same premises. The appellant themselves altered the excise code number on the relevant invoices and also wrote unit-II on the said invoices. The denial was on the grounds of tampering with the duty-paying documents and not on the grounds of non-receipt or non-utilisation of the impugned goods of the factory of the appellant. There was no allegation of non-receipt or nonutilisation of the impugned duty-paid goods.
Held:
The Tribunal observed that since the appellant themselves had made alterations instead of intimating the Department, the reduced penalty was justified. With regards to the CENVAT credit, the assessee was allowed to avail it.
CENVAT credit — Bills of entry showing address of some other unit but goods received at the factory — Credit cannot be denied even if it was not claimed immediately on receipt of goods and even if the address not mentioned on the bill of entry.
CENVAT credit — Bills of entry showing address of some other unit but goods received at the factory — Credit cannot be denied even if it was not claimed immediately on receipt of goods and even if the address not mentioned on the bill of entry.
The appellant received goods at the factory, however, the bills of entry showed the address of their head office. Moreover, the credit was claimed after a span of one year. The Department relying on the case of Marmagoa Steel Ltd. (2004) 178 ELT 480 (T) denied the credit on two grounds: the address of the factory was not mentioned in the bills of entry and the credit was supposed to be claimed immediately on receipt of goods.
Held:
The case on which the Department was relying had been reversed by the Bombay High Court and such reversal has been affirmed by the Supreme Court 229 ELT 481 (SC). The credit cannot be denied to the appellant merely on the ground that credit was not taken immediately. The Tribunal further observed that not taking credit immediately affected the assessee more than the Revenue.
Construction services — Construction completed before the introduction of Service tax on such services — However, completion certificate obtained by the appellant after the introduction of the levy — Held, it is a very small part of the contract and for that reason Service tax cannot be demanded.
Construction services — Construction completed before the introduction of Service tax on such services — However, completion certificate obtained by the appellant after the introduction of the levy — Held, it is a very small part of the contract and for that reason Service tax cannot be demanded.
The appellant was a construction service provider (a civil contractor). The appellant had undertaken a works contract of constructing 10 flats prior to levy of Service tax. However, the payment was realised post levy of Service tax on construction services. The Department levied Service tax on the amount received post the introduction of the levy by the appellant.
Held:
The construction was completed long before Service tax was imposed on construction services. Even if the procuring completion certificate was the responsibility of the appellant, it was a very small part of the contract. For this reason, Service tax could not be levied.
Penalty — Service tax registration not obtained and Service tax not paid — However, the details of commission paid available in the balance sheet — The details were submitted as soon as asked by the Department — Substantial portion of Service tax paid — Nonpayment not considered as wilful — Penalty set aside.
Penalty — Service tax registration not obtained and Service tax not paid — However, the details of commission paid available in the balance sheet — The details were submitted as soon as asked by the Department — Substantial portion of Service tax paid — Non-payment not considered as wilful — Penalty set aside.
The appellant a manufacturer of cotton yarn, for procuring export orders, paid commission to various agents located in different countries. No Service tax was paid on the same under reverse charge. The Department levied penalties along with tax and interest. The appellant pleaded that non-payment of taxes was due to bona fide belief that services rendered by foreign agents are not taxable within India. The Commissioner (Appeals) upheld the levy of penalty.
Held:
To levy penalty u/s.78, it is necessary to prove the mala fide intention of the assessee. In the present case, the appellant disclosed all the relevant information in the balance sheet. Moreover, all the requisite details were provided on being asked by the Department. Relying on Cosmic Dye Chemical 75 ELT 721 (SC), the Tribunal held that the appellant had disclosed all the information and therefore, penalty u/s.78 could not be imposed.
Cenvat credit — Service tax on group medical insurance policy — Mandatory requirement — Held, though a welfare measure, is in relation to business as defined in the definition of ‘input service’ — Eligible as credit.
Cenvat credit — Service tax on group medical insurance policy — Mandatory requirement — Held, though a welfare measure, is in relation to business as defined in the definition of ‘input service’ — Eligible as credit.
The respondent claimed credit of Service tax paid on group medical insurance. It was mandatory on the part of the respondent u/s.38 of the Employees State Insurance Act, 1948. The credit was denied on the ground that insurance service was not specified in the definition of ‘input service’.
Held:
Merely because the service is not specified in the definition, credit cannot be denied. Service tax on all those services which have been utilised by the assessee directly or indirectly in or in relation to the manufacture of the final products is eligible as CENVAT credit. Employee Mediclaim Insurance though a welfare measure, is a statutory obligation which the assessee needs to obey. CENVAT credit admissible.
VAT on Builders and Developers
The historical background of works contract is very interesting. In a landmark judgment in the case of Gannon Dunkerley & Co. (9 STC 353) the Supreme Court held that it is the transaction of ‘sale’ within the meaning of the Sale of Goods Act, which can be covered by Sales tax legislations. It was held that the transactions of sale, which are completed by delivery, are sale transactions as per the Sale of Goods Act and such transactions can only be taxable under sales tax laws. Where there is a composite contract, like supply of materials and application of labour, it becomes a works contract transaction and cannot be covered by Sales tax legislations. After the above judgment, for number of years, the transactions of works contracts remained outside the scope of Sales tax legislations. It is in the year 1983, the Constitution was amended (46th Amendment), whereby, for enabling levy of Sales tax, deemed sale category was inserted. This was done by insertion of clause (29A) in Article 366 of the Constitution of India. One of such deemed sales category is ‘works contract’ transaction.
After getting powers to levy Sales tax on works contract transactions, States including Maharashtra made legislations for levy of Sales tax on works contract transactions. In Maharashtra, there was a separate Maharashtra Works Contract Act, 1989. Under the above Act, an issue arose, as to whether tax can be attracted on builders & developers, who come up with their own projects and while the construction is in progress, enters into agreement for sale of premises. In the DDQs issued at that time, it was held that such agreements cannot be liable under the Works Contract Act. Reference can be made to the DDQ in case of Unity Developer & Paranjape Builders (DDQ 1188/C/40/ Adm-12, dated 10-3-1988). It was held that there is no employer-contractor relationship between buyer of premises and builder. G. G. Goyal Chartered Accountant C. B. Thakar Advocate VAT Similar position is also repeated in DDQ in the case of M/s. Rehab Housing Pvt. Ltd. & Larsen & Toubro Ltd. (JV) (WC-2003/ DDQ-11/Adm-12/B-276, dated 28-6-2004). In this DDQ, the issue was about constructing tenements for contractee, where price was composite for land and construction. It was held that this is a contract for immoveable property and not covered by the Works Contract Act.
Change in situation
From 1-4-2005, the Works Contract Act is merged into the MVAT Act, 2002 and works contract transactions are covered by the said MVAT Act, 2002. However, still the above situation prevailed and there was no attempt to levy tax on builders & developers. However, in 2005, the Supreme Court delivered judgment in case of K. Raheja Construction (141 STC 298) (SC). In this case, noting that there is separate value for land and separate value for construction, the Supreme Court held the developer as liable to works contract. After the judgment in the case of K. Raheja Construction (141 STC 298) (SC), the VAT authorities held a view that ‘Under Construction Contracts’ are liable to VAT as works contract. The definition of works contract was introduced in the MVAT Act, 2002 on 20-6-2006. Thereafter, the Commissioner of Sales Tax issued Circular 12T of 2007, dated 7-2-2007 explaining that builders & developers, coming up with their own project but entering into agreements for sale of premises, when the construction is under progress, will be works contract transactions and accordingly liability as works contract will be required to be discharged under the MVAT Act, 2002. It was further explained that if the agreement is after completion of construction, then such agreements will not be covered.
In other words, ‘under construction contracts/ agreements’ were stated to be taxable under the MVAT Act, 2002.
Matter before Bombay High Court After the above development, writ petitions were filed before the Bombay High Court challenging the above interpretation and proposed levy. The High Court has recently decided the said controversy by way of judgment in the case of the Maharashtra Chamber of Housing Industry & Ors. (51 VST 168). The short facts and gist of arguments before the High Court can be noted as under: On behalf of petitioners (a) The amendment in definition of ‘sale’ is unconstitutional, if it is contemplating to levy tax on immovable property. (b) It was shown that the provisions refer to conveyance of land or interest in land, which means immovable property. It was also argued that in works contract the property should pass while executing the contract and not after completion. In case of premises, property passes after construction and conveyance and hence it is a sale of immovable property and not execution of works contract. (c) The works contract contemplates two elements i.e., labour and materials. If third element like land is involved, there is no works contract under Sales tax laws. (d) It was argued that there is no transfer of property to individual buyer of premises, but it is transferred to society by conveyance. Under the above circumstances, no works contract for individual buyers. Provisions of the Maharashtra Ownership Flats (Regulations of the Promotion of Construction, Sale, Management and Transfer) Act, 1963 (MOFA) and Model Agreement thereunder, were also referred to. (e) Unlike in the case of K. Raheja (cited supra), in case of agreement under MOFA, there is no separate price for land/construction and hence transaction cannot amount to works contract. (f) Under the MVAT Rules, 2005, there is Rule 58(1A) to grant deduction towards cost of land.
However, deduction is restricted to 70% of contract value. It was argued to be unconstitutional, as, if land value is exceeding 70%, it will amount to levy of tax on land value, which is not permissible.
On behalf of Government
(a) There is no restriction that if land is involved, the State cannot isolate sale of goods from such contract.
(b) There can be various species of contract and ‘under construction agreement for premises’ is one such specie.
(c) The main argument of the Government was that as per the MOFA Act and Model agreement, buyer gets protection from various aspects like builder cannot change plan, no mortgage of land, etc. Therefore, citing stamp duty judgments, it was argued that construction, after entering into agreement, till completion, will amount to works contract.
(d) Rule 58(1A) is only for measurement of tax and hence not unconstitutional.
Judgment of High Court
The High Court, after considering the above arguments, held that under construction contract is works contract and VAT can be attracted on the same. The main thrust of judgment is that by making agreement under MOFA, buyer gets some interest in the said flat/premises. The Construction thereafter is therefore works contract. The reasoning of the High Court can be noted as under:
“29. In enacting the provisions of the MOFA, the State Legislature was constrained to in-tervene, in order to protect purchasers from the abuses and malpractices which had arisen in the course of the promotion of and in the construction, sale, management and transfer of flats on ownership basis. The State Legislature has imposed norms of disclosure upon promoters. The Act imposes statutory obligations. The manner in which payments are to be made is structured by the Legislature. As a result of the statutory provisions, an agreement which is governed by the MOFA is not an agreement simplicitor involving an ordinary contract under which a flat purchaser has agreed to take a flat from a developer, but is a contract which is impressed with statutory rights and obligations. The Act imposes restrictions upon a developer in carrying out alterations or additions once plans are disclosed, without the consent of the flat purchaser. Once an agreement for sale is executed, the promoter is restrained from creating a mortgage or charge upon the flat or in the land, without the consent of the purchaser. The Act contains a specific stipulation that if a mortgage or charge is created without consent of purchasers, it shall not affect the right and interest of such persons. There is hence a statutory recognition of the right and interest created in favour of the purchaser upon the execution of a MOFA agreement.
Having regard to this statutory scheme, it is not possible to accept the submission that a contract involving an agreement to sell a flat within the purview of the MOFA is an agreement for sale of immovable property simplicitor. The agreement is impressed with obligations which are cast upon the promoter by the Legislature and with the rights which the law confers upon flat purchasers.”
Holding the above view, the High Court held that ‘Under Construction Contract/Agreements’ will be covered under the MVAT Act, 2002.
Conclusion
Therefore, as on today the State can levy tax on under construction agreements. However, matter is subject to the Supreme Court. It can be noted here that similar controversy in relation to the Karnataka State is already before the larger Bench of the Supreme Court in the case of Larsen & Toubro Limited and Another v. State of Karnataka and Another, (17 VST 460) (SC). Therefore, the ultimate fate will depend upon the Supreme Court judgment.
CONCEPT OF MUTUALITY
Though
the concept of ‘mutuality’ has been a subject-matter of extensive
judicial considerations under the Income tax Act and Sales tax laws, it
has been tested judicially to a very limited extent under Service tax.
However,
it assumed significance in the context of Club or Association Service,
the category introduced w.e.f. June 16, 2005, more particularly in the
context of co-operative societies, trade associations and clubs.
The
following Explanation was inserted at the end of section 65(105) of the
Finance Act, 1994 (Act) w.e.f. May 01, 2006: “For the purpose of this
section, taxable service includes any taxable service provided or to be
provided by any unincorporated association or body of persons to a
member thereof, for cash, deferred payment or any other valuable
consideration.” Attention is particularly invited to the following
Explanation inserted to newly introduced section 65B(44) of the Act
which now defines ‘service’ effective from July 01, 2012: “
…………………….
Explanation 2 — For the purpose of
this Chapter, — (a) An unincorporated association or a body of persons,
as the case may be, and a member thereof shall be treated as distinct
persons. ……………”
General concept
It is
widely known that no person can make a profit out of himself. The old
adage that a penny saved is a penny earned may be a lesson in household
economics, but not for tax purposes, since money saved cannot be treated
as taxable income. It is this principle, which is extended to a group
of persons in respect of dealings among themselves. This was set out by
the House of Lords in Styles v. New York Life Insurance Co., (1889) 2 TC
460 (HL). It was clarified by the Privy Council in English and Scottish
Joint Co-operative Wholesale Society Ltd. v. Commissioner of
Agricultural Income-tax, (1948) 16 ITR 270 (PC), that mutuality
principle will have application only if there is identity of interest as
between contributors and beneficiaries. It was the lack of such a
substantial identity between the participants, with depositor
shareholders forming a class distinct from the borrowing beneficiaries,
that the principle of mutuality was not accepted for tax purposes for a
Nidhi Company (a mutual benefit society recognised u/s.620A of the
Companies Act, 1956) in CIT v. Kumbakonam Mutual Benefit Fund Ltd.,
(1964) 53 ITR 241 (SC).
Distinction between Members’ Club/Association and Proprietary Club/Association
(i)
The concept of mutuality and distinction between ‘Members’ Clubs’ and
‘Proprietary Clubs’ has been discussed in detail in a 6-Member Supreme
Court Ruling viz. Joint CTO v. Young Men’s Indian Association, (1970) 26
STC 241 (SC). (‘YMIA’) The relevant extract of discussion is set out
hereafter for reference.
If a members’ club, even though a
distinct legal entity, acts only as an agent for its members in the
matter of supply of various preparations and articles to them, no sale
would be involved as the element of transfer would be completely absent.
Members are joint owners of all the club properties. Proprietary clubs
stand on a different footing. The members are not owners of or
interested in the property of the club. To show the difference of
characteristics between Members’ Club and Proprietary Club, the Supreme
Court held that where every member is a shareholder and every
shareholder is a member, then the same would be called a Members’ Club.
In
a Members’ Club what is essential is that the holding of the property
by the agent or trustee must be holding for and on behalf of and not a
holding antagonistic to the members of the club. (ii) In CIT v. Bankipur
Club Ltd., (1997) 226 ITR 97 (SC), it was held by the Supreme Court
that there must be complete identity between contributors and
participators. If this requirement is fulfilled, it is immaterial, what
particular form the association takes. Trading between persons
associating together in this way does not give rise to profits which are
chargeable to tax. Facilities were offered only as a matter of
convenience for the use of the members. (iii) It was further held in
Chelmsford Club v. CIT, (2000) 243 ITR 89 (SC) that the surplus from the
activities of a club is excluded from the levy of the income-tax.
Applicability to a co-operative society
Where
a co-operative society deals solely with its members, right to
recognition for exemption on grounds of mutuality has been recognised
under income-tax in the following High Court rulings:
- CIT v. Apsara Co-operative Housing Society Ltd., (1993) 204 ITR 662 (Cal.);
- CIT v. Adarsh Co-operative Housing Society Ltd., (1995) 213 ITR 677 (Guj.) and;
- Director of Income-Tax v. All India Oriental Bank of Commerce and Welfare Society, (2003) 130 Taxman 575 (Del.).
Judicial considerations under Service tax
The
Service tax authorities had issued show-cause notices to various clubs
demanding Service tax under the service category ‘Mandap Keeper’ on the
ground that the clubs have allowed the members to hold parties for
social functions. Two of such clubs disputed the levy before the
Calcutta High Court viz.:
- Dalhousie Institute v. AC, (2005) 180 ELT 18 (Cal.).
- Saturday
Club Ltd. v. AC, (2005) 180 ELT 437 (Cal.). In Saturday Club’s case, a
members’ club permitted occupation of club space by any member or his
family members or his guest for a function by constructing a mandap.
On the principle of mutuality, there cannot be
(a) any sale to oneself,
(b) any service to oneself or
(c) any profit out of oneself.
Therefore,
the Calcutta High Court held that the same principle of mutuality would
apply to income-tax, Sales tax and Service tax in the following words:
“Income tax is applicable if there is an income. Sales tax is applicable
if there is a sale. Service tax is applicable if there is a service.
All three will be applicable in a case of transaction between two
parties.
Therefore, principally there should be existence of two
sides/entities for having transaction as against consideration. In a
members’ club there is no question of two sides. ‘members’ and ‘club’
both are the same entity. One may be called as principal while the other
may be called as agent, therefore, such transaction in between
themselves cannot be recorded as income, sale or service as per
applicability of the revenue tax of the country. Hence, I do not find it
is prudent to say that members’ club is liable to pay service tax in
allowing its members to use its space as ‘mandap’.”
While
quashing the proceedings, the High Court referred to the decisions in
the case of Chelmsford Club v. CIT, (2000) 243 ITR 89 (SC) & CIT v.
Bankipur Club Ltd., (1997) 226 ITR 97 (SC)
Principles laid down by the Calcutta High Court under Service tax
(a)
The principles laid down by the Calcutta High Court in Saturday Club
& Dalhousie Institute discussed above have been followed in a large
number of subsequently decided cases. Some of these are:
- Sports Club of Gujarat Ltd. v. UOI, (2010) 20 STR 17 (Guj.)
- Karnavati Club Ltd. v. UOI, (2010) 20 STR 169 (Guj.)
- CST v. Delhi Gymkhana Club Ltd., (2009) 18 STT 227 (CESTAT-New Delhi)
- Ahmedabad Management Association v. CST, (2009) 14 STR 171 (Tri.-Ahd.) and
- India International Centre v. CST, (2007) 7 STR 235 (Tri.-Delhi)
“using of facilities of club, cannot be said to be acting as its clients and hence, in respect of services provided to its members, a club would not be liable to pay Service tax in the category of club or association service.”
The Revenue’s appeal against the above ruling was dismissed by the Delhi High Court on technical grounds. It needs to be noted that, Explanation inserted at the end of section 65(105) of the Act w.e.f. May 01, 2006, has not been discussed in the aforesaid ruling.
Recent judgment in Ranchi Club Ltd. v. CCE & ST, (2012) 26 STR 401 (JHAR)
Background
A writ petition was preferred by Ranchi Club Limited for declaration that the Club was not covered under the Act and, therefore, was not liable to pay Service tax under ‘Mandap Keeper Service’ or under the ‘Club or Association Service’ categories and prayed for order of prohibition against Central Excise Division, Ranchi from enforcing any of the provisions of the Act.
Contention of the petitioner
Petitioner is a club which is a registered company under the Companies Act, 1956 and is giving service to its members but the club is formed on the principle of mutuality and, therefore, any transaction by the club with its member is not a transaction between two parties. When the club is dealing with its member, it is not a separate and distinct individual. It was submitted that in identical facts and circumstances, however, in the matter of imposition of sales tax, when the club was expressly included in the statutory definition of ‘dealer’ under the Madras General Sales Tax Act, 1959, so as to bring the club within the purview of taxing statute of the Madras Sales Tax, the Supreme Court, in YMIA case, considered the definition of the ‘dealer’ by which the club was declared as a ‘dealer’. The Court considered the definition of ‘sale’ as given in the Act of 1959 and Explanation-I appended to section 2(n), specifically declaring ‘sale’ or ‘supply or distribution of goods by a club’ to its members whether or not in the course of business to be a ‘deemed sale’ for the purpose of the said Act. In that situation, the Supreme Court considered the issue that when the club is rendering service or selling any commodity to its members for a consideration, whether that amounts to sale or not. The Supreme Court held that it is a mutuality which constitutes the club and, therefore, sale by a club to its members and its services rendered to the members, is not a sale by the club to its members. In sum and substance, the ratio is that for a transaction of sale, there must be two persons in view of this judgment as well as in view of the Full Bench judgment of this Court delivered in the petitioner’s own case i.e., Tax v. Ranchi Club Limited, (1992) 1 PLJR 252 (PAT) (FB) (‘Ranchi Club’). The Full Bench considering the identical issue in the matter of imposition of income-tax observed that no one can earn profit out of himself on the basis of principle of mutuality and held that income-tax cannot be imposed on the transaction of the club with its members.
With the help of these two judgments, it was submitted that the petitioner was a club and was rendering services to its members and the same principle of mutuality applied to the facts of the case in view of the reason that the language in the provisions of the Madras General Sales Tax Act, 1959 and the provisions under the Income-tax Act are pari materia with the provisions which are sought to be applied against the writ petitioner for levy of Service tax.
Contentions of the Department
The Department submitted that the sale has its own meaning and the service is entirely different transaction which cannot be equated with the sale in any manner. They relied upon the book ‘Principles of Statutory Interpretation’ by G. P. Singh, the then Chief Justice, M.P. High Court (3rd edition), wherein there is reference to a case wherein Bhagwati J observed that, for construction of fiscal statute and determination of liability of the subject to tax, one must refer to the strict letters of law. It was submitted that the statutory provisions are very clear which are sections 65(25a), 65(105)(zzze) as well as Explanation appended to section 65. It was also submitted that when the language of section is absolutely clear, then the meaning of the statute in fiscal matter should be given according to the language and words used in the section and cannot be interpreted on the basis of some ideology or some impressions or with the help of some other enactments. Each of the taxing statute may have its own definition and meaning and they are required to be given effect to, irrespective of the fact that meaning of the same word in different statute has been given differently. It was further submitted that the Supreme Court in the situation of imposition of Sales tax may have held that there cannot be sale by oneself to oneself and himself to himself, but the club can certainly render the service to its members and tax is on the service and the members are paying for the service to the club and, therefore, it is a service for consideration rendered by the club and is liable for tax.
Observations of the High Court
The question which was considered by the Supreme Court in YMIA case was that whether the supply of various preparations by each club to its members involves a transaction of sale within the meaning of the Sale of Goods Act, 1930. In para 15 of the judgement, the High Court quoted the Supreme Court as under:
“Thus in spite of the definition contained in section 2(n) read with Explanation 1 of the Act, if there is no transfer of property from one to another there is no sale which would be exigible to tax. If the club even though a distinct legal entity is only acting as an agent for its members in matter of supply of various preparations to them, no sale would be involved as the element of transfer would be completely absent. This position has been rightly accepted even in the previous decision of this Court”.
The Supreme Court held so after considering the English Law also and observed that the law in England has always been that members’ clubs to which category the clubs in the present case belong cannot be made subject to the provisions of the Licensing Acts concerning sale because the members are joint owners of all the club property including the excisable liquor. The supply of liquor to a member at a fixed price by the club cannot be regarded to be a sale. With regard to incorporated clubs a distinction has been drawn. Where such a club has all the characteristics of a members’ club consistent with its incorporation, that is to say, where every member is a shareholder and every shareholder is a member, no licence need to be taken if liquor is supplied only to the members. If some of the shareholders are not members or some of the members are not shareholders that would be the case of a Proprietary Club and would involve sale. Proprietary clubs stand on a different footing. The members are not owners of or interested in the property of the club. The Supreme Court observed that the above view was accepted by various High Courts in India. The Supreme Court, relying upon other judgments held that members’ club is only structurally a company and it did not carry on trade or business so as to attract the corporation profit tax. Therefore, in spite of specific inclusion of the club in the definition of the dealer in the Madras General Sales Tax Act, 1959, the Supreme Court categorically held that , there cannot be transaction of transfer of property.
The Full Bench of the Patna High Court in the case of the petitioner itself (Ranchi Club case) after finding that the club was a limited company incorporated under the Indian Companies Act, considered various clauses of the main objects of the club and relying upon various judgments, observed as under:
Therefore, by applying the principle of mutuality, members’ clubs always claim exemption in respect of surplus accruing to them out of the contributions received by the clubs from their members. But this principle cannot have any application in respect of surplus received from non-members. It is not difficult to conceive in case where one and the same concern may indulge in activities which are partly mutual and non-mutual. True, keeping in view the principle of mutuality, the surplus accruing to a members’ Club from the subscription charges received from its members cannot be said to be income within the meaning of the Act. But, if such receipts are from sources other than the members, then can it still be said that such receipts are not taxable in the hands of the club? The answer is obvious. No exemption can be claimed in respect of such receipts on the plea of mutuality. To illustrate, a members’ club may have income by way of interest, security, house property, capital gains and income from other sources. But such income cannot be said to be arising out of the surplus of the receipts from the members of the club. “
Conclusion by the High Court
“It is true that sale and service are two different and distinct transactions. The sale entails transfer of property, whereas in service, there is no transfer of property. However, the basic feature common in both transactions requires existence of the two parties; in the matter of sale, the seller and buyer, and in the matter of service, service provider and service receiver. Since the issue whether there are two persons or two legal entities in the activities of the Members’ Club has been already considered and decided by the Supreme Court as well as by the Full Bench of this Court in the cases referred above, therefore, this issue is no more res integra and issue is to be answered in favour of the writ petitioner and it can be held that in view of the mutuality and in view of the activities of the club, if club provides any service to its members, may be in any form including as mandap keeper, then it is not a service by one to another in the light of the decisions referred above as foundational facts of existence of two legal entities in such transaction is missing.” (para 18)
Taxability of mutual concerns (up to 30-6-2012)
a) According to one school of thought, the scheme of Service tax envisages a contractual relationship between the service provider and service receiver. Under a service contract, money flows from the service receiver and service is rendered by the service provider. The Courts have held that relationship between a mutual association and its members is governed by the principle of mutuality and is not one between two different entities. When a facility or amenity is provided to the members, it is so done by the members to themselves through the medium of their agent, the association. There cannot be an independent commercial transaction between a principal and his agent. Therefore, the very scheme of service tax is not applicable to the relationship between the members’ association and its members. Hence, the club or association service category (introduced w.e.f. June 16, 2005) would not apply to mutual concerns.
The ruling of the Jharkhand High Court in Ranchi Club discussed above strongly supports this view and more importantly it has considered the Explanation inserted at the end of section 65(105) of the Act w.e.f. May 01, 2006 to nullify the Calcutta High Court rulings of Saturday Club (supra) and Dalhousie Institute (supra).
b) According to another school of thought, the Calcutta High Court ruling in Saturday Club & Dalhousie Institute case discussed earlier was in the context of Mandap Keeper Services wherein the relevant taxable service definition u/s. 65(105) of the Act, the service recipient was specified as ‘Client’. However, under the club or association service category, the relevant taxable service definition u/s.65(105)(zzze) of the Act, the service recipient is specified as ‘members’.
The distinction made by the Government is reinforced, if one closely examines, the taxable services definitions of all the newly introduced taxable services through the Finance Act, 2005 which clearly demonstrates that in the context of club or association services ‘members’ have been specified as service recipients liable to tax. Hence the ratio of Saturday Club’s case would not apply in the context of mutual concerns like club, associations, etc. The aforesaid view is reinforced by the insertion of Explanation at the end of section 65 of the Act w.e.f. May 01, 2006.
c) Though principle of mutuality is relevant, it would appear that taxability of mutual concerns under Service tax remains a highly contentious and litigative issue.
Taxability of mutual concerns under the ‘negative list’ based taxation of services (w.e.f. July 01, 2012)
The terminology employed in Explanation 2 inserted in section 65B(44) of the Act which defines ‘Service’ is identical to that employed in Explanation to section 65(105) of the Act (up to June 30, 2012). Hence, it would appear that, principles of mutuality upheld by the Calcutta High Court in Saturday Club and Dalhousie Institute and the Jharkhand High Court in Ranchi Club, would continue to be relevant.
Further, under Sales tax a constitutional amendment was carried out, to enable States to levy sales tax on sale of goods by a club or association to its members. The same has not been carried out for Service tax.
However, it needs to be expressly noted that the is-sue is likely to be subject of extensive litigations.
(2012) 27 taxmann.com 111 (Coch Trib) E.K.K. & Co. v ACIT Assessment Year: 2009-10. Dated: 16-11-2012
Facts:
For the assessment year 2009-10, the assessee uploaded its return of income electronically without digital signature on 25-09-2009. The acknowledgment in form ITR-V was dispatched by the assessee by ordinary post on 5-10-2009 but was received by CPC on 29-11-2010. Though there was some controversy about date of dispatch of ITR-V, admittedly the same was received by CPC within the time prescribed, as was extended by CBDT from time to time.
The Assessing Officer (AO) served notice u/s. 143(2) on 26-08-2011 i.e. beyond a period of six months from the end of financial year in which return was furnished, if the date of uploading the return is to be regarded as date of furnishing the return of income. However, if the date of receipt of ITR-V by CPC is regarded as date of furnishing the return of income then the notice was served within time prescribed by section 143(2).
Held:
The Tribunal upon going through the scheme framed by CBDT noted that as per the scheme, in respect of returns filed electronically without digital signature the date of transmitting the return electronically shall be the date of furnishing of return if the form ITR-V is furnished in the prescribed manner and within the period specified. In this case the period specified was 31-12-2010 or 120 days whichever is later. Admittedly, Form ITR-V was received by CPC on 29-11-2010 which was within the prescribed time, in the prescribed manner and in the prescribed form. Hence, the date of filing of the return shall relate back to the date on which the return was electronically uploaded i.e. 25-09-2009. The assessment order passed by the AO was quashed on the ground that the notice served on the assessee u/s. 143(2) on 26-08-2011 was beyond the period of six months from the end of the financial year in which the return was furnished.
The appeal filed by the assessee was allowed.
Clarifications for Notification on tax-free bonds from Rural Electrification Board — Notification No. 13/2012, dated 6-3-2012.
Exemption to certain categories of persons from filing tax returns for A.Y. 2012-13 — Notification No. 9/2012, dated 17-2-2012.
Any salaried employee whose total income does not exceed Rs.5,00,000 and which consist of salary income and interest from savings bank account up to Rs.10,000, is exempted from filing his return of income for A.Y. 2012-13 provided:
He has given his PAN to his employer
He informs employer of his Bank interest income and tax has been appropriately deducted from such interest by the employer and paid. Has received his Form 16 wherein total income, total TDS deducted and paid are mentioned
He has no refund claim for the said year and all his tax liability is duly discharged by way of TDS
He receives his salary income from only one employer
He is not required to furnish his return of income under any other provisions of the Act.
Taxation of Royalties and FTS as Business Profits (Interplay of Sections 44BB, 44D and 44DA)
Income in the nature of Royalties and Fees for Technical Services (FTS) in the hands of nonresidents are generally taxed on gross basis as per Article 12 of the applicable Treaty or u/s.115A read with section 9(1)(vi) and (vii) of the Income-tax Act, 1961 (the ‘Act’). Essentially both kinds of income are subset of Business Income. Therefore, ideally they should be taxed on a net basis. However, even under tax treaties these incomes are taxed on gross basis in the State of Source, albeit at a concessional rate. Prior to the enactment of section 44DA on Statue, section 44D was in operation (Applicable to agreements entered into by non-residents up to 31st March 2003) which specifically disallowed deduction of any expenditure in computing Foreign Company’s Income by way of Royalties and FTS. Thus, it resulted in taxation of royalties/FTS on gross basis even in a case where there existed a Permanent Establishment in India. However, the silver lining was applicability of section 44BB which covered payments in connection with supplying of Plant and Machinery on hire which is used or to be used for prospecting for, extraction or production of mineral oils including natural gas. Section 44BB provides for presumptive basis of taxation whereby 10% of the gross amount is deemed to be taxable profits.
2.0 Royalty and FTS
— Sections 9(1)(vi) and (vii) of the Act In this Article, we shall discuss the provisions of Royalty and FTS in the context of sections 44BB, 44D and 44DA only. We shall not go into the other aspects or controversies in respect of Royalty and FTS.
2.1 Royalty
2.2 Fees for Technical services (FTS)
3.0 Section 44D of the Act
Section 44D of the Act dealt with computation of royalty or FTS received by a foreign company from Government or an Indian concern in pursuance of an agreement entered into before 1st April 2003. Up to 31st March 1976 it provided for a flat deduction of 20% from the gross amount of royalty or FTS. From 1st April 1976 to 31st March 2003 it did not provide for deduction of any expenditure. In other words royalty or FTS (not covered 44BB) earned by a foreign company during this period was taxed on gross basis @ 30/20% (plus applicable Surcharge and Education Cess). Thus, the incidence of taxation was quite high even though the foreign company would have a permanent establishment in India.
4.0 Section 44DA of the Act
Section 44DA was introduced vide the Finance Act, 2003 to replace section 44D of the Act. It also covers income by way of royalty and FTS. The distinguishing features of both the sections are as follows:
Abbreviations :
(i) NR = Non-resident * Plus applicable Surcharge and Education Cess
(ii) FTS = Fees For Technical Services
(iii) PE = Permanent Establishment as defined Clause (iiia) of section 92F
5.0 Interplay of sections
- section 115A tax section 9(1)(vi)/(vii) @10% on gross basis and No PE If No Royalty and ? If income is covered No PE by section 44BB — Presumptive Profit @10% of gross receipts. Effective rate of tax 4% [With an option to tax on net basis u/s.44BB(3)] If Royalty & FTS as per
- Section 44DA on net section 9(1)(vi)/(vii) basis @ 40% and PE (Rates are quoted without Surcharge and Education Cess) In Geofizyka Torun Sp. zo. o. (2010) 320 ITR 0268 — the AAR explained the relationship between section 44BB and 44DA as under: “If the business is of the specific nature envisaged under 44BB, the computation provision therein would prevail over the computation provision in section 44DA.”
Abbreviations : (i) NR = Non-resident
(ii) P&M = Plant & Machinery
(iii) FTS = Fees For Technical Services
(Rates are quoted without Surcharge and Education Cess)
6.0 Taxability under DTAA
By and large all tax treaties which contain Articles on Royalty and FTS provide for their taxation in the State of Source (SS) on gross basis, albeit, at reduced rates. However, wherever the recipient has a PE in the ‘SS’, and such incomes are effectively connected with that PE, then they are taxed as ‘Business Profits’ [DDIT v. Pipeline Engineering GMBH, (2009) 318 ITR (A.T.) 0210]. Article 7 of DTAAs provides that profits attributable to a PE in ‘SS’ are taxed therein. Article 7 further provides for computation of profits where by deduction of expenses are allowed in accordance with the provisions of and subject to limitations of the taxation laws of SS. In some treaties specific deductions are mentioned, whereas in most treaties they are left to domestic tax laws.
Business Profits, thus taxable in India would be subject to provisions of section 28 to 44C of the Act. However, section 44D contained non-obstante clause which provided that “notwithstanding anything to the contrary contained in section 28 to 44C……” income derived by a foreign company in the nature of royalty and FTS to be taxed on gross basis. This resulted in severe difficulties as despite treaty provisions, Royalty and FTS even though attributable to a PE used to be taxed on gross basis. In DDIT v. Pipeline Engineering GMBH, [(2009) 318 ITR (A.T.) 0210] the Mumbai Tribunal held that “the combined reading of the treaty and the act leads to only one conclusion that no deduction is to be allowed against the receipts by way of royalties or fees for technical services in case of non-resident company, even if the business profits in respect of such income are to be computed under Article 7 of the DTAA”.
In order to avoid this anomaly, section 44DA was introduced w.e.f. 1st April 2004, which provided for net basis of taxation where royalty and FTS are effectively connected to a PE and incurred wholly and exclusively for the business carried on by that PE.
7.0 Judicial precedence
Majority of the decisions are in respect of characterisation of income between royalty as defined u/s.9(1)(vi) and business income covered by section 44BB of the Act.
7.1 Choice to opt for presumptive taxation
In DSD INDUSTRIEANLAGEN GmbH v. DDIT, (2009 TII 67 ITAT-Del.-Intl), the Tribunal held that the option to compute the income either on a presumptive basis or under normal provisions of the Act lies with the assessee and that he may exercise this option annually. “The Assessing Officer cannot force the system, which has been followed in the earlier year as per the option by the provision of law itself.”
7.2 Cases pertaining to section 44BB
7.2.1 Mobilisation expenses
In WesternGeco International Limited (2011) 338 ITR 0161 it was held that mobilisation and demobilisation revenues whether in respect of vessels moving into India or moving outside India are taxable in aggregate u/s.44BB on presumptive basis and that “there is no scope for splitting up the amount payable to the assessee.” The assessee however can opt for net basis of taxation u/s.44BB(3).
However, in case of R&B Falcon v. ACIT, (2007) 14 SOT 281 (Delhi) it was held that mobilisation revenue attributable to activities carried out in India are only liable to be included for the purposes of section 44BB.
7.2.2 In the undernoted cases the services of seismic data acquisition and processing were held to be covered under the provisions of section 44BB of the Act:
(i) WesternGeco International Limited. (2011) 338 ITR 0161
(ii) Geofizyka Torun SP. ZO.O. (2010) 320 ITR 0268
(iii) Seabird Exploration FZ LLC (2010) 320 ITR 0286
7.2.3 Time charter
In the undernoted cases the income derived by provision of time charter of seismic vessel were held to be covered by section 44BB of the Act:
(i) Wavefield Inesis ASA, (2010) 322 ITR 0645
(ii) Bourbon Offshore Asia Pte. Ltd., (2011) 337 ITR 0122
7.2.4 General applicability of section 44BB
In the undernoted cases section 44BB was held to be applicable:
(i) DIT v. Jindal Drilling and Industries Ltd., (2010) 320 ITR 0104 (Delhi)
(ii) ONGC as agent of Foramer France (1999) 70 ITD 468 (Delhi)
(iii) Paradigm Geophysical Pvt. Ltd. (2008 TIOL 362 ITAT-Del.)
(iv) Dresser Mineral International Inc., 50 TTJ 273 (Del.)
(v) Scan Drilling Co. (Delhi ITAT)
(vi) Lloyd Helicopters International (2001) 249 ITR 162 (AAR)
7.2.5 Some Specific inclusions while considering Gross Receipts u/s.44BB:
(i) Services tax : Technip Offshore Contracting bv (2009 TIOL 54 ITAT-Del.)
(ii) Taxes paid on behalf of NR contractor: Compagnie General (48 ITD 424)
8.0 Conclusion
The cases discussed here are not exhaustive. It is neither possible nor intended to cover all case laws on the subject in one article. The object here is to analyse the impact and interplay of sections 9(1)(vi) and (vii), 44BB, 44D and 44DA and 115A and to assess the taxability of Royalty and FTS both on gross as well as net basis.
As India is aggressively exploring its oil and gas resources, more and more foreign companies are setting up their operations in India in the field of prospecting, exploring and production of oil and natural gas and therefore study of these sections of the Act will gain importance in coming days.
DCIT v. Dodsal Pvt. Ltd (ITA No.2624/ Mum/2006) Asst Year: 2002-03 Dated 29-08-2012 Counsel for the Revenue: Mrs. Kusum Ingle Counsels for the Assessee: Mrs. Aarti Visanji and Mr. Arvind Dodal
Installation services that are ancillary/inextricably linked to supply of equipment are not taxable under the India-Canada DTAA.
Facts
The Taxpayer, an Indian Company (ICo), is engaged in the business of engineering and general contracting.
During the relevant year a Canadian company (FCo) supplied certain equipment to ICo and also rendered installation and commissioning services. The services were rendered under a separate contract.
The payments in respect of installation and commissioning charges to FCo were made without deducting any taxes on the basis that the same was not chargeable to tax in India as per the exclusion given in Explanation 2 to section 9(1)(vii) of IT Act and Article 12(5)(a)3 of the India-Canada DTAA (DTAA).
The issue before the Tribunal was whether the consideration paid by ICo to FCo on account of installation and commissioning charges is covered by the exclusion provided in Explanation 2 to section 9(1) (vii) and/or under article 12(5)(a) of the DTAA.
Held
The contract for services was entered into by ICo simultaneously on the same date as that of the supply contract and both the contracts, i.e., for supply of equipment as well as installation and commissioning of said equipment were placed with reference to the same letter of intent.
With regard to taxability u/s. 9(1)(vii) of the IT Act, the Tribunal held that the services were not covered within the exclusion provided for construction and like activities, as the same refers to consideration for actual construction activities undertaken in India and not the consideration for any services in connection with the construction project.
Under the DTAA, having regard to this fact and the terms and conditions of both the contracts, Tribunal observed that the services of installation and commissioning rendered by FCo were ancillary and subsidiary, as well as inextricably and essentially linked, to the supply/sale of the equipment and therefore, they were not chargeable to tax in India in the hands of FCo as fees for included services by virtue of article 12(5)(a) of the DTAA.
ICo, therefore, was not liable to deduct tax at source from the said payment made to FCo and the disallowance made by the tax authority was not sustainable.
Adidas Sourcing Limited v. ADIT (ITA No. 5300/ Del/2010) Asst Year: 2007-08 Dated: 18-09-2012 Counsels for the Assessee: Shri Rajan Vora & Shri Vijay Iyer Counsel for the Revenue: Dr. Sunil Gautam
Facts
The Taxpayer, a tax resident of Hong Kong (FCo), was providing buying agency services for its Indian Associated Enterprise (AE). Services were rendered by FCo from Hong Kong.
Commission for such offshore services was not offered to tax by FCo and it was claimed that the same is not service in the nature of FTS.
The issue before the Tribunal was whether buying agency services can be regarded to be in the nature of FTS under the IT Act.
Held
For a particular stream of income to be characterised as FTS, it is necessary that some sort of ‘managerial’, ‘technical’ or ‘consultancy’ services should have been rendered in. Various components of FTS should be interpreted based on their understanding in common parlance.
Buying agency services are not FTS but routine services offered for assisting in the process of procurement of goods. The buying agency service agreement shows that FCo was to receive commission for procuring the products of AE and for rendering incidental services for purchases.
Relying on Delhi High Court’s decision in J.K. (Bombay) Ltd. [118 ITR 312], Madras HC’s decision in Skycell Communications Ltd. [251 ITR 53] and Mumbai Tribunal’s decision in Linde AG [62 ITD 330], the Tribunal held that the services rendered by FCo were purely in the nature of procurement services and cannot be characterised as ‘managerial’, ‘technical’ or ‘consultancy’ services.
Accordingly, the consideration received by FCo was classified as ‘commission’ and not FTS.
ADIT v. Mediterranean Shipping Co.,S.A. [2012] 27 taxmann.com 77 (Mumbai Trib) Asst Year: 2003-04 Dated: 06-11-2012
Where right or property in respect of which the shipping income earned by the Taxpayer, is not effectively connected with the Taxpayer’s PE in India, such income will be taxable only in country of residence. The term “effectively connected” will apply only if the “economic ownership” of the ships is with the Taxpayer’s PE in India.
Facts
The taxpayer, a company incorporated in Switzerland, was engaged in the business of operations of ships in international waters through chartered ships. In respect of its activities in India, the Taxpayer had an Indian company (I Co) as its agent which triggered agency PE for the taxpayer. In its return of income for the tax year 2002-03, the Taxpayer declared NIL taxable income on the grounds that under the India-Swiss Double Taxation Avoidance Agreement (DTAA): (i) no article specifically covered the taxation of international shipping profits; (ii) Article 7 specifically excluded taxation of such profits; and (iii) Other Income article gave taxation rights only to Switzerland in absence of effective connection of ship with PE.
The Tax Authority contended that the combined effect of the exclusion of international shipping profits in Article 7 makes it clear that such profits are to be taxed by each country, as per their domestic laws. In any case, the Taxpayer has a dependent agent PE in India and that profits of the Taxpayer are effectively connected with the PE.
At the First Appellate Authority level, income was held to be not taxable in India. Aggrieved, the Tax Authority filed an appeal before the ITAT.
Held
On meaning of the expression “dealt with” under the Swiss DTAA: Coverage by Other Income article.
The purpose of a DTAA is to allocate taxation rights as held, inter alia, by the Supreme Court in the case of Azadi Bachao Andolan [263 ITR 706]. The expression “dealt with” used in Article 22 has to be read in the context of purpose of the DTAA, which is allocation of taxation rights. From this angle, an item of income can be regarded as “dealt with” by an article of DTAA only when such article provides for and, positively, vests the power to tax such income in one or both the countries. Such vesting of jurisdiction should be positively and explicitly stated and it cannot be inferred by implication.
Mere exclusion of international shipping profits from Article 7 cannot be regarded as vesting India with a right to tax international shipping profits and such profits cannot be regarded as “dealt with” as envisaged in Article 22.
Having regard to exchange of letters signed and agreed to between the competent authorities of India and Switzerland, it was clear that shipping profits were intended to be covered by other income Article.
On existence of PE
On facts, I Co was a legally and economically dependent agent, managing and controlling some of the Taxpayer/principal’s operations in India. Furthermore, the scope and authority of I Co is to work exclusively for and on behalf of the Taxpayer and not to accept any other representation without the written consent of the Taxpayer. Thus, the Taxpayer has an agency PE in India.
On whether the profits are “effectively connected” to the PE
The expression “effectively connected” is not defined in the Swiss DTAA or the IT Act, and therefore, it has to be understood using the general principles, keeping in mind the common uses associated with the phrase.
Economic ownership can be taken as basis to apply the concept of “effectively connected with”. 1
A right or property in respect of which income paid will be effectively connected with a PE if the economic ownership of that right or property is allocated to that PE. The economic ownership of a right or property, in this context, means the equivalent of ownership for income tax purposes by a separate enterprise with the attendant benefits and burdens.2
Since the economic ownership of the ships cannot be said to be allocated to the agency PE, it cannot be said that the ships were effectively connected with the PE in India. Accordingly, such income will not be taxable in India, but will be taxable in the country of residence of the Taxpayer, viz., Switzerland.
eBay International AG v. ADIT [2012] 25 taxmann.com 500 (Mumbai Trib) Asst Year: 2006-07 Dated: 21-09-2012 Counsel for the Assessee: Shri M. P. Lohia Counsel for the Revenue: Shri Narender Kumar
Facts
The Taxpayer, a Swiss Company (FCo), operated India-specific websites which provided an online platform for facilitating purchase and sale of goods and services to users based in India.
FCo earned revenues from the sellers of goods, who were required to pay a user fee on every successful sale of their products on the website.
Further, FCo had engaged its Indian affiliates (ICos) for availing certain support services in connection with the website for which it had entered into a Marketing Support Agreement (MSA).
The Tax Authority considered FCo’s income to be in the nature of Fees for Technical Services (FTS) which was taxable under the IT Act. Additionally, the Tax Authority took the view that FCo had a dependent agent permanent establishment (DAPE) in India on account of arrangements with ICos.
The issues before the Tribunal were:
(i) Whether the user fee from the sellers in India was in the nature of FTS under IT Act?
(ii) Whether ICos constituted a Permanent Establishment (PE) for FCo under India- Switzerland DTAA?
Held
Characterisation as FTS under the IT Act FCo’s websites are analogous to a “market place” where the buyers and sellers assemble to transact. FCo only provides a platform for doing business and cannot be regarded as rendering managerial services to the buyer or the seller.
Services are said to be technical when special skill or knowledge relating to a technical field is required for the provision of such service. Where technology is used in developing or bringing out any standard facility and the provider of such ‘standard facility’ receives some consideration in lieu of allowing its use, the users cannot be said to have availed any technical service from the provider by the mere act of using such standard facility.
There is no point at which FCo renders any consultancy service, either to the buyer or to the seller, as regards the transaction. It is also not possible for the buyers to consult FCo as regards the product to be purchased by them.
Thus, apart from making the websites available in India on which various products of the sellers are displayed, FCo has no role to affect the sales. Consequently, the consideration does not fall within the purview of FTS under the IT Act.
Whether ICos constitute a PE
ICos are dependent agents of FCo as ICos are legally and economically dependent on FCo. However, the following features suggest that ICos do not constitute a DAPE of FCo and hence the income is not taxable in India:
Websites are not directly or indirectly controlled by ICos and they have no role in directly introducing users to FCo.
The agreements between the sellers and FCo and the finalisation of transactions between the sellers and the buyers (without any interference or involvement of ICos) are done through the websites situated and controlled from abroad.
Further, the various conditions (i.e., concluding contracts, maintenance of stock and delivery of goods, manufacture or processing of goods) required to constitute a DAPE are also not satisfied by ICos.
Also, ICos do not constitute a PE under the “place of management” clause because ICos perform only market support services for FCo; they have no role to play in the online business between the sellers and FCo or between the buyers and the sellers.
Release of Publication on Digest of Full Bench Decisions of Central Information Commission
Also present at the occasion were Pradip Thanawala and Pradeep Shah, Trustees, BCAS Foundation and Julio Ribeiro, Chairman, PCGT along with other well-wishers of BCAS Foundation and PCGT.
The publication will help the RTI applicants/activists to better equip themselves and will benefit the society at large. The book is available for sale at BCAS office. L to R: Ambrose Jude D’Cruz, Pradip Thanawala (President), Ratnakar Gaikwad (State Chief Information Commissioner), Julio Ribeiro, Pradeep Shah and Anil Asher.
In March 2010 two NGOs viz. Public Concern for Governance Trust and BCAS Foundation published a book under the title ‘Right To Information – A Route To Good Governance’. All 2,000 copies printed are exhausted. I have a desire to revise the same and publish a revised and an enlarged edition of it, especially because the book is being appreciated by many who went through the same. However, due to my ill health since last ten months, I have not been able to progress on it. Hopefully, I shall soon do it. Many citizens are filing applications under the RTI Act. As PIOs and FAAs are still reluctant to part with the information, many Second Appeals are being filed before the CIC and SCIC. Many aspects of the law are not settled. Important law points are referred to a full bench for decision. Thus these decisions have a persuasive value. Hence in the meantime, above two NGOs decided to publish this “Digest of Full Bench Decisions of CIC”.
Idea to publish this Digest was given to me by RTI activist and The Central Information Commissioner, Mr. Shailesh Gandhi. We then requested Mr. Ambrose Jude D’Cruz, Government Law College student to prepare this digest. He has taken lot of pain and had lot of interaction with Mr. Anil K. Asher and me. Finally he handed over the text for publication early this month. Mr. Anil K. Asher, advocate and RTI activist who, with his sister, Mrs. Hema Sampat and Narayan Varma runs RTI Clinic at BCAS on the 2nd, 3rd and 4th Saturday every month since 2004, has thoroughly gone through the text, given good comments and revised text, drafted Head notes and notes wherever necessary.
I have glanced through the text more than twice and final copy and prepared the contents. Full Bench decisions have been digested in a simple manner for easy understanding. An attempt has been made to compile these decisions for better appreciation of the provisions of the RTI Act. Where any party has filed writ petition in High Court / Supreme Court suitable note at the end of the case digested has been added. Any reader who may like to peruse the relevant full decision may do so on website www.cic.gov.in as per case reference given at the end of each case.
51 Decisions of full bench of CIC delivered from 2007 to 2011 have been digested in this publication. There is not a single F.B. decision on CIC website in 2012 till this date. We have also digested one full bench decision of Maharashtra State Information Commission, [Case No.52] wherein a very important law point was raised before the Maharashtra State Information Commission.
On CIC website there are 60 decisions listed. 9 of them are not digested here for the reasons printed elsewhere in this publication. Thus, digested cases number 52.
Playing cards have 52 cards (excluding Jokers). Our number of Digest of CIC decisions is also 52. But these are not playing cards, these are “paying” cards (decisions). On behalf of two NGOs and myself, we record our appreciation to Mr. Ambrose D’Cruz and Mr. Anil K. Asher for the pains taken by them to prepare this Digest of CIC’s Full Bench decisions. As noted by Mr. Shailesh Gandhi, the decisions of Full Bench of CIC shall have lot of persuasive value to the RTI applicants for submissions before PIO, FAA and the Commissioner. Each decision appears on fresh page.
Blanks at the end of many decisions may be used to update by the readers for making Notes. In case if any decision is confirmed or reversed by the courts subsequently, same may be noted.
We are confident that this publication will be useful not only to the RTI activists, Public Information Officers and First Appellate Authorities and various Public authorities, but also to Information Commissions in proper understanding of the various provisions of the Right to Information Act and quick disposal of the cases. Suggestions and opinions will be highly appreciated and duly acknowledged. We shall feel amply rewarded if the publication containing the digest of full bench decisions of the CIC succeeds in changing the mindset of Indian bureaucracy and help RTI activists in guiding the citizens in procuring the information. I am happy to note that both NGOs publishing this book have agreed to fix price to cover the cost incurred by them. I hope this book enhances the achievement of RTI objectives. R2i jai ho! Narayan Varma
Message of Shailesh Gandhi, Central Information Commissioner
PCGT and BCAS are two of the leading organizations which have consistently supported Right to Information. I congratulate them on coming out with a very useful publication for all RTI users. They are publishing the digest of full bench decisions of the Central Information Commission, which could prove a very useful reference for users and Information Commissioners. Decisions given by Information Commissions have great persuasive value. RTI users could use these to persuade PIOs, First Appellate Authorities and Commissions to part with information. Full bench decisions of the Commission are generally accepted when they define certain principles, and over the next few years we will have built enough precedence in favour of transparency. I am aware Shri Narayan Varma has put in a lot of his commitment and time to getting this project together. He is one of the stalwarts of the RTI movement. I wish this project all success and am sure we will see many more useful contributions from PCGT and BCAS to further RTI. Love Shailesh All my emails are in Public domain. Mera Bharat Mahaan…Nahi Hai, Per Yeh Dosh Mera Hai.
Message of Ratnakar Gaikwad, State Chief Information Commissioner
I am extremely happy to know that PCGT and BCAS Foundation are to release publication “Digest of FULL BENCH DECISIONS OF Central Information Commission” on 26th June, 2012. Undoubtedly, PCGT and BCAS Foundation have been doing pioneering work in the spread of RTI. Since, there are still many grey areas in RTI, it is in fitness of things that a publication containing Digest of FULL BENCH DECISIONS OF Central Information Commission is being released. This publication I am sure it will go a long way in throwing light and bringing clarity on many issues for various stake holders in the field of RTI. I would like to place record my high appreciation for the tremendous contribution being made by Shri Narayan Varma, and it is mainly due to his initiative that this project has materialized. I wish this unique initiative all the success and look forward to many such initiatives and contributions from PCGT and BCAS in the field to RTI. n
Special Marriage Act
The Special Marriage Act, 1954, as the name suggests is an Act to provide for a special mode of marriage. Any person in India can marry under this Act, irrespective of their religion or faith. They can also get married according to any religious ceremonies or customs which they prefer, but if they wish to be governered by the Act then they need to get their marriage registered under this Act. However, in addition to providing for a special form of marriage, this Act also changes certain conventional succession patterns. It provides a very important deviation from the generally understood testamentary and nontestamentary succession for people married under this Act. That is what makes this Act important.
Earlier, the Act also had provisions for registering the marriages of Indian citizens residing abroad. However, by virtue of the enactment of the Foreign Marriage Act, 1969, those provisions have been deleted from the Special Marriage Act.
Applicability of the Act
This Act applies to:
(a) Any person, irrespective of religion.
(b) Hindus, Buddhists, Jains, Sikhs, who get their marriage registered under the Act.
(c) Muslims, Christians, Parsis or Jews who get their marriage registered under the Act.
(d) Inter-caste marriages registered under the Act. For instance, a Hindu marrying a Muslim or a Parsi marrying a Jain. Conditions for Special Marriage A marriage can be registered under this Act irrespective of anything contrary contained in any other law relating to marriages.
The following conditions must be fulfilled:
(a) Neither party must have a living spouse. Thus, bigamy is not permissible.
(b) Each of the parties:(i) must be capable of giving a valid consent to the marriage and must be of sound mind. (ii) though capable of giving such valid consent, must not suffer from mental disorder which would render the person unfit for marriage and the protection of children. (iii) must not be subject to recurrent attacks of insanity.
(c) The male must be of at least 21 years and the female must be of at least 18 years.
(d) One of the important conditions for registering a marriage is that the parties must not be related to each other within degrees of prohibited relationship. The Act lays down a list of relatives in relation to a person who are treated as within degrees of prohibited relationship. For instance, a man and his mother’s sister’s daughter (i.e., his cousin sister) cannot get married. However, if a custom governing at least one of the parties permits a marriage between the degrees of prohibited relationship, then the marriage may be permissible. For instance, in some religions, a person is permitted to marry his/her cousin.
All the above conditions are cumulative.
Process of Special Marriage
Whoever intends to get his marriage solemnised under the Act, must first give a Notice to the appropriate Marriage Officer. The Marriage Officer shall record the Notice received by him and enter a copy of the same in the Marriage Notice Book maintained by him.
If any person has any objection to the marriage, then he can object only on grounds that one of the conditions (specified above) are not fulfilled.
The marriage can be solemnised after 30 days from the Notice. The Marriage Officer shall issue a Certificate of Marriage which is conclusive evidence that the marriage has been solemnised under the Act and that all formalities specified therein have been complied with.
Any marriage which has been performed by a ceremony in any other form, e.g., marriage between two Hindus or two Muslims, etc., may also be registered under the Act. Thus, already married couples can get their marriages registered under this Act. Once they get their marriage so registered, it would be deemed to be a marriage solemnised under the Act and all children born after the date of marriage ceremony shall be deemed to always have been legitimate children. The names of such children are also required to be entered into the Marriage Register Book. Effect of marriage on HUF Section 19 of the Act prescribes that any member of a Hindu Undivided Family who gets married under this Act automatically severs his ties with the HUF. Thus, if a Hindu, Buddhist, Sikh or Jain gets married under the Act, then he ceases to be a member of his HUF. He need not go in for a partition since the marriage itself severs his relationship with his family.
He cannot even subsequently raise a plea for partitioning the joint family property since by getting married under the Act he automatically gets separated from the HUF.
However, this provision of section 19 should be read subject to section 21-A of the Act. This section provides that where the marriage solemnised under this Act takes place between a person of Hindu, Buddhist, Sikh or Jaina religion with a person who is also of Hindu, Buddhist, Sikh or Jain religion, then section 19 shall not apply. Thus, the severance from an HUF would take place only if a Hindu marries a non- Hindu.
Succession to property
Section 21 of the Special Marriage Act is by far the most important provision. It changes the normal succession pattern laid down by law in case of any person whose marriage is registered under the Act. It states that the Act overrides the provisions of the Indian Succession Act, 1925 with respect to its application to members of certain communities. The succession to property of any person whose marriage is solemnised under the Act and to the property of any child of such marriage shall be regulated by the Indian Succession Act, 1925. Thus, it removes the bar imposed by the Indian Succession Act, 1925, not only for the couple married under the Act, but also for the children born out of such wedlock.
Wills by Muslims
The biggest impact of section 21 is in the case of Muslims. The Muslim Law prevents a Muslim from bequeathing his whole property in a will and allows him to make a will only qua 1/3rd of his estate. He can bequeath more than 1/3rd of his property if his heirs give consent to the same. However, the impact of a Muslim getting married under this Act is that the Indian Succession Act would apply to all cases of testamentary succession (i.e., through will) or intestate succession (i.e., without will) of such a Muslim. Hence, by merely solemnising or registering an already conducted marriage under this Act, a Muslim couple can bequeath their entire property in accordance with their wishes and not be bound by their personal Muslim Law restriction of 1/3rd or property.
This view has been upheld by the Bombay High Court in the case of Sayeeda Shakur Khan v. Sajid Phaniband, 2006 (5) Bom. C.R. 7. In this case, a Muslim couple got married as per Mohammedan Law. They once again got their marriage solemnised under the Act after a few years. On the death of the husband an issue arose amongst his heirs as to whether the succession should be as per Muslim Law? A single Judge of the Bombay High Court held that because the marriage of the deceased was registered under the Act, all succession would be as per the Indian Succession Act, 1925 and not as per the Muslim Law. It also held that such a person is entitled to bequeath his entire property and not just 1/3rd as per Muslim Law. This view was also held by the Bombay High Court in the case Bilquis Zakiuddin Bandookwala v. Shehnaz Shabbir Bandukwala, RP No. 41 of 2010 (Bom). It held that intestate succession of a Muslim marrying under the Act would be governed by sections 31-40 of the Indian Succession Act, whereas his testate succession would be governed by sections 57-58 of the Indian Succession Act.
Does a will of a Muslim require a probate?
Another question before the High Court in Sayeeda Shakur Khan v. Sajid Phaniband, 2006 (5) Bom. C.R. 7 was whether the will of such a Muslim requires a probate? It held that once the Indian Succession Act applies to a Muslim, then all the provisions of the Act would apply with equal force. Section 57 of this Act provides that any will by Hindus, Buddhists, Sikhs, Jains in the places within the local jurisdiction of the High Courts of Bombay, Calcutta and Madras requires a probate. However, since the Special Marriage Act removes all restrictions for people married under the Act, the High Court held that the will of a Muslim requires a probate.
However, in the case of Bilquis Zakiuddin Bandookwala v. Shehnaz Shabbir Bandukwala, R.P. No. 41 of 2010 (Bom.), another Single Judge of the Bombay High Court has taken an exactly contrary view after considering the earlier judgment. The Court referred to section 58 of the Indian Succession Act which states that section 57 requiring a probate shall not apply to property of any Mohammedan. It also referred to section 213 of the Indian Succession Act which provides that an executor or a legatee cannot establish any right in a Court for which probate is not granted. However, section 213(2) exempts Muslims from this section. The Judge held that section 21 of the Special Marriage Act and sections 57, 58, 213(2) of the Indian Succession Act must be read together and reconciled. Since section 213(2) exempts Muslims from probates, there is no need for a Muslim to get a probate even if he is married under the Special Marriage Act.
Thus, there is a judicial controversy over whether or not a Muslim’s will needs a probate. However, since the second decision is later and has considered the earlier decision, reliance may be placed upon the same.
Role of a CA/Auditor
Normally, a CA in his capacity as an Auditor is not directly involved with wills and succession issues. Nevertheless, an Auditor can provide value added services to his clients if he is aware of the law in this respect. He can be of great assistance to his clients in cases of succession planning and estate planning.
Will — Evidence — Genuineness of will — Attesting witness — Requirement of law — Evidence Act, section 68.
In an application for grant of probate of the will, the issue arose as to genuineness of the will. The respondent Pooran Singh through his father and natural guardian Shishupal Singh had filed an application before the Trial Court seeking probate of the will executed by Joothar Singh in favour of Pooran Singh. It was submitted before the Court that so far as genuineness of the will was concerned, it created a suspicion, since most of the witnesses were illiterate, they did not know the contents of the will and that they being either relatives or acquaintance of the said Shishupal Singh, the possibility could not be denied that they had put their thumb marks below the said writing at the instance of Shishupal Singh. The Court observed that concerned witness Shri Tarachand in whose handwritings the said will was written had specifically stated in his evidence that he had written as per the direction of Joothar Singh and in presence of the witnesses Hari Singh, Raghunath Singh, Shishupal Singh and others.
He had also stated that after the writing was over, he had read over the same to Joothar Singh and thereafter Joothar Singh and the witnesses had put their thumb marks. Apart from the fact that other witnesses Hari Singh, Brij Singh, Raghunath Singh and Shishupal Singh have corroborated the said version, no such suggestion was put to them in their respective cross-examination that the thumb mark of Joothar Singh was obtained on plain paper and the writing thereon was made subsequently by Tarachand or Shishupal Singh and thumb marks of other witnesses were also put subsequently.
There is no requirement of law that the attesting witness should know the contents of the will. The only requirement is that the testator of the will should put his signature or thumb mark, as the case may be, in presence of two or more witnesses and that the said witnesses also should put their signatures in presence of the testator.
In the instant case, the said witness had stated that Joothar Singh had put his thumb mark below the said writing of the will and they had also put their respective thumb marks and signatures on the said will. Therefore, in absence of any substantial defence put up in the evidence by the defendants, the suspicion raised in the present appeal could not be said to be well founded.
Will — Settlement deed or Will — Joint Will or Joint Mutual Will — Succession Act, 1925 — Section 2(4).
The issue arose for consideration in the matter as to whether the document in question was a will or a settlement. The Court observed that if by execution of the document right is transferred in praesenti, it can only be treated as a settlement deed.
On the other hand, if no right is transferred in praesenti and by execution of deed, provision is made only for transfer of the right, after the death of either or both of the executants, it could only be treated as a will. Where two executants of the deed who were husband and wife and it was provided in the deed that it was jointly agreed by the executants that they shall jointly possess the properties and enjoy them jointly during their lifetime and that, on the death of any one of them the properties are still available, then the surviving executant shall possess the same absolutely with the right of alienation and that if on the death of the surviving executant, the properties are available, they shall go to their children, the deed was a will and not settlement deed. Though the deed provided that the properties shall ultimately go to the children, there was no transfer of right, in praesenti in their favour. So also though it was provided that on the death of one of the executants, properties shall go to the surviving executant, it is subject to the availability of the properties on the death of either of the executants. There was no transfer of the right of one of the executants, during his/her life time to the other.
Thus, there was no transfer of any right in praesenti on the other executants. The Court further observed that a joint will is a single testamentary instrument constituting or containing the will of two or more persons based on an agreement to make a conjoint will. Two or more persons can make a joint will, which, if properly executed by each so far as his property is concerned, is as much his will. That will comes into effect on his death. Joint wills are revocable at any time by either of the testators during the life of either or after the death of one of them by the survivor. If the joint will is executed in pursuance of an agreement or contract between the executants to dispose of their property to each other or to a third person in a particular mode or manner and reciprocal in their provisions, it is a joint and mutual will. In a mutual will there is an agreement that neither of the testator shall have power to revoke it.
The surviving testator receives benefits from the document under the mutual will and hence the survivor is not entitled to revoke the will after the death of the testator as the deceased had agreed in pursuance of the agreement and hope and trust that the will be adhered to by the survivor. As the will takes effect only on the death of the testator, both the testators during their lifetime together can revoke or modify the mutual will. But on the death of one of the testators, the surviving testator is not competent to revoke the mutual will.
Where recitals in the will showed that though it was executed jointly by the husband and wife, there was no mutual agreement between them to divest their individual right and to vest his or her right in the other and it only provides that during their lifetime the properties shall be jointly possessed and enjoyed together and that on the death of one of the executants, if the properties are available, they shall go to the surviving executant to be enjoyed absolutely with even the power of alienation, it would be a joint will and not joint and mutual will, because it was clear that there was no divesting of the rights of the other executant and vesting of that right on first executant. It was more so as the will did not provide that executants have no right of revocation.
Sting of Transfer Pricing
The Income-tax Act has given a liberal time frame of 31 months to the tax authorities to determine the Arm’s- Length Price (ALP) from the end of a financial year. By 31st October, 2011, the tax authorities determined the ALPs for the year ended 31st March, 2008. For the year ended 31st March, 2008, they have assessed transfer pricing additions of a staggering amount of Rs.44,500 crore. Such additions were only to the tune of around Rs.22,000 crore for the F.Y. 2006-07 and just around Rs.10,000 crore for the F.Y. 2005-06. The phenomenal increase in the adjustments over the last few years clearly indicates how eager and aggressive the Tax Department is to mop up revenues on account of transfer pricing additions. The Finance Ministry also seems to be very supportive to these efforts of the income-tax authorities as it is usually lagging on controlling budgetary deficits and wants to be innovative in its efforts of mopping up more tax without apparently affecting the common man. However, a balanced approach is the need of the hour.
Multinational companies having presence in various parts of the world with different tax laws and tax rates, try to take advantage of those differences to boost their post-tax profits for maximising shareholders’ value. Transfer pricing mechanism was initially introduced by the developed countries for enhancing their tax revenues from such multinationals. These countries realised that tax on some part of the revenues which could have been taxed in their jurisdiction was being siphoned off to low-tax jurisdictions by such companies. They made various laws for protecting the tax on these revenues. Encouraged by the revenue gains realised by these countries pioneering transfer pricing regulations, many other countries gradually introduced transfer pricing provisions in their tax laws. Over the years, their implementation is becoming aggressive and at times beyond justification.
The multinational companies, who had great moneymaking run till the end of the 20th century, have realised that the times are changing. Their global presence makes them deal with number of countries and their respective diverse laws. There is an increased possibility that two or more countries may tax the same profit by trying to justify that it was earned in their respective jurisdiction or such profit being even otherwise taxable under their tax laws. In such a situation, a multinational entity faces grave risk of being subject to duplicity of taxation.
Today, many multinationals are encouraged to come to India considering the huge market, skilled labour and technical and managerial talent that India offers. Multinationals already present in India are further encouraged by the growth of their businesses in India, in spite of the worldwide recession. Many of these companies are today suffering due to the aggressive stands on issues regarding transfer pricing by the Income Tax authorities. The Government needs to be mindful and cannot be oblivious to the fact that these multinationals can create employment and can also increase exports, which are the two critical needs of Indian economy. In the zeal of increasing the revenue, one should not slay the hen that lays golden eggs. India should not just copy the attitude of some developed countries in respect of transfer pricing as it may harm the economy and destroy some stable sources of revenue.
The brunt of transfer pricing provisions in India is equally faced by Indian companies expanding their business footprints outside India. The regime is also affecting the ambitions of Indian industry to set up Greenfield operations abroad or to acquire foreign businesses. They are not able to support the operations of their foreign subsidiaries through interest-free lending or giving bank guarantees for their borrowings, which is extremely important for the survival and sustainability of their operations. Genuine business efforts are adversely affected by the aggressive transfer pricing additions. The action of the tax authorities may be within the provisions of law but can be very harmful for a developing country like India. Indian policy makers as well as the policy implementers need to take the cognizance of the facts before it is too late. It also needs to urgently notify and implement the ‘safe harbour rules’.
Some of the major reasons of additions made on account of transfer pricing provisions in India are as follows:
- Recommendation of higher margin at net operating level.
- Disallowance of fees paid to associate enterprises for use of intangibles.
- Payment for inter-company services to associated enterprises disallowed.
- Indian company treated as creator of intangible assets owned by associated enterprises, thereby making addition on account of notional income.
- Notional fees being attributable to corporate guarantees given by Indian companies.
- Notional interest on advances given or outstanding of recoverable reimbursements by an Indian company to its associated enterprises.
- Notional fees being attributable to pledge of shares given as security to lender by Indian companies for the borrowings made by its associated enterprises.
The list is not exhaustive but only indicative and it is expanding year after year with the novel ideas of the income-tax authorities.
Newly set up businesses outside India have their own teething problems like a new-born child. They are subjected to brutal global competition and need to withstand it in order to survive. They need to be aptly supported by their parents till they take off and are able to sustain on their own. The support given by the parent in the form of interest-free/low-interest loan, corporate guarantees, preferential pricing, longer credit period, technology support and even manpower support is looked at by the transfer pricing authority as unfair practices and notional income from such practices are added as adjustments. While doing so, adequate cognizance of the gain that the parent makes by being full or part owner or being an economic beneficiary of the associated enterprise is not taken.
It seems that the time has come for the Government to review the provisions of transfer pricing in India and also to do introspection of the methodology of the implementation of the provisions for the health and faster growth of Indian businesses. The current attitude will not only dampen the interest of foreign multinationals to do business in India, but it will also damage the enthusiasm of Indians to fare overseas in search for opportunities. India is trying to project herself as a service hub to the global community. It is trumpeting the skill of its manpower and its cost advantage to the developed world in service-orientated businesses. If the aggression in implementation of transfer pricing does not subside to a reasonable level, India will fast gain a reputation of being an unfriendly and high-risk tax jurisdiction. The advantage which India gathered over the last couple of decades in the service sector may vanish overnight. In case of such an unfortunate situation, other developing nations who are waiting in the wings to compete with India in the service sector will have the last laugh and India may have one more story of a lost opportunity to tell.
Though various countries may have their points of view and justification for taxing an income which is also taxed in the other country, it can make the taxpayer suffer. To give respite to such a harassed taxpayer, Double Taxation Avoidance Agreements (DTAA) between many countries provide for ‘Mutual Agreement Procedures’. A taxpayer who gets torn between the taxation laws and transfer pricing regimes of two countries in respect of the same income, may make an application under the procedure. In such cases, the authorities of the two countries try to provide a solution which is acceptable to both the countries so that the taxpayer does not get into a double jeopardy of being made liable to pay double tax on the same income. However, if they fail to agree, the poor taxpayer may suffer tax in both the countries.
For the speedy resolution of transfer pricing disputes between the tax authorities and taxpayers in India, the Finance Act, 2009 introduced the provisions relating to Dispute Resolution Panel (DRP). Though the process was expected to speedily resolve the transfer pricing disputes, the response of the taxpayers, based on their recent experience of the panel is not very encouraging. Today, many taxpayers stung by the transfer pricing additions are not inclined to take advantage of these provisions as they are fairly certain of not getting relief, even in deserving cases. Such thinking amongst the taxpayers is harmful for speedy settlement of tax disputes, as the normal appeal process takes a long time. The delays increase the uncertainty of the taxpayers and also negatively affect the due tax collections by the authorities. To make DRP more assessee-friendly and meaningful, it is essential that the members of DRP are assigned the duty on a full-time basis and they should be as independent as possible.
The methodology used for implementation of transfer pricing regulations has far-reaching ramifications on an economy. The Indian Government as well as the authorities should not lose sight of the fact that business in India needs support and encouragement to achieve the targeted growth rate. They need to take a holistic view. At the same time businesses have to realise that attempt to artificially accrue income in low-tax jurisdiction is not beneficial in the long term.
Transfer — Transfer for benefit of unborn person — Transfer of Property Act, section 13.
The appellants were minors when they instituted the suit through their natural guardian, their paternal grandmother. The case of the plaintiffs was that the suit properties were the self-acquired properties of their great-grandfather, Muniswamappa. He had, by three separate registered gift deeds dated 5-6-1957, one executed in favour of his wife Akkayamma and two in favour of his grandson Revenna (R) defendant in the suit, gifted the suit properties. It was further stated that the properties were in the occupation of tenants. Muniswamappa and his wife Akkayamma expired in the year 1960 and 1961, respectively. It is the case of the plaintiffs that under the gift deeds, neither Akkayamma nor Revanna had any right to alienate the suit properties as they were conferred with a limited interest to enjoy the properties during their lifetime and thereafter the properties were to devolve on the plaintiffs. Notwithstanding this limitation, the defendant No. 1
— Revanna had proceeded to alienate the suit properties under sale deeds in favour of the defendant Nos. 2 to 5. It is the case of the plaintiffs that such alienations were void and did not bind the plaintiffs. It was their case that they had a vested right immediately on their birth. The first plaintiff was born prior to the said sale deeds. The plaintiffs, therefore, alleged that the defendant Nos. 2 to 5 in collusion with the tenants in occupation of the suit properties were seeking to occupy the properties and to illegally demolish the same and therefore the plaintiffs would be deprived of their legitimate right and had proceeded to file a civil suit.
The Court observed that where the suit property was bequeathed by virtue of a gift deed by the donor in favour of his grandson ‘R’ and his unborn brothers and thereafter property was to devolve upon the male children of the grandson ‘R’, it could be said that gift deed created a life interest in favour of ‘R’ and since he did not have a brother, the property absolutely devolved upon the male children of ‘R’ i.e., the plaintiffs. Further ‘R’ had only life interest in the suit property and he had no right to alienate the same.
As soon the plaintiffs were born, ‘R’ would lose the right to alienate the property as an interest is created in favour of the plaintiffs under the gift deeds which would be a prohibition for ‘R’ to alienate the property. The fact that ‘R’ had executed the sale deed in favour of the defendants would be immaterial. Plaintiffs were born prior to the sale transaction. If that be so, the property stood vested in the plaintiffs on their birth. Thus the property devolved on the plaintiffs immediately after the lifetime of ‘R’ since there were no other persons, who were capable of deriving such interest. The plea that ‘R’ and defendant purchasers had acted on the basis of the same would not absolve the defendants of their conduct as being illegal, since it was clearly against the law and there can be no estoppels against statute, nor can the defendants plead equity on that ground. The condition against the alienation imposed in the gift deed was not void. The plaintiffs consequently were held entitled to sale consideration received by ‘R’ under the sale deeds. The Court however declined the claim of the plaintiffs to recover the property.
Tax on land and building — Towers for wireless communication system cannot be construed as building — Karnataka Municipal Corporation Act, (14 of 1977) section 2(1A).
The appellants herein who are the licensees under the provisions of the Telegraph Act, 1885 for providing telecommunication services to the general public had approached the Court by writ petitions. The petitioners had called in question the demands raised against the petitioners by the respective local bodies. The demands had been raised in respect of the erection of the base trans-receiver station. The contention on behalf of the petitioners therein was that the municipal authorities/local bodies have no authority to make physical demand in respect of the telecommunication towers installed.
The Court observed that the ‘structure’ which is the subject-matter in the instant case is considered, it is a metal pole or tower to which the antenna is attached and has the backup system at its base. No doubt, it would have to be fastened to the roof of the building or embedded to the land with concrete base, nuts, bolts and the height of the pole may vary from case to case. Such structure though may suggest an element of permanency, it does not belong to the genus of the type previously mentioned in the section defining the building. If the phrase used was ‘other structures’, the term would have been wider to include other structures without reference to the first part of the section. But when it states ‘other such structure’, the structure in question will have to be of nature of the items mentioned in the first part of the section. Therefore, the tower/post which is not relatable to the items mentioned in the first part cannot be construed as a building to bring it within the sweep of section 94 of the Karnataka Municipalities Act 1964, section 103(b) (i) of the Karnataka Municipal Corporations Act, 1976 and section 64 of the Karnataka Panchayath Raj Act, 1993.
The above provisions indicate that apart from the other specific items for which power to tax has been provided, the power is also to impose tax on land and building alone. In fact, in the Karnataka Municipalities Act, 1964, the provision for tax on advertisements is exhaustive and includes ‘post’ and ‘structure’ and the term ‘structure’ has been explained further, but it only relates to advertisement. This in fact indicates that the telecommunication structure has not been indicated separately, nor does it get included in the definition of ‘building’. Therefore, the Court held that the telecommunication tower/post was not liable to tax under the existing power available to impose tax on ‘land’ and ‘buildings’.
Succession — Female Hindu dying intestate — Heirs related to an intestate by full blood shall be preferred to heir related to half blood — Hindu Succession Act, 1956, sections 15 and 18.
One Dwarka Prasad and plaintiffs Smt. Tijiabai and Smt. Dipiyabai were born out of the wedlock from the first wife of Ramratan. From the second wife of Ramratan the defendant No. 1 Heera Lal (step brother) was born, the defendant No. 2 Vinod Kumar is the son of defendant No. 1 Heera Lal.
The suit of the plaintiffs which was filed long back on 5-12-1985 is that the suit property was owned by Dwarka Prasad who had died in the year 1938 and after his death his widow Kalawati possessed the suit property and on coming into force of the Hindu Succession Act, 1956 Kalawati became the absolute owner. No child was born out of wedlock of Dwarka and Kalawati and after the death of Kalawati, the plaintiffs who are the sisters of Dwarka Prasad became Bhumiswami of the suit property because the property in dispute devolved on them. Further, it had been pleaded by the plaintiffs that the defendant Heeralal was making yearly payment of the agricultural produce, but the same had been stopped by him with effect from 1978. Thereafter the plaintiffs submitted necessary application to get their names mutated in the Revenue record to which the objections were submitted by the defendants 1 and 2. However, the Revenue Court directed to mutate the names of plaintiffs in the Revenue record which was assailed by defendants by filing appeal, but it was also dismissed. Hence a suit for possession had been filed by the plaintiffs.
The Court observed that the disputed property fell in the share of Dwarka Prasad in the family partition which took place during lifetime of their father Ramratan. Thus, Dwarka Prasad was the sole owner of the suit property till he died in the year 1938.
The plaintiffs are the real sisters of Dwarka Prasad and the defendant No. 1 Heera Lal is his step-brother. Since admittedly Kalawati (widow of Dwarka Prasad) having died leaving behind no issue, according to section 16 of the Act of 1956, her right would devolve under Rule 1 among the heirs specified in s.s (1) of section 15. Since Kalawati and Dwarka Prasad did not have any sons, daughters including children of any predeced son or daughter and Dwarka Prasad already having died during the lifetime of Kalawati, the right in the disputed property would devolve in the heirs according to Rule 2 of section 16. But, in the present case there is no heir in terms of Rule 2, hence the devolution of property would take place in accordance to Rule 3 of section 16. According to this rule, the property of the intestate female Hindu would devolve upon the heirs referred to in clauses (b), (d) and (e) of s.s (1) and s.s (2) of section 15 of the Act of 1956, which shall be in the same order and according to the same rules as would have applied if the property had been the father’s or the mother’s or the husband’s, as the case may be, and such person had died intestate in respect thereof immediately after the intestate’s death.
The property in dispute was of Dwarka Prasad and Kalawati inherited the disputed property from her husband and since there is no heir of Kalawati mentioned in the category 15(1)(a) of the Act of 1956, the property would devolve upon the heirs of her husband. If section 16(3) and section 15(1) (b) and class II of the Schedule to section 8 are kept in juxtaposition to each other and are read conjointly on the touchstone and anvil of the settled position of the law, the plaintiffs being the real sisters of Dwarka Prasad, the entire property in dispute of Kalawati would devolve on them.
It is true that the defendant No. 1 Heera Lal is the step-brother of Kalawati’s husband Dwarka Prasad but he is half blood brother of plaintiffs. Section 18 of the Act of 1956 provides that the heir of full blood have preferential right over half blood. According to this section the heirs related to an intestate by full blood shall be preferred to heir related by half blood, if the nature of relationship is the same in every other respect and therefore the plaintiffs being the real sisters of Dwarka Prasad have preferential right over the defendant No. 1 Heera Lal who is the heir related by half blood of Dwarka Prasad.
Cyber warfare — the next level
This write-up is about a new type of worm/malware, which was in the news recently. The worm called Flamer attracted a lot of hype and media attention given the speculation regarding its likely impact. This write-up is an attempt to cull out some key takeaways for benefit of the readers.
Background
Cyberspace is no longer a benign place to surf. Viruses are getting increasingly nasty and complex over the years. But while worms were traditionally being used by hackers and cybercriminals either to display their prowess or steal information and money, it appears now that even nation–states are backing such crimes to target countries – a trend popularly known as cyber espionage and cyber warfare.
Cyber warfare – the next level – Flamer worm
Circa 2010, news reports started appearing about a new type of a worm i.e., Stuxnet1. What was different about this worm was that it was the first of its kind i.e., the level of complexity, its apparent motive and the intended victims were not the ‘usual’ businesses or gullible individuals. On the contrary, experts believed that this was a ‘first’ – a worm written by a sovereign nation with the sole purpose of disrupting infrastructure facilities in another territory. It was also a ‘first’ because the worm was no longer attacking the zeros and ones (computer code), this time it was attacking the devices that were controlled by these zeros and ones – with a view to disrupt their functionality. There was the nagging feeling . . . . . . the type you get when somebody really bad/capable of doing nasty thing says . . . . I’ll be back (like Arnold Schwarzenegger in Terminator). It was (painfully) obvious that Stuxnet wasn’t the last word on the topic and things were likely to heat up . . . . very soon . . . . Coming back to the present day, that nagging feeling has become a reality – Stuxnet appeared in 2010, Duqu surfaced in 2011. Sometime around May 20122, security experts started issuing warnings about the ‘Flamer’ worm aka W32. Flamer or sKyWIper.
Threat assessment
A senior analyst at a leading security firm, sharing his view on the subject reveals that this is the most sophisticated threat he has ever seen. The same security firm had undertaken a detailed analysis of the ground-breaking Stuxnet virus, which ‘purportedly’ targeted Iran’s nuclear enrichment facilities two years ago, sending some of their centrifuges spinning out of control. The preliminary results shared by the senior analyst suggested that Flamer appeared to be even more complex than Stuxnet, and that it was an incredibly clever, comprehensive ‘spying programme’.
Grapevine reports suggest, “Flamer is a backdoor worm that goes looking for very specific information. It scrapes a mass of information from any infected machine and then sends it, without the user having any idea what is going on. The amount of information it can send is huge”.
Components identified3
A number of components of the threat have been retrieved and are currently being analysed. Several of the components have been written in such a way that they do not appear overtly malicious. Some of the components identified as malicious are:
• advnetcfg.ocx (0.6MB) (backdoor component)
• ccalc32.sys (RCA Encrypted Config file)
• mssecmgr.sys (6MB) (main compression component, LUA interpreter, SHH, SQL library)
• msglu32.ocx (1.6 MB) (Steals data from images and documents
• boot32drv.sys (~1kb) (Config file)
• nteps32.ocx (0.8MB) (performs screen capture)
This time it is different The one thing that everyone is sure about is that Stuxnet, Duqu and Flamer are definitely in another class than your typical spyware or fake antivirus threat. Experts universally agree that this complex software required a coding team and could not be achieved by a lone wolf coder. The complexity of the task has led many to presume only a nation-state would have the resources. Just as is being speculated in case of Stuxnet. It is interesting to note that unlike Duqu, Stuxnet and Flamer have the ability to infect systems via USB key, thus allowing them entry into facilities that are isolated from the Internet. They also use the same printer-driver vulnerability to spread within the local network. While all three worms are similar in the sense that all three are seriously modular (i.e., in a way that lets their command and control servers add or update functionality at any time), Flamer is definitely a step up.
- Here is why: According to Kaspersky researchers, a Stuxnet infestation takes just 500KB of space, as against this, Flamer is an out-and-out giant at 20MB. Part of Flamer’s size involves the use of many thirdparty code libraries, prefab modules that handle tasks like managing databases and interpreting script code. Neither Stuxnet nor Duqu rely on third-party modules.
- Given its size, Flamer is smart enough to mask its download impact. It is downloaded in multiple sessions. This is done to avoid giving itself away. In this respect, it is far more intelligent than its predecessors.
- Stuxnet and Duqu used stolen digital signatures to fool antivirus softwares. Unlike these, Flamer doesn’t use a digital signature. Instead, Flamer uses some unique techniques for self-protection, chief among them is the ability to recognize over 100 antivirus installations and modify its behaviour accordingly. It uses five different encryption methods, three different compression techniques, at least five different file formats (and some proprietary formats too) and special code injection techniques.
- Although Flamer is not concealed by a rootkit, it uses a series of tricks to stay hidden and stealthily export stolen data. One of its most amazing capabilities is the creation of a file on the USB stick simply named ‘.’ (dot). Even if the short name for this file is HUB001.DAT, the long name is set to ‘.’, which is interpreted by Windows as the current directory. This makes the OS unable to read the contents of the file or even display it. A closer look inside the file reveals that it is encrypted with a substitution algorithm.
- Flamer is definitely complex. In one of the earlier reports on this threat, a security expert noted that it has at least 20 modules, most of which are still being investigated. Another expert remarked that one of its smaller modules is over 70,000 lines of C decompiled code and contains over 170 encrypted strings. As for what it does, you might better ask what doesn’t it do. Just about any kind of espionage you can imagine is handled by one of Flamer’s modules.
- Flamer has very advanced functionality to steal information and to propagate. Using this toolkit, multiple exploits and propagation methods can be freely configured by the attackers. Information gathering from a large network of infected computers was never crafted as carefully as has been done in Flamer.
- Stuxnet relied on an unprecedented four zero-day attacks to penetrate systems and Duqu managed with just one zero-day attack. Flamer didn’t use any zero-day attacks.
- Stuxnet and Duqu infestations automatically self-destructed after a set time; Flamer can self-destruct, but only upon receiving the auto-destruct code from its masters.
It’s worth noting that Flamer doesn’t necessarily do any of the things described above, not even replicate to other systems, unless it’s told to do so by its Command and Control servers. This combined with the fact that it uses many standard commercial modules has helped it get past behaviour and reputation-based detection systems (i.e., our commonly used antivirus systems).
It’s a live program that communicates back to its master. It asks, where should I go? What should I do now?
Experts say that Flamer is most likely capable to use all of the computers’ functionalities for its goals. It covers all major possibilities to gather intelligence, including keyboard, screen, micro-phone, storage devices, network, wifi, Bluetooth, USB and system processes.
To state simply, once a system is infected, Flamer begins a complex set of operations, including sniffing the network traffic, taking screenshots, recording audio conversations, intercepting the keyboard, and so on so forth.
Sounds just like a cold war (fiction) scenario — where highly trained, deep cover ‘sleeper’ agents were inserted deep inside enemy territory to attack the enemy from within. Takes me back to some of my favourite movies……..Salt, Killers, The impossible spy…….
Readers who are interested in more technical information may also look up the following:
- http://www.symantec.com/security_respons/writeup.jsp?docid=2012-053007-0702-99&om_ rssid=sr-mixed30days
- http://blogs.mcafee.com/mcafee-labs/jumping-in-to-the-flames-of-skywiper
- http://www.mcafee.com/threat-intelligence/mal-ware/default.aspx?id=1195098
- h t t p : / / w w w . f – s e c u r e . c o m / w e b l o g / archives/00002371.html
- http://www.kaspersky.com/about/news/virus/2012/Kaspersky_Lab_and_ITU_Research_ Reveals_New_Advanced_Cyber_Threat
- http://www.mcafee.com/us/about/skywiper. aspx
- http://www.crysys.hu/skywiper/skywiper.pdf4
It would be a cliché to say, that this is not the last we have heard about this worm or that cyber warfare is now gaining momentum and therefore expect to read and hear more on this topic.
1. Read Cyber warfare – the next level – BCAJ October 2010
2. Unconfirmed reports suggest
Flamer was first reported as early as 2007
3. Source: www.symantec.com
Revenue Recognition
the ordinary course of activities of the entity i.e., from sale of goods
or services. Ind AS 18 on Revenue Recognition prescribes certain
general principles for revenue recognition from transactions involving
sale of goods, rendering of services and the use of entity’s assets that
generate fees such as royalties, dividend and interest. Revenue is
recognised when it is probable that economic benefits of the transaction
will flow to an entity and costs are identifiable and can be measured
reliably. In this article, we aim to understand certain key principles
of revenue recognition prescribed under Ind AS 18 in case of multiple
element arrangements, customer loyalty programmes, transfer of assets
from customers and sale on extended credit terms by way of examples.
Multiple deliverable contracts:
Companies at times offer a broad range
of products and services to its customers. These arrangements are
sometimes negotiated with the customer through a single contract which
contains multiple deliverables that are separately identifiable and have
stand-alone value to the customer, for example an automobile company
sells vehicles to a customer along with an optional extended warranty of
three years for a composite price. In accounting for revenue in case of
multiple deliverable arrangements the company should identify
‘separately identifiable components’ for which revenue is recognised at
varied points of time as per the contract. The consideration for these
separate elements should be allocated on a fair value basis using either
the ‘Fair value method’ or the ‘Relative fair value method’. Under the
fair value method, the revenue equivalent to the fair value of all
undelivered contract is deferred, and the difference between total
contract price and deferred revenue is recognised as revenue on
delivered components. Under the relative fair value method, the total
contract price is allocated to each contract deliverable in the ratio of
their fair values as a percentage to the aggregate fair values of all
individual contract deliverables.
Let us consider the concept of
multiple deliverable arrangements by way of an example — Example 1:
Multiple deliverables A company sells a vehicle along with a contract
for an optional three-year extended warranty bundled along with it for a
contract value of INR 570,000. The fair value of the extended warranty
services is INR 60,000. The fair value of the vehicle without the
extended warranty services is INR 540,000. The entire consideration is
required to be paid upfront.
Relative fair value method
Step 1: The above contract can be broken into the following identifiable components:
Step 2: Allocation of revenue based on their relative fair values — Contract value: INR 570,000
It
may be noted here that the aggregate fair value of delivered components
is INR 600,000 while the aggregate contract price is INR 570,000. As
such, there is a discount of 5% (i.e., 30,000/ 600,000) on the overall
contract as compared to its market price. Under the relative fair value
method, this discount of 5% is applied to each deliverable for revenue
recognition purposes. As such, the consideration allocated to vehicle is
INR 513,000 (i.e., 95% of INR 540,000) and that allocated to extended
warranty is INR 57,000 (i.e., 95% of INR 60,000).
Fair value method
It
may be noted here that under the fair value method, the consideration
allocated to the undelivered component is its entire fair value and the
remaining contract price is allocated to the delivered component. As
such, the consideration allocated to the extended warranty (i.e.,
undelivered component) shall be INR 60,000 while the remaining
consideration of INR 510,000 (i.e., INR 570,000 — INR 60,000) shall be
allocated to the sale of vehicle.
Customer loyalty programmes:
A
range of businesses, such as supermarkets, retailers, airlines,
telecommunication operators, credit card providers and hotels offer
customer loyalty programmes, which comprise of loyalty points or ‘award
credits’. Such award credits or loyalty points may be linked to
individual purchases or groups of purchases, or to continued custom over
a specified period. The customer usually redeems these award credits
for free or discounted goods or services.
For a programme to be accounted as a customer loyalty programme, it needs to contain two essential features:
— the entity (seller) grants award credits to a customer as part of a sales transaction; and
—
subject to meeting any other conditions, the customer can redeem the
award credits for free or discounted goods or services in the future.
For
instance, a customer receives a complimentary product with every tenth
product bought from the entity (seller). As the customer purchases each
of the first ten products, they are earning the right to receive a free
good in the future, i.e., each sales transaction earns the customer
credits that go towards free goods in the future.
In accounting
for customer loyalty programmes the company estimates the fair value of
the award credits, generated through its loyalty programmes. The
consideration (for goods sold on which award credits are issued) is
allocated to the award credits based on either the fair value method or
the relative fair value method (as discussed above). Revenue is
recognised for the delivered goods based on the sale consideration
allocated to the goods sold while the sale consideration allocated to
the award credits are recognised when the award credits are redeemed.
Let us understand the above principles with the help of an example —
Example
2: Customer loyalty programmes Company Q runs a loyalty scheme that
rewards customers’ spend at its stores. As per the scheme, customers are
granted 10 award credits for every INR 100 spent in Q’s store.
Customers can redeem their accumulated points towards a discount on the
price of a new product in Q’s stores. The loyalty points are valid for
three years.
During 2012, Q had sales of INR 1,000,000 and
accordingly granted 100,000 loyalty points to its customers. The
management expected only 80,000 loyalty points to be redeemed and that
the cost per point redeemed would be INR 0.8 per point. The management
has adopted fair value method for allocation of consideration to the
multiple deliverables i.e., initial sale of goods and award credits. Q
records the following entries in 2012 in relation to the loyalty points
granted in 2012:
Redemption of award credits in Year 1
During
2012, 30,000 points were redeemed, and at the end of the reporting
period, management still expected a total of 80,000 points to be
redeemed, i.e., a further 50,000 points will be redeemed over the next
two years.
At the end of the reporting period, the balance of
the deferred revenue is INR 40,000 [(50,000/ 80,000) x 64,000].
Therefore, the difference in the deferred revenue balance is recognised
as revenue for the year.
Redemption in year 2: change in estimates
At the end of the year, the balance of deferred revenue for 20,000 loyalty points shall be INR 15,059 [(20,000/85,000) x 64,000] which shall represent the closing balance in deferred revenue account. The differential amount in deferred rev-enue account of INR 24,941 (i.e., 64,000 – 24,000 – 15,059) shall be transferred to revenue. Q records the following entry in 2013 in relation to the loyalty points granted in 2012:
Alternatively, on a cumulative basis INR 48,941 is released from deferred revenue account to revenue, which can be calculated as (65,000/85,000) x 64,000.
The remaining balance in deferred revenue account of INR 15,059 shall be recognised as revenue in the year 2014.
Transfer of assets from customers:
Ind AS 18 provides guidance on transfer of property, plant and equipment (or cash for its acquisition) for entities that receive such assets from their customers in return for ongoing supply of goods or services. As such, the principles contained hereunder do not apply to gratuitous transfers of assets i.e., transfer of assets without consideration. Further, the guidance also cannot be applied to transfers that are in the nature of government grants or those covered under the service concession arrangements.
If it is concluded that the company has obtained control over the asset transferred by the customer, the company should recognise (debit) the transferred asset as its own asset (though it may not have the ownership). The corresponding impact of the transfer should be recognised as either revenue or deferred revenue, depending upon the obligations assumed by the company in lieu of the transferred asset.
Timing of revenue recognition
In determining the timing of revenue recognition, the entity (recipient) considers:
- what performance obligations it has as a result of receiving the customer contribution;
- whether these performance obligations should be separated for revenue recognition purposes; and
- when revenue related to each separately identifiable performance obligation should be recognised.
The accounting for transfer of assets from customers involves an analysis whether the control over the transferred asset is obtained by the company and if the control is transferred the asset will be recognised in the company’s balance sheet. The company is required to determine the obligations assumed by the company in lieu of the transfer of control over the transferred asset and if the above-mentioned obligations are in the nature of ongoing services, then revenue attributable to those obligations is deferred and recognised as the underlying services are rendered and obligations fulfilled where as to the extent that the obligations are fulfilled at the inception of the contract, revenue shall be recognised upfront. The assets transferred by the customer shall be depreciated over the useful life of the asset.
Let us understand the above principles with the help of an example
Example 3: Transfer of assets from customers
Company M enters into an agreement with Company N to outsource some of its manufacturing process. As part of the arrangement, Company M will transfer its machinery to Company N.
Based on a report submitted by independent valuer, the fair value of assets transferred is INR 100,000. Initially, Company N must use the equipment to provide the service required by the outsourcing agreement. Company N is responsible for maintaining the equipment and replacing it when it decides to do so. The useful life of the equipment is 5 years. The outsourcing agreement requires service to be provided for 5 years for a fixed price of INR 30,000 per year, which is lower than the price that Company N would have charged if the equipment had not been transferred. In such case the fixed price would have been INR 50,000 per annum.
Pursuant to a detailed analysis, Company N determines that the control over the equipment is transferred in its favour. Hence, Company N would have to initially recognise the asset at its fair value in accordance with Ind AS 16. Further, Company N would also have to recognise the revenue over the period of the services performed i.e., over 5 years. (Refer Table 1)
Table 1: Recognition of Revenue over Period |
|
INR |
||||||
|
|
|
|
|
|
|
||
|
|
|
|
|
|
|
|
|
|
Particulars |
|
Year 1 |
Year 2 |
Year 3 |
Year 4 |
Year |
|
|
|
|
|
|
|
|
|
|
|
Asset A/c |
Dr. |
100,000 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
To Deferred Revenue A/c |
|
(100,000) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(Being transfer of control over the assets from |
|||||||
|
|
|
|
|
|
|
|
|
|
Bank A/c |
Dr. |
30,000 |
30,000 |
30,000 |
30,000 |
30,000 |
|
|
|
|
|
|
|
|
|
|
|
Deferred Revenue A/c |
Dr. |
20,000 |
20,000 |
20,000 |
20,000 |
20,000 |
|
|
(100,000/5) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
To Revenue |
|
(50,000) |
(50,000) |
(50,000) |
(50,000) |
(50,000) |
|
|
|
|
|
|
|
|
|
|
|
(Being revenue recognised) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Depreciation A/c |
Dr. |
20,000 |
20,000 |
20,000 |
20,000 |
20,000 |
|
|
|
|
|
|
|
|
|
|
|
To Accumulated Depreciation |
|
(20,000) |
(20,000) |
(20,000) |
(20,000) |
(20,000) |
|
|
|
|
|
|
|
|
|
|
|
(Being depreciation provided over 5 years) |
|
|
|
|
|
||
|
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|
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|
|
When payment for goods sold or services rendered is deferred beyond the normal credit terms, and the company does not charge a market interest rate, the arrangement effectively constitutes a sale with financing arrangement and revenue should be recognised at the current cash price. The length of normal credit terms depends on the industry and economic environment in which the company operates.
Example 4: Sale on extended credit terms
Company K sells equipment to Company L for a total consideration of INR 1,000,000. The payment for this sale is deferred over a period of five years with regular payments of INR 200,000 each year to be made by Company L to Company K. No interest is charged by Company K to Company L and the normal credit terms of Company K are four months from the date of sale. The current cash price for the goods sold is INR 758,157. Considering the current cash price and the five annual payments of INR 200,000, the effective interest rate on the transaction works out to 10% p.a.
The sale by Company K to Company L is on deferred payment basis and beyond its normal credit terms. The total consideration under the terms of the arrangement is INR 1,000,000. However, revenue should be recognised at the current cash price i.e., the price at which the goods will be sold without such extended credit terms. The difference between the current cash price and the total consideration should be recognised as finance income over the extended credit period.
Accordingly, the revenue on the date of the transaction shall be recognised at its current cash price of INR 758,157. The difference INR 241,843 (i.e., INR 1,000,000 – INR 758,157) will be recognised as finance income over the period of the contract using the effective interest rate method.
The recognition of finance income based on effective interest rate of 10% is computed as shown in Table 2
Year |
|
Opening Value |
|
|
Interest |
|
|
Payments |
|
Closing Value |
||
|
|
(A) |
|
|
(B) = (A * 10%) |
|
(C) |
|
(D)=(A+B+C) |
|||
|
|
|
|
|
|
|
|
|
|
|
|
|
Year 1 |
|
7,58,157 |
|
|
75,816 |
|
|
-2,00,000 |
|
6,33,973 |
||
|
|
|
|
|
|
|
|
|
|
|
|
|
Year 2 |
|
6,33,973 |
|
|
63,397 |
|
|
-2,00,000 |
|
4,97,370 |
||
|
|
|
|
|
|
|
|
|
|
|
|
|
Year 3 |
|
4,97,370 |
|
|
49,737 |
|
|
-2,00,000 |
|
3,47,107 |
||
|
|
|
|
|
|
|
|
|
|
|
|
|
Year 4 |
|
3,47,107 |
|
|
34,711 |
|
|
-2,00,000 |
|
1,81,818 |
||
|
|
|
|
|
|
|
|
|
|
|
|
|
Year 5 |
|
1,81,818 |
|
|
18,182 |
|
|
-2,00,000 |
|
|
0 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total interest |
|
|
241,843 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
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|
Journal entries |
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|
|
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INR |
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|
|
|
|
|
||
Particulars |
|
|
|
Year 1 |
|
Year 2 |
Year 3 |
|
Year 4 |
Year 5 |
||
|
|
|
|
|
|
|
|
|
|
|
||
Debtors A/c |
Dr. |
|
758,157 |
|
|
|
|
|
|
|
||
|
|
|
|
|
|
|
|
|
|
|
|
|
To Sales A/c |
|
|
|
(758,157) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|||
(Being revenue recognised) |
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|
|
|
|
|
||||
|
|
|
|
|
|
|
|
|
||||
Debtor A/c |
Dr. |
|
75,816 |
|
63,397 |
49,737 |
34,711 |
18,182 |
||||
|
|
|
|
|
|
|
|
|||||
To Finance Income |
|
(75,816) |
|
(63,397) |
(49,737) |
(34,711) |
(18,182) |
|||||
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|
|
|
|
|
|
||||||
|
|
|
|
|
|
|
|
|
|
|
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|
(Being finance income |
|
|
|
|||||||||
|
|
|
|
|
|
|
|
|
||||
Bank A/c |
Dr. |
|
200,000 |
|
200,000 |
200,000 |
200,000 |
200,000 |
||||
|
|
|
|
|
|
|
|
|
|
|||
To Debtor A/c |
|
|
|
(200,000) |
|
(200,000) |
(200,000) |
(200,000) |
(200,000) |
|||
|
|
|
|
|
|
|
|
|
|
|||
(Being amount collected from debtors) |
|
|
|
|
|
|
|
|
Revenue recognition principles prescribed under Ind AS 18 and discussed in this article vary significantly from the currently applicable AS 9 – Revenue Recognition. The application of these principles will require significant judgment in several aspects while preparing an entity’s financial statement.
Further extension for filing half-yearly return —Order No. 1/2012 — Service Tax dated 9-1-2012.
Further extension of last date for filing of e-return and e-refunds application — Trade Circular No. 2T of 2012, dated 24-1-2012.
(2011) 40 VST 240 (SC) Commissioner of Trade Tax, U.P. v. Varun Beverages Ltd.
Facts:
The dealer was engaged in manufacture and sale of soft drinks and beverages, and applied for an eligibility certificate u/s.4A of the U.P. Trade Tax Act, 1948, in relation to inclusion in fixed capital investments also of amounts invested towards purchase of bottles and crates. The Department filed appeal before Supreme Court against judgment of the High Court allowing writ petition filed by the dealer to include purchase of bottles and crates in fixed capital investment.
Held:
So far as bottles were concerned, they were an essential part of the components and equipment necessary for the running of the factory. Therefore the value of such investment would form part of the fixed capital investment and would be entitled to the exemption.
Whereas crates were used by the dealer only for the purpose of marketing, as such the value of crates would not form part of ‘fixed capital investment’ as defined u/s.4A of the U.P. Trade Tax Act, 1948.
Deduction u/s.80-IB(10): Income from developing and building housing project: Land not owned by assessee: All other conditions satisfied: Assessee entitled to deduction u/s.80-IB(10).
The assessee entered into a development agreement with the owners of the land for a housing project. The assessee claimed deduction u/s.80- IB(10) of the Income-tax Act, 1961. The Assessing Officer rejected the claim on the ground that the assessee was not the owner of the land. The Tribunal allowed the assessee’s claim. The Tribunal held that for deduction u/s.80-IB(10) of the Act it is not necessary that the assessee must be the owner of the land. The Tribunal also held that even otherwise looking to the provisions of section 2(47) of the Act, r/w section 53A of the Transfer of the Property Act, by virtue of the development agreement and the agreement to sell, the assessee had, for the purpose of incometax, become the owner of the land.
On appeal by the Revenue, the Gujarat High Court upheld the decision of the Tribunal and held as under:
“Terms and conditions of development agreement showed that assessee had taken full responsibility for execution of the projects and the resultant profits or loss belonged to the assessee in entirety and all other conditions of section 80-IB(10) being satisfied, deduction u/s.80-IB(10) could not be disallowed to assessee on the ground that the land under development projects was not owned by the assessee and in some cases development permission was granted in the name of original land owners.”
Charitable purpose: Sections 2(15) and 80G(5): Recognition u/s.80G(5): Objects of assessee-trust include conduct of periodical meetings on professional subjects and publishing and selling books/booklets on professional subjects: Activities are charitable in nature and cannot be construed to be in the nature of trade or commerce or business: Assessee is entitled to approval u/s.80G(5).
The objects of the assessee-trust included conduct of periodical meetings on professional subjects, publishing books, booklets, etc., on professional subjects i.e., bank audit, tax audit, etc., and selling the same. The assessee filed an application in Form 10G to the Director of IT (Exemption), Chennai for grant of renewal u/s.80G of the Income-tax Act, 1961. The application was rejected on the ground that the assessee was publishing and selling books of professional interest to be used as a reference material by the general public as well as the professionals in respect of bank audit, tax audit, etc., and its activities are commercial in nature and will fall within the amended provision of section 2(15) of the Act. The Tribunal allowed the assessee’s appeal.
On appeal by the Revenue, the Madras High Court upheld the decision of the Tribunal and held as under:
“Activities of the assessee-trust in publishing and selling books of professional interest which are meant to be used as reference material by the general public as well as the professionals in respect of bank audit, tax audit, etc., cannot be construed as commercial activities and, therefore, the assessee-trust was entitled to approval u/s.80G(5) of the Act.”
Capital gain: Computation: Sections 48 and 49, and section 7 of the Wealth-tax Act, 1957: A.Y. 1992-93: Cost with reference to certain modes of acquisition: Sale of jewellery inherited from son: Fair market value of jewellery as on 1-4-1974 should be arrived at by reverse indexation, from fair market value as on 31-3-1989 on basis of which Revenue had imposed Wealth Tax upon assessee: Reverse indexation is not to be done from date of sale held in December 1991 based on sale price.
In the month of December, 1991, the assessee had sold certain jewellery which she inherited from her son. The assessee herself gave a declaration of fair market value of the selfsame jewellery as on 31-3-1989 based on the report of a registered valuer for the purpose of the Wealth-tax Act and the Assessing Officer had accepted the said valuation. Further the assessee for calculation of the capital gains arising from sale of the aforesaid jewellery worked out the fair market value of the jewellery as on 1-4-1974 by following the method of reverse indexation. She adopted the base as the fair market value of the jewellery worked out as on 31-3-1989 on the basis of valuation done by the registered valuer. The Tribunal held that fair market value of the jewellery as on 1-4-1974 should be arrived at by reverse indexation from the date of sale held in December, 1991 based on the sale price and not from the fair market value as on 31-3-1989.
On appeal by the assessee, the Gujarat High Court reversed the decision of the Tribunal and held as under:
“(i) According to provisions contained in sections 48 and 49, 1-4-1974 should be treated to be the date in the instant case on which the jewellery was deemed to have been acquired by the assessee. There is no dispute that although the jewellery was transferred in the month of December, 1991, the assessee herself gave a declaration of fair market value of the selfsame jewellery as on 31-3-1989 based on the report of a registered valuer for the purpose of the Wealth-tax Act as required under the said Act. It is admitted position that the Assessing Officer has accepted the said valuation and has not disputed the same for the purpose of the Wealth-tax Act.
(ii) There is also no dispute that both the assessee and the Revenue agreed before the Tribunal that the method of reverse indexation should be the appropriate one for the purpose of ascertaining the fair market valuation of the jewellery as on 1-4-1974.
(iii) There is substance in the contention of the assessee that the Revenue having accepted the valuation of the same jewellery given by her as on 31-3-1989 as correct valuation for the purpose of the Wealth-tax Act, there is no reason why the same valuation should not be treated to be a reliable base for the purpose of computing the capital gain under the Income-tax Act by the process of reverse indexation. There is no reason to disbelieve the valuation given by the assessee under the Wealth-tax Act as on 31-3-1989 based on the valuation assessed by a registered valuer in terms of the said statute. The Revenue having accepted the said valuation for the purpose of the Wealth-tax Act is precluded from disputing the correctness of the selfsame valuation for the purpose of assessment of capital gain, as the factor of ‘fair market value’ is decisive for the purpose of both the Wealth-tax Act and in ascertaining the cost of acquisition under the Income-tax Act.
(iv) Therefore, there was no justification for disbelieving the valuation of the selfsame jewellery given by the assessee as on 31-3-1989 for the purpose of Wealth-tax Act.
(v) Therefore, the order passed by the Tribunal was liable to be set aside. The Assessing Officer was to be directed to recalculate the capital gain by adopting reverse indexation based on valuation of jewellery given by the assessee as on 31-3-1989 for the purpose of Wealth-tax Act.”
Reassessment: Sections 143(2), 143(3), 147 and 148 of Income-tax Act, 1961: A.Y. 2003- 04: Assessment u/s.147 cannot be made within the time available for issuing notice u/s.143(2) and for completion of assessment u/s.143(3).
For the A.Y. 2003-04, the Assessing Officer accepted the returned income u/s.143(1) of the Income-tax Act, 1961. Subsequently, even before the expiry of the period for issuing the notice u/s.143(2) for completing the assessment u/s.143(3) the Assessing Officer issued notice u/s.148 holding that income chargeable to tax has escaped assessment and passed an assessment order u/s.147. The Tribunal allowed the assessee’s claim and cancelled the assessment and held that within the time provided for regular assessment u/s.143(3) after issuing notice u/s.143(2), no reassessment u/s.147 is permissible under the Act.
On appeal by the Revenue the Kerala High Court upheld the decision of the Tribunal and held as under:
“(i) Reassessment u/s.147 cannot be completed within the time available for issuing notice u/s.143(2) and for completion of assessment u/s.143(3).
(ii) Similar view taken by the Madras and the Delhi High Courts remains unchallenged by the Department. The Departmental appeal is dismissed.”
(2012) 25 STR 184 (SC) — Union of India v. IND-SWIFT Laboratories Ltd.
Facts:
The assessee-company was engaged in manufacture of bulk drugs, and availed CENVAT credit on the duty paid on inputs and capital goods. However, investigation conducted determined that such credits were availed on fake invoices and hence, duty was payable with interest. The duty was paid as directed by the settlement commission. However, the assessee objected to pay interest levied from the date of availment contending that interest if at all leviable, be levied from the date of utilisation. In short, interpretation of Rule 14 of the CENVAT Credit Rules, 2004 (Credit Rules) was the issue involved for determining the date from which the interest was leviable.
Held:
It was held that interest be levied from the date of availment of credit because once the credit is taken, the beneficiary is at liberty to utilise the same immediately thereafter, subject to rules. Also, it was held that the High Court had no authority to reject the order issued by the settlement commission and hence, the High Court should not have substituted its own opinion against the opinion of the Settlement Commission. As regards interpretation of Rule 14 of Credit Rules, the Apex Court observed that the High Court proceeded by reading down Rule 14 to interpret that interest cannot be claimed simply for the reason that CENVAT credit was wrongly taken, as such availment by itself does not create any liability of payment of excise duty. The Court further observed that it is not permissible to import provisions in a taxing statute so as to supply any assumed deficiency. Rules of reading down to be used for limited purpose of making particular provision workable and to bring it in harmony with other provisions of the statute. In the instant case, the attempt of the High Court is erroneous. The Revenue’s appeal was thus allowed.
(i) On facts, lump-sum turn-key contract was a composite indivisible contract; and hence, the consortium was to be taxed as an AOP. (ii) As two consortium members had come together for gain, composite contract was awarded to the consortium (and not to individual members), an AOP was formed and mere internal division of responsibility or separate payment cannot undo the AOP. (iii) Work done outside India and supply of equipment and spares outside India were inextricably linked with the work of c<
(2012) 19 Taxmann.com 238
(AAR — New Delhi)
Section 2(31) of Income-tax Act Dated: 20-3-2012
Before P. K. Balasubramanyan (Chairman) & V. K. Shridhar (Member)
On facts, lump-sum turn-key contract was a composite indivisible contract; and hence, the consortium was to be taxed as an AOP.
As two consortium members had come together for gain, composite contract was awarded to the consortium (and not to individual members), an AOP was formed and mere internal division of responsibility or separate payment cannot undo the AOP.
Work done outside India and supply of equipment and spares outside India were inextricably linked with the work of consortium. Since the contract was indivisible and awarded to an AOP, payment receivable therefore was taxable in India.
ONGC issued a tender for supply of a plant on lumpsum turn-key basis. The bidders were required to provide services for design, engineering, procurement, construction, installation, commissioning and handing over of the plant on turn-key basis. Two foreign companies entered into an MOU to bid jointly as a consortium. Thereafter, they also executed an ‘Internal Consortium Agreement’. The bid of the consortium was accepted by ONGC. Pursuant to the bid, ONGC entered into contract with the consortium. In terms of contract, the consortium had various rights and was subject to various obligations. The contract did not assign any individual role to the members of the consortium and the payments were also to be made to the consortium.
- The applicant contended as follows. The agreement entered into by the members was a divisible contract and the respective scope of work, obligations and consideration of each member were clearly identified.
- he obligations of the applicant were divisible in three parts: (i) supply of design, engineering of equipment, materials; (ii) fabrication, procurement and supply of equipment and material outside India; and (iii) supervision of installation, testing and commissioning of the equipment, materials at site in India.
- The offshore activities are not taxable in India.
- In terms of Article 5(2)(i) of India-Germany DTAA, PE would come into existence only after the equipment reached site in India.
- Relying on Ishikawajima-Harima Heavy Industries v. Director of IT, (2007) 288 ITR 408 (SC), the contract should be split into separate parts and obligations of each consortium member should be considered independent from that of the other consortium member. Further, in terms of CIT v. Hyundai Heavy Industries Co. Ltd., (2007) 291 ITR 482 (SC), income from offshore active were not taxable in India. The tax authority contended as follows.
- When the rights and obligations under the contract were that of the consortium, splitting up of a lump-sum turn-key contract only for taxation purpose would be artificial, particularly, if Explanation 2 to section 9(2) of Income-tax Act (which was inserted with retrospective effect) is considered.
- The responsibility for establishing the project was that of the consortium. The consortium remained liable even after commissioning. Accordingly, consortium should be treated as an AOP.
- The contract does not mention offshore or onshore supply of services, nor does it specify that title to the machinery shall pass on high seas or in the country of origin. The consortium’s risk continued until commissioning, testing, etc. Accordingly, the title to the machinery does not pass offshore. Ruling: The AAR observed and held as follows.
As regards divisibility of contract:
- In Vodafone International Holdings B. V. v. Union of India, (2012) 341 ITR 1 (SC), the Supreme Court held that section 9(1)(i) of the Income-tax Act is not a ‘look through’ provision and the Revenue/ Court should ‘look at’ the transaction as a whole and should not adopt a dissecting approach to ascertain the legal nature of the transaction.
- A contract for sale of goods is different from that for erection and commissioning of plant since the latter also involves designing and engineering.
- The situs of an erection contract should be the place where the plant is to be erected.
- Internal consortium agreement is only an internal arrangement between the members and the MOU cannot supersede or override the contract.
- On holistic reading of the contract, it is an indivisible contract containing rights and obligations of ONGC and the consortium. As regards taxability of consortium as AOP:
- This was a case of two co-adventures coming together for promotion of a joint enterprise with a view to make a gain. Composite contract was awarded to the consortium (and not to individual members) for the whole work and payment was to also be made only to the consortium. Hence, the consortium was to be taxed as an AOP.
- The internal division of responsibility by the members, recognition of such division by ONGC or making of separate payments by ONGC to the two members cannot undo the formation of AOP. As regards taxability of work done outside India:
- The contract is an indivisible whole. Even if a significant part of design and engineering work is done outside India, it cannot be viewed in isolation and apart from the contract since it is inextricably linked with the work of erection and commissioning undertaken by the consortium. Having regard to an indivisible contract and existence of an AOP, amount receivable in respect of design and engineering is liable to be taxed in India. As regards taxability of supply of equipment and spares outside India:
- Since the contract is indivisible and the consortium is to be taxed as an AOP, amount receivable in respect of supply of equipment, material and spares outside India is liable to be taxed in India.
Having regard to MFN clause under India-France DTAA, scope of services can be restricted to that under India-USA DTAA. However, since India-USA DTAA does not include ‘managerial services’ in FIS whereas India-French DTAA includes the same in FTS, the restricted scope cannot supply in case of ‘managerial services’.
Decided on: 16-4-2012
Before P. K. Balasubramanyan (Chairman) Present for the appellant: Chythanaya K. K. Present for the Department: Shweta Mishra
Having regard to MFN clause under India-France DTAA, scope of services can be restricted to that under India-USA DTAA. However, since India-USA DTAA does not include ‘managerial services’ in FIS whereas India-French DTAA includes the same in FTS, the restricted scope cannot supply in case of ‘managerial services’.
The applicant Indian company (‘ICo’) was whollyowned subsidiary of a French company. The parent French company had another wholly-owned French subsidiary company (‘FrenchCo’). ICo entered into ‘Services Agreement’ with FrenchCo under which, FrenchCo was to provide certain services to ICo and ICo was to reimburse the expenses incurred by FrenchCo for providing these services. In addition to the expenses, ICo was to pay 5% of the reimbursed amount. The payment was to be remitted to France, net of withholding tax and withholding tax, if any, was to be borne by ICo. ICo had also entered into another agreement with FrenchCo which, however, was not the subjectmatter of ruling. ICo sought the ruling of AAR in respect of the taxability of the payments made to FrenchCo and particularly whether they were FTS in terms of Article 13(4) of India-France DTAA (read with the Protocol), or business profits in terms of Article 7 and, if they were business profits, whether they would be taxable as FrenchCo did not have a PE in India in terms of Article 5. Protocol to India-France DTAA contains MFN clause (Paragraph 7) and provides that if India enters into DTAA with an OECD country after 1st September 1989, and the scope or rate of tax under that DTAA is more restricted than that under India-France DTAA, the scope or rate of tax under India-France DTAA would also be restricted. India entered into DTAA with the USA on 12 September 1989 whereunder the scope of services was restricted by inclusion of the phrase ‘make available’. Hence, ICo contended that though India-France DTAA does not contain ‘make available’, the protocol to India-France DTAA should be considered to determine whether the payment is FTS. However, the tax authority contended that only lower rate of tax should be considered and the scope cannot be narrowed by considering the protocol.
Held:
The AAR observed and held as follows. l The fact of the transactions being undertaken on arm’s-length basis should be verified to determine whether income can still be attributed to PE. l In the absence of the phrase ‘make available’ in India-France DTAA, the concept may be borrowed from India-USA DTAA. However, as only technical and consultancy services are covered in India-USA DTAA, the concept of ‘make available’ can apply only in respect of those services. Since Article 13 of India-France DTAA also includes ‘managerial services’, and since it does not stipulate that they should be ‘made available’, the payments for ‘managerial services’ would be taxable as FTS. l Since ‘managerial services’ are specifically dealt with under Article 13, question of treating them as business profits under Article 7 does not arise.
(i) Composite contract for installation and commissioning project cannot be split into parts for the purpose of taxation. (ii) Several consortium members who had come together for earning income, and the composite contract was awarded to the consortium. Hence, the consortium was liable to be taxed as an AOP.
Before P. K. Balasubramanyan (Chairman)
Present for the appellant: N. Venkatraman, Satish Aggarwal, Akhil Sambhan,
Vinay Aggarwal, Atul Awasthi,
Present for the Department: Bhupinderjit Kumar
Composite contract for installation and commissioning project cannot be split into parts for the purpose of taxation.
Several consortium members who had come together for earning income, and the composite contract was awarded to the consortium. Hence, the consortium was liable to be taxed as an AOP.
Bangalore Metro Rail Corporation Limited (‘BMRC’) floated a tender for design, manufacture, supply, installation, testing and commissioning of signalling/ train control and communication systems.
The applicant was a tax resident of France (‘FrenchCo’). FrenchCo, together with several other companies, entered into a consortium agreement, which was executed and registered in India. The agreement mentioned that the members were to: co-operate on an exclusive basis to submit a joint tender to BMRC; to negotiate with BMRC to secure the contract; not to take up any additional work in respect of the work for which the tender was floated; to be jointly and severally bound by the terms of the tender; and to be jointly and severally liable to BMRC for all obligations under the contract.
The obligations of FrenchCo under the contract pertained to off-shore supply of plant and spares and off-shore designing and training of operating and maintenance personnel. FrenchCo sought ruling of AAR on the issue whether, the amounts received by FrenchCo as a member of the consortium, for the supply of plant and off-shore services were chargeable to tax in India in terms of Income-tax Act and India-France DTAA.
Ruling:
- The AAR observed and held as follows. A contract should be read as a whole in the context of the object sought to be achieved and it cannot be split into different parts for the purpose of taxation. The tender floated by BMRC was a composite tender, the bid submitted by the consortium was for the work tendered and the contract between BMRC and the consortium was for installation and commissioning of signaling and communication system. Such contract cannot be split into separate parts.
- In Vodafone International Holdings B. V. v. Union of India, (2012) 341 ITR 1 (SC), the Supreme Court held that section 9(1)(i) of Income-tax Act is not a ‘look through’ provision and the Revenue/Court should ‘look at’ the transaction as a whole and should not adopt a dissecting approach to ascertain the legal nature of the transaction. Thus, impliedly, the Supreme Court has disapproved/overruled the approach adopted in Ishikawajima-Harima Heavy Industries v. Director of IT, (2007) 288 ITR 408 (SC).
- The consortium members came together for executing the project, were jointly and severally liable for performance of the obligations and their common object and purpose for coming together was to earn income. Hence, the consortium was to be taxed as an AOP. The division of obligation amongst members could not alter the status that was acquired while entering into the contract since the legal rights and obligations arising out of and undertaken under the contract would determine the status of the consortium.
- Entire income under the contract was taxable in the hands of the consortium as on AOP.
Indian subsidiary performing functions in India, which, in its absence, the parent would have been required to perform, constituted PE.
(2012) 22 Taxmann.com 74 (AAR)
Article 5 of India-Singapore DTAA
1Dated: 7-6-2012
Before P. K. Balasubramanyan (Chairman)
Present for the appellant: P. J. Pardiwala, Ravi
Praksh, Abhinav Ashwin, Karina Haum
Present for the Department: Shishir Srivastava
Indian subsidiary performing functions in India, which, in its absence, the parent would have been required to perform, constituted PE of the parent and consequently, income was attributable to the PE.
The applicant was a company incorporated in, and tax resident of Singapore (‘SingCo’). SingCo was a member of a Group of companies, which were engaged in door-to-door express shipments and related transport services. A Group company incorporated in Bermuda (‘BermudaCo’) had a wholly owned subsidiary in India (‘IndCo’). BermudaCo had business arrangement with IndCo for inbound and outbound movement of packages within India. SingCo entered into agreement with IndCo for carrying on the business arrangement originally carried on by BermudaCo. The agreement was on principal-to-principal basis.
In terms of the agreement:
(i) IndCo was non-exclusive agent of SingCo for transportation of packages in India.
(ii) IndCo had full discretion to open offices in India at its own expense. However, it was not to act on behalf of SingCo.
(iii) SingCo was responsible for transportation of packages throughout the world (outside India) and IndCo was not permitted to engage any service provider for rendering services outside India.
(iv) IndCo was also involved in domestic transportation of packages where the Group network was not used.
(v) Roughly, one-third income of IndCo was from its arrangement with SingCo.
(vi) SingCo was responsible for transportation of packages throughout the world (outside India) and IndCo was not permitted to engage any service provider for rendering services outside India.
(vii) SingCo was charging fees for providing certain support functions to IndCo. The issues raised before AAR were: l Whether, in terms of India-Singapore DTAA, IndCo constituted PE of SingCo in India? l Whether the receipts from outbound and inbound consignments were attributable to PE? l If the transactions between SingCo and IndCo were on arm’s-length basis, whether income could still be attributed to the PE? l If IndCo did not constitute PE, whether the fees received for support functions could be regarded as FTS under India-Singapore DTAA?
Held:
The AAR observed and held as follows.
- PE is a place of business which enables a nonresident to carry on a part of its business in another country. SingCo cannot carry on its business, unless it makes arrangement for delivery of packages in India, either directly or through another entity. IndCo performed several functions such as obtaining orders, collecting and transporting packages to a specified destination, etc., which, otherwise, SingCo/Group would be required to perform. Hence, under Article 5(1) of India-Singapore DTAA, IndCo would constitute PE of SingCo/ Group in India. l Further, IndCo secures orders in India for the Group and also has right to conclude contracts for the express shipments business of the Group. Hence, under Article 5(8) of India- Singapore DTAA, it is agency PE of the Group. The exception under Article 5(10) of India- Singapore DTAA would not apply merely by describing IndCo as an independent entity or a non-exclusive agent when the Group is carrying on its business in India through IndCo.
- Since SingCo has a PE, income attributable to the PE is taxable in India and hence, payments made by IndCo to SingCo were subject to withholding of tax.
- The fact of the transactions being undertaken on arm’s-length basis should be verified to determine whether income can still be attributed to PE.
Order No. [F. No. 225/124/2012/ITA.II], dated 20-6-2012 — Order extending due date for filing Form 49C for F.Y. 2011-12.
Commodity Markets
Strange as it may sound, the Indian commodity markets are older than the securities markets, however, very little is known about these markets to the common man. The various commodity markets in India clocked a turnover of over Rs.92 trillion for the period ended April to December 2011. Commodity markets have various components, such as bullion, metals, grains, energy, oil and oilseeds, petrochemicals, pulses, spices, plantation products, etc. and span over 100 commodities. In the recent past, gold and silver have given excellent returns and that is why now there is a sustained interest in the commodity markets. Let us take a bird’seye view of the regulatory aspect of this market, the types of contracts which can be executed, the tax treatment of these contracts, etc.
Forward Contracts (Regulation) Act
The FCRA regulates the forward contracts in commodities. As the name suggests, it does not apply to spot delivery contracts. It is somewhat similar in nature to Securities Contracts (Regulation) Act, 1956.
Forward Market Commission
Types of contracts
(a) Ready Delivery Contracts — Contracts where delivery and payment must take place immediately or within a maximum period of 11 days. These are similar to the spot delivery contracts which one comes across under the SCRA. If a commodity contract is settled by cash or by an offsetting contract and as a result of that the actual tendering of goods is dispensed with, then it is not an Ready Delivery Contract. These contracts are outside the purview of the Forward Markets’ Commission. The Amendment Bill seeks to increase the duration from 11 to 30 days.
(b) Forward Contracts — These are contracts for the delivery of goods and are not a Ready Delivery Contract. The FMC regulates these Contracts. Commodity derivatives are also a type of Forward Contract. Thus, a contract which is settled by cash or by an offsetting contract and as a result the actual tendering of goods is dispensed with becomes a Forward Contract.
Forward Contracts can be of three types:
(a) Specific Delivery Contract — It is a Forward Contract which provides for the actual delivery of specific qualities of goods. The delivery must take place during a specified future period at a price fixed/to be fixed. Further, the names of the buyer and seller must be mentioned in the contract. The Amendment Bill proposes to add that such contracts must also be actually performed by actual delivery.
Specific Delivery Contracts cannot be settled by paying the difference in cash or by an offsetting contract. They can be executed on an off-market basis also. Specific delivery contracts are contracts entered into for actual transactions in the commodity and the terms of contract may be tailored to suit the needs of the parties as against the standardised terms found in futures contracts.
Specific Delivery Contracts, in turn, can be of two types — Non-Transferable (NTSDC) and Transferable (TSDC). Non-transferable are those contracts which are only between a defined buyer and a seller and cannot be transferred by either party, whereas ‘transferable contracts’ may be transferred from one person to another till the actual maturity of the contract or delivery date.
(b) Forward contracts other than specific delivery contracts are what are generally known as ‘Futures Contracts’, though the Act does not specifically define the term futures contracts. Such contracts can be performed either:
- by delivery of goods and payment thereof or by entering into offsetting contracts and payment; OR
- by cash settlement, i.e., receipt of amount based on the difference between the rate of entering into contract and the rate of offsetting contract.
Thus, the main difference between Specific Delivery Contracts and Futures is that while Specific Delivery Contracts must be performed by delivery, futures can be cash settled also. Futures contracts are usually standardised contracts where the quantity, quality, date of maturity, place of delivery are all standardised and the parties to the contract only decide on the price and the number of units to be traded. Futures contracts must necessarily be entered into through the Commodity Exchanges.
(c) Option Agreements —
The Amendment Act proposes to add a third category — options in commodities. This would mean an agreement for the purchase or sale of a right to buy and/or sell goods in future and includes a put and call in goods. These must be entered into through the Commodity Exchanges.
Commodity exchanges
Currently, permanent recognition has been granted to three national-level multi-commodity exchanges, Multi-commodity Exchange of India Limited (MCX), National Commodity and Derivatives Exchange Limited (NCDEX), and National Multi-commodity Exchange of India Limited (NMCE) Ahmedabad. These national commodity exchanges have permission for conducting forward/futures trading activities in all commodities, to which section 15 of the FCRA is applicable.
Members of commodity exchanges are commodity brokers.
Trading in forward contracts
Nothing contained in section 15 applies to Specific Delivery Contracts, whether transferable or non-transferable. However, the Central Government is empowered u/s.18(3) to notify such classes of Specific Delivery Contracts to which the provisions of section 15 would also apply.
Regulation of commodity brokers
Commodity brokers cannot provide advisory services to clients for investment in commodities futures contract. Portfolio advisory services, portfolio management services and other services are not permissible in the Commodity Derivative Markets. The FMC has not formulated any guidelines for investment advisory services by any entity and hence, these activities are not permitted to the brokers.
Trading in overseas commodities exchanges and setting up joint ventures/wholly-owned subsidiaries abroad for trading in overseas commodity exchanges is reckoned as financial services activity under the FEMA Regulations and requires prior clearance from the FMC. Any investment in a JV/WOS for such a purpose would have to comply with the requirements for overseas direct investment in a financial service as specified under Rule 7 r.w. Rule 6 of the FEMA Notification No. 120/2004.
FDI in commodity brokerages
Neither the Consolidated FDI Policy issued vide Circular 2/2011, nor the Regulations issued under the FEMA, 1999 contain any specific provision for foreign direct investment in a commodity brokerage. Hence, any FDI in a commodity brokerage would require prior FIPB approval. The FIPB has given approvals to several such FDI proposals.
However, it may be noted that the RBI does not permit foreign banks to invest in commodity brokerages, whether directly or indirectly. Hence, any proposal for FDI by a foreign bank in a commodity broker would not be permissible. It is for this reason that the takeovers of IL&FS Investmart by HSBC and Geojit Securities by BNPI were held up by the RBI till such time as the commodity broking arms were hived-off/restructured. FDI in commodity exchanges is allowed up to 49% (FDI & FII). Investment by Registered FIIs under the Portfolio Investment Scheme (PIS) is limited to 23% and investment under the FDI Scheme is limited to 26%.
Taxation of commodity contracts
Taxation of commodity derivative contracts is one of the issues facing investors and traders in commodities. The first question to be considered is whether the assessee is an investor or a trader and hence, whether his gain is taxable as capital gains or as business income. The various tests, judgments, controversies, etc., which one comes across while dealing with this issue in the case of securities would be applicable even to commodities.
Secondly, in the cases where they constitute a business, the question arises whether they constitute a speculative business. Section 43(5) of the Income-tax Act grants a specific exemption to derivatives traded on stock exchanges. However, there is no specific exemption for contracts traded on commodity exchanges. Hence, one would have to ascertain whether a commodity contract falls under any of the other exemptions specified u/s.43(5).
Further, the losses from speculative commodity businesses can only be set off against speculative commodity businesses. They cannot be set off against profits from delivery based commodity transactions or capital gains or profits from security derivatives transactions.
Stamp duty on contract notes
Stamp Duty on commodity transactions is a State subject and the duty incidence would depend upon the location of the broker’s office which issues the contract note. For instance, under the Bombay Stamp Act, 1958, the State of Maharashtra levies a duty @ 0.005% of the value of the contract for the purchase or sale of any commodity, such as cotton, bullion, spices, oil seeds, spices, etc. Similarly, any electronic or physical contract note issued by a commodity broker, whether delivery based or non-delivery based attracts a duty @ 0.005%.
Maharashtra levies one of the highest incidences of stamp duty on commodity broker notes. Earlier, such contracts were charged with minimum duty of Rs.100 per document.
Section 10B of the Bombay Stamp Act, provides that it is the responsibility of the commodity exchange to collect the stamp duty due on brokers’ notes by deducting the same from the brokers account at the time of settlement of such transactions.
Penalties under FCRA
Any violation of the FCRA is a criminal offence inviting imprisonment and/or a fine. The Bill proposes to make the penalties for violating the FCRA more stringent, for example, violation of some of the provisions would carry imprisonment up to one year and/or a fine ranging from Rs.25000 to Rs.25 lakh. The Bill also seeks to introduce penalties for insider trading similar to what is found under the SEBI Act.
Auditor’s responsibility
Just as a compliance audit of stock brokers requires a knowledge of the securities markets, an audit of commodity brokers requires knowledge of the commodity markets on the part of the auditor. This would include a knowledge of the various applicable Regulations, relevant Exchange Circulars, Compliance Forms, etc.
An auditor of a market intermediary should be well-versed with the important laws in this respect which affect the functioning and the existence of the entity. For instance, in case of the intermediaries, non-compliance with the regulations could result in cancellation of the registration certificate and this would affect the very substratum of the entity.
By broadening his peripheral knowledge, the Auditor can make intelligent enquiries and thereby add value to his services. He can caution the auditee of likely unpleasant consequences which might arise as a result of improperly stamped or unregistered mortgage deeds. It needs to be repeated and noted that the audit is basically under the relevant law applicable to an entity and an auditor is not an expert on all laws relevant to business operations of an entity. All that is required of him is exercise of ‘due care’.
AMENDMENTS IN DIRECT TAX PROVISIONS BY THE FINANCE ACT, 2012
The Finance Minister presented the Budget
for the year 2012-13 on 16th March, 2012, and introduced the Finance
Bill, 2012, containing 154 clauses. Out of these, 113 clauses relate to
‘Direct Taxes’ and other 41 clauses relate to ‘Indirect Taxes’. There
was heated discussion on the various provisions of the Bill which
included over 30 amendments in various sections of the Income-tax Act
with retrospective effect. There was lot of protest in India and abroad
as most of these amendments would affect non-residents and will have
adverse effect on global trade. Inspite of this protest, the Government
could manage to get through the legislation with some changes. The
Finance Act, 2012, containing 119 sections relating to Direct Taxes is
now passed by both Houses of the Parliament and received the assent of
the President on 28-5-2012. Originally, the existing Income-tax Act was
to be replaced by the Direct Taxes Code (DTC) w.e.f. 1-4-2012. Since the
implementation of DTC is delayed, we will have to live with the
existing Income-tax Act for one more year. Some of the amendments made
by the Finance Act, 2012, will give some relief in the computation of
Income and Tax. However, some of the amendments, which have
retrospective and retroactive effect, will make the life of taxpayers
miserable.
In particular, the retrospective amendments of some
of the sections of the Income-tax Act will increase the tax burden of
non-resident assessees and also increase their compliance cost. In this
respect, the tax litigation will also increase in the coming year. In
this article, the amendments made in the Incometax Act, Wealth-tax Act
and Securities Transaction Tax are discussed.
2. Rates of income tax, surcharge and education cess:
2.1
Relief in income tax: The tax slabs for individuals, HUF, AOP, BOI,
etc. have been made more beneficial. The exemption limit for these
assessees have been raised from Rs.1.80 lac to Rs.2 lac. As a result of
the revision of the exemption limit and realignment of some of the
slabs, tax liability of this category of assessees for A.Y. 2013-14 will
be less by Rs.2,000 in respect of income up to Rs.8 lac. In respect of
income above Rs.8 lac the reduction of the tax will be of Rs.22,000. For
senior citizens and very senior citizens there is no change in tax
payable on income up to Rs.8 lac. If the income is more than Rs.8 lac
the reduction in the tax liability in their cases will be of Rs.20,000.
2.2 Rates of income tax:
(i)
For individuals, HUF, AOP, BOI and Artificial Juridical person, as
stated above, the threshold limit of basic exemption has been increased
for A.Y. 2013-14. Individuals above the age of 60 years are treated as
‘Senior Citizens’ and those above the age of 80 years are treated as
‘Very Senior Citizens’. The rates of tax for A.Y. 2012-13 and A.Y.
2013-14 are as under:
(a) Rates in A.Y. 2012-13 (Accounting Year ending 31-3-2012)
(b) Rates in A.Y. 2013-14 (Accounting Year ending 31-3-2013)
No
surcharge is payable for A.Y. 2012-13 and 2013-14. However, education
cess of 3% (2+1) of the tax is payable for both the years.
(ii)
The following table gives comparative figures of tax payable by
individuals, HUF, AOP, BOI, etc. in A.Y. 2012-13 and A.Y. 2013-14.
The above tax is to be increased by 3% of tax for education cess.
(a) Tax payable in A.Y. 2012-13 (Accounting Year ending 31-3-2012)
(b) Tax payable in A.Y. 2013-14 (Accounting Year ending 31-3-2013)
The
concessional rate of 15% plus applicable surcharge and education cess
which was provided for A.Y. 2012-13 has been continued for A.Y. 2013-14
also.
(vii) Rate of Alternate Minimum Tax (AMT)
The
rate of tax 18.5% plus education cess of 3% of tax which was payable as
AMT on income of LLP for A.Y. 2012-13 is now payable by all assessee,
other than a company, i.e., LLP, firm, individual, HUF, AOB, BOI, etc.
in A.Y. 2013-14. No surcharge is payable on AMT.
2.3 Surcharge on income tax:
(i)
As in A.Y. 2012-13, no surcharge is payable by non-corporate assessees
i.e., individuals, HUF, AOP, BOI, Firm LLP, co-operative societies, etc.
in A.Y. 2013-14. In the case of a company the rate of surcharge, if
income exceeds Rs.1 Cr, is 5% of income tax. As regards MAT u/s.115JB,
if the book profit exceeds Rs.1 Cr., rate of surcharge is 5%.
(ii) As regards TDS and TCS, no surcharge is required to be added to the rates of TDS or TCS.
(iii) In the case of dividend distribution tax u/s.115O and 115R the rate of surcharge on tax (i.e., 15%) is 5% of the tax.
(iv)
In the case of foreign companies, the rate of surcharge on income tax
is 2% of tax if the taxable income of the company exceeds Rs.1 Cr.
Similarly, the rate of surcharge on tax to be deducted u/s.195 in case
of foreign company is 2% of the tax if the income from which tax is
deductible at source exceeds Rs.1 Cr. 2.4 Education cess: As in earlier
years, education cess of 3% (including 1% higher education cess) of
income tax and surcharge (if applicable) is payable by all assesses
(Residents or non-residents). No education cess is applicable on TDS or
TCS from payments to all residents (including companies). However, if
tax is deducted from payments made to
(a) foreign companies,
(b) non-residents or
(c)
on salary payments to residents or non-residents, education cess at 3%
of the tax and surcharge (if applicable) is to be deducted.
3. Tax Deduction and Collection at Source (TDS and TCS):
3.1 Section 193: At
present, no tax is required to be deducted at source if interest
payable to a resident individual on debentures issued by a listed
company does not exceed Rs.2,500 in a year. This limit is increased to
Rs.5,000 w.e.f. 1-7-2012. This concession will now apply to debentures
issued by unlisted public companies as well as to interest payable to
resident HUF. The existing exemption in respect of interest paid on
debentures issued by listed companies which are held in Demat Account
will continue without any limit. The amendment in this section comes
into force on 1-7-2012.
3.2 Section 194J — TDS from fees
from professional or technical services: This section is now amended
w.e.f. 1-7-2012. It will now be necessary for a company to deduct tax at
source from any remuneration, fees or commission paid or payable to a
director, if no tax is deductible u/s.192 under the head salary. The
rate for TDS is 10%. It may be noted that the manner in which the
section is amended indicates that this deduction is to be made
irrespective of the quantum of such payment in the year. As regards
professional fees, technical service fees, royalty, etc. to which this
section applies it is provided that tax is to be deducted only if
payment under each head exceeds Rs.30,000 in the financial year.
Therefore, in case of payment of fees to non-executive directors and
independent directors as ‘Director’s Fees’, the tax at 10% will be
deductible even if the total payment in the F.Y. is less than Rs.30,000
to each of them.
3.3 Section 194LA:
3.4 Section 194LC:
This is a new section inserted in the Income-tax Act w.e.f. 1-7-2012. It provides for deduction of tax at the concessional rate of 5% plus applicable surcharge and education cess, in respect of interest paid to a non-resident, other than a foreign company. This interest should relate to monies borrowed by an Indian company from the non-resident at any time on or after 1-7-2012 and before 1-7-2015 in foreign currency from a source outside India. This borrowing should be (i) under a loan agreement or (ii) by way of issue of long- term infrastructure bonds approved by the Central Government. Further, the rate of such interest should not exceed the rate approved by the Government for this purpose.
3.5 Section 201 — Failure to deduct tax at source:
U/s.201, a person can be deemed to be an assessee in default in respect of non/short deduction of tax at source. The AO can pass order for this purpose within a period of four years from the end of the financial year in a case where no returns for tax deducted at source have been filed. Section 201 is amended with retrospective effect from 1st April, 2010, to extend the time limit for passing the order u/s.201(1) for non/short deduction of tax from 4 years to 6 years from the end of the F.Y. in which payment is made or credit is given.
3.6 Section 206C — Tax Collection at Source (TCS):
This section provides for collection of tax at source from sale of alcoholic liquor, tendu leaves, timber, forest products, scrap, etc. at the rates ranging from 1% to 5% of the sale price. The scope of this provision for TCS is extended w.e.f. 1-7-2012 as under.
i) In respect of sale of minerals, being coal or lignite or iron ore, tax is to be collected by the seller at the rate of 1% of the sale price.
ii) However, such tax is not to be collected if the purchase of such goods listed in section 206C(i) is made by the buyer for the purpose of manufacturing, processing or producing articles or things or for the purposes of generation of power. For this purpose the buyer of such goods has to give a declaration in Form No. 37C.
iii) In order to reduce the quantum of cash trans-actions in bullion or jewellery sector and for curbing the flow of unaccounted money in the trading system, it is now provided that the seller of bullion or jewellery shall collect from the buyer tax at the rate of 1% of the sale consideration. For this purpose it is provided that the collection of the above tax of 1% shall be made if the sale price in cash exceeds the following amounts:
a. For bullion, if the sale price exceeds Rs.2 lac. It may be noted that for this purpose definition of ‘Bullion’ does not include coin or any other article weighing ten grams or less.
b. For jewellery, if the sale price exceeds Rs.5 lac.
iii) It may be noted that this tax will be collected from the buyer even if the buyer has purchased bullion or jewellery for personal use or for manufacture or processing the same for his business. Further, it appears that persons who purchase bullion or jewellery for personal use will not be able to get credit for the tax collected at source because there will be no corresponding income from sale of bul-lion or jewellery in respect of which such credit for tax can be claimed. Further, the person making such payment for purchase of bullion or jewellery in cash will have to prove the source from which such cash is paid.
iv) There are certain consequential amendments made in section 206C on the same lines as in section 201 . According to these amendments, if the seller, who is required to collect tax under this section fails to do so, he will not be deemed to be in default if he can establish that the buyer has filed his return u/s.139 and paid tax on his income after considering the goods purchased by him. Consequential provision for reduction in the period for which interest is payable u/s.206C is also made.
3.7 No Advance tax payable by senior citizens u/s.207:
This section provides for payment of Advance Tax in instalments. It is now provided, w.e.f. 1-4- 2012, that a senior citizen who has no income from business or profession will not be required to pay any Advance Tax.
4. Exemptions and deductions:
4.1 Charitable trust:
Section 2(15) provides that if the object of advancement of general public utility involves carrying on of any activity in the nature of trade, commerce or business, etc. and the aggregate value of the receipts from such activity exceeds Rs.25 lac, the trust will not be considered as charitable trust. New s.s (8) has been inserted in section 13 and a proviso has been added in section 10(23C), with retrospective effect from A.Y. 2009- 10, to provide that the trust or institution will not be granted exemption only for the year in which such receipts exceed Rs.25 lac. Such loss of exemption in that year will not affect the registration of the trust or institution u/s.12AA. The exemption can be claimed in subsequent years when such receipts do not exceed Rs.25 lac.
4.2 Section 10(10D) — Deduction of life insurance premium:
At present, any sum received under a life insurance policy, including bonus, but excluding amount re-ceived under Keyman Insurance policy, is exempt, provided the premium amount does not exceed 20% of the actual capital sum assured in any year during the policy period. Now, this limit is reduced to 10% in the case of an insurance policy issued on or after 1st April, 2012. Similar amendment is made u/s.80C, whereby it is provided that deduction in respect of life insurance premium, etc. in the case of insurance policies issued on or after 1st April, 2012 shall be avail-able only in respect of premium not exceeding 10% of the actual capital sum assured. It may be noted that in respect of life insurance premium paid on policies issued before 31-3-2012, the old limit of 20% of actual capital sum assured will apply.
‘Actual capital sum assured’ is also defined to mean the minimum amount assured under the policy on happening of the specified event at any time during the term of the policy, and excluding the value of any premiums agreed to be returned and benefit of bonus or otherwise over and above the sum actually assured. This is done to ensure that life insurance products are not designed to circumvent the prescribed limit by varying the capital sum as-sured from year to year. This amendment comes into force from A.Y. 2013-14 (Accounting Year end-ing on 31-3-2013).
4.3 Section 10(23FB) — Venture Capital Company (VCC) and Venture Capital Funds (VCF):
i) This section has been amended w.e.f. A.Y. 2013-14. Simultaneously, section 115U has also been amended. Section 10(23FB) provides that a VCC or VCF registered with SEBI and deriving income from investment in a Venture Capital Undertaking (VCU) is exempt from tax. VCU is presently defined to mean such domestic company whose shares are not listed in a recognised stock exchange in India and which is engaged in any one of the nine specified businesses. VCC and VCF registered with SEBI are granted a pass-through status and the income in the hands of the investor is taxed in the like manner and to the same extent as if the investment was directly made by the investor in the VCU.
ii) The sectoral restriction that the VCU should be engaged in only the nine specified businesses is now removed. The definition of VCU is now amended to cover any undertaking referred to in SEBI (Venture Capital Funds) Regulations, 1996. As such VCC and VCF will be exempt from tax, irrespective of the nature of business carried out by the VCU, as long as it satisfies the conditions imposed by SEBI.
iii) At present, the income received by any VCC/ VCF from VCU, is taxed on receipt basis in the hands of the investor and hence could result in deferral of taxation till the income is distributed to the investor. It is now provided that the income accruing to VCC/ VCF will be taxable in the hands of the investor on accrual basis.
4.4 Section 10(23BBH):
This new section is inserted w.e.f. 1-4-2013 to pro-vide for exemption from tax in the case of income of the Prasar Bharati (Broadcasting Corporation of India) from A.Y. 2013-14.
4.5 Section 10(48):
This is a new provision made w.e.f. A.Y. 2012-13 (1-4-2011 to 31-3-2012). This section provides for exemption in respect of any income of a foreign company received in India, in Indian currency, on account of sale of crude oil to any person in India. This is subject to the conditions that (i) the receipt of money is under an agreement which is entered into by the Central Government or approved by it the foreign company, and the arrangement or agreement has been notified by the Central Govern-ment and (iii) the receipt of the money is the only activity carried out by the foreign company in India. This provision is introduced in view of the mecha-nism devised by the Government to make payment to certain foreign companies in Indian currency for import of crude oil (e.g., from Iran).
4.6 Section 40(a)(ia):
This section provides for disallowance of payment to a resident if tax required to be deducted there from has not been deducted by the assessee. By amendment of this section it is provided that if the assessee establishes that the resident payee (de-ductee) has paid tax on this income before furnish-ing his return of income, the expenditure shall not be disallowed under this section. This amendment is made from A.Y. 2013-14 (Accounting Year 2012-13). Consequential amendment is made in section 201 to provide, w.e.f. 1-7-2012, that the payer shall not be deemed to be in default if he can prove that the payee has furnished his return u/s.139 and paid tax on such amount. However, the payer will have to pay interest from the due date till the date of filing return by the payee. This being a beneficial provision, it should be made applicable to earlier years also. This will reduce litigation on this issue. It will be pos-sible to argue that the above beneficial amendment will have retrospective effect in view of decision of CIT v. Virgin Creations, ITA No. 302 of 2011 (Calcutta High Court) in respect of similar amendment in the section by the Finance Act, 2010.
4.7 Section 80C:
As discussed in Para 4.2 above, section 80C is amended to provide that the deduction of LIP in respect of life policy taken out on or after 1-4-2012 shall be restricted to 10% of the capital value assured.
4.8 Section 80CCG:
This is a new section inserted w.e.f. A.Y. 2013-14 (Accounting Year 1-4-2012 to 31-3-2013) and provides as under:
i) The deduction under this section can be claimed by an Individual who is a resident, if he acquires listed equity shares in accordance with the scheme to be notified by the Government. The assessee will be allowed deduction of 50% of the amount invested subject to the limit of deduction of Rs.25,000 in the computation of income for the year of investment. It may be noted that this deduction is not allowable to an HUF.
ii) The above deduction is subject to the following conditions:
a) The gross total income of the assessee for the relevant assessment year should not exceed Rs.10 lac.
b) The assessee should make the above investment in retail category specified in the scheme.
c) The above investment should be in listed equity shares as specified under the scheme.
d) There will be locking period of 3 years for such investment.
iii) If the assessee fails to comply with any of the above conditions in any year, the amount of deduction allowed in earlier years will be taxable in that year.
4.9 Section 80D:
Under this section deduction up to Rs.15,000 is allowed to an assessee (individual or HUF) for premium paid on mediclaim insurance policy. For senior citizens the limit for deduction is Rs.20,000. Now it is provided that, effective from Accounting Year 2012-13, if the assessee makes payment up to Rs.5,000 in a year for preventive health check-up, deduction will be allowed within the above ceiling limit. Further, age limit for senior citizens is reduced from 65 years to 60 years. It is suggested that this deduction upto Rs.5,000 should have been allowed over and above the existing ceiling limit of Rs.15,000 or Rs.20,000. The limits of Rs.15,000/20,000 were fixed in the year 2000 and deserve to be enhanced due to increase in medical cost and consequential increase in insurance premium.
4.10 Sections 80G and 80GGA:
Deduction for donation of Rs.10000 or more under these sections will not be allowed if the same is paid in cash. This provision will apply to donations made in the Accounting Year 2012-13 onwards.
4.11 Section 80IA(4)(iv):
Under this section an industrial undertaking engaged in the business of generation and distribution of power and allied activities is entitled to tax holiday for 10 years if such undertaking begins its activities on or before 31-3-2012. This date is now extended to 31-3-2013.
4.12 Interest from bank exempt u/s.80TTA:
This is a new section which has been introduced effective from A.Y. 2013-14 (accounting year ending 31-3-2013). Under this section, in the case an individual or HUF, interest from savings bank account with a bank, co- operative bank or post office bank up to Rs.10000 will not be taxable. This provision will not apply to interest on fixed deposit with banks.
4.13 Section 115-O:
At present, dividend distributed by a company out of the dividend received from its subsidiary company, which has paid Dividend Distribution Tax, is not liable to Dividend Distribution Tax once again. For this purpose, the dividend receiving company should not be a subsidiary of any other company. By amendment of this section, effective from 1-7-2012, the condition that “the company is not a subsidiary of any other company” has now been removed. Therefore, any domestic company (whether it is a holding company or a subsidiary company) receiving dividend from its subsidiary or step down subsidiary company and declaring dividend in the same year out of such dividend amount will be allowed to reduce the amount of such dividend for determining the liability to Dividend Distribution Tax if the subsidiary or step down subsidiary company has paid Dividend Distribution Tax that is payable.
5. Income from business or profession:
5.1 Section 32(1)(iia):
At present, an assessee engaged in the business of manufacture or production of any article or thing is entitled to additional depreciation of 20% of the cost of the new plant and machinery in the year of acquisition. From A.Y. 2013-14, this benefit is now extended to an assessee engaged in the business of generation or generation and distribution of power.
5.2 Section 35(2AB):
According to the existing provisions of section 35 (2AB) weighted deduction at 200% of expenditure on approved in-house research and development by a company engaged in the business of biotechnology or in the manufacture of specified articles is allow-able up to 31-3-2012. This benefit is now extended up to 31-3-2017.
5.3 Section 35AD:
i) Investment-linked deduction of 100% of capital expenditure (excluding expenditure incurred for land, goodwill or financial instrument) is allowed for certain specified businesses. In the list of specified businesses, there are at present 8 types of businesses. With effect from 1-4-2012, 3 new businesses have been added to this list. These 3 businesses re-late to setting up and operating (a) inland container depot, or container freight station, (b) warehousing facility for storage of sugar and (c) bee-keeping and production of honey beeswax which commence operations on or after 1-4-2012.
ii) Further, the above investment-linked deduction is now enhanced to 150% of the capital expenditure incurred on or after 1st April, 2012 in respect of certain specified businesses which commence operations on or after 1-4-2012. These specified businesses are setting up and operating (a) cold-chain facility warehousing facility for agricultural produce, (c) building and operating a hospital with at least 100 beds, (d) developing and building affordable housing project and (e) production of fertiliser in India.
iii) Further, it is provided that an assessee who builds a hotel of two-star or above category as classified by the Central Government and subsequently, continuing to own the hotel, transfers the operation thereof, the assessee shall be deemed to be engaged in specified business and will be eligible to claim deduction u/s.35AD. This amendment has been made with effect from A.Y. 2011-12.
5.4 New sections 35CCC and 35CCD:
These two new sections are inserted effective from A.Y. 2013-14. They provide as under:
i. Section 35CCC provides that when an assessee incurs any capital or revenue expenditure for agricultural extension project notified by the CBDT, he will be allowed deduction of 150% of such expenditure.
ii. Section 35CCD provides that where a company incurs expenditure (other than expenditure on any land or building) on any skill development project notified by the CBDT, it will be allowed deduction of 150% of such expenditure.
5.5 Presumptive taxation:
Section 44AD provides for presumptive taxation in respect of non-corporate assessees carrying on specified businesses and having a total turnover of less than Rs.60 lac. Under this section 8% of the total turnover is deemed to be the income from business subject to certain conditions. It is now provided that this section will not apply to a person having income from (i) a profession, (ii) commission or brokerage or (iii) any agency business. This amendment is made effective A.Y. 2011-12. Further, the limit of Rs.60 lac for total turnover is increased to Rs.1 crore w.e.f. A.Y. 2013-14 (Accounting Year 2012-13).
5.6 Section 44AB:
The limit of turnover/gross receipts for tax audit u/s.44AB has also been increased for business to Rs.1 Cr. And for profession to Rs.25 lac w.e.f. A.Y. 2013-14 as discussed in Para 17.2 below:
6. Capital gains:
6.1 Section 47(vii):
This section is amended w.e.f. A.Y. 2013-14. It is now provided that when a subsidiary company amalgamates with a holding company, the requirement of the issue of shares of the amalgamated company on amalgamation will not apply.
6.2 Section 49:
At present, there is no provision to treat the cost of assets of a proprietary concern, converted into a company, or a firm converted into a company as the cost of the assets in the case of the company. It is now provided, w.e.f. A.Y. 1999 -2000, that the cost of assets on conversion of a proprietary concern or a firm into a company u/s.47(xiii), or 47 (xiv), in the hands of the company shall be the same as in the hands of the converting enterprise. Similarly, when an unlisted company is converted into LLP u/s.47(xiiib), the cost assets in the case of the company shall be treated as cost in the case of the LLP.
6.3 Section 50D:
This is a new section inserted w.e.f. A.Y. 2013-14. It provides that where the consideration received or accrued for transfer of a capital asset is not ascertainable or cannot be determined, then the fair market value of the said asset shall be deemed to be the full value of the consideration on the date of transfer for computing the capital gain. This situation may arise in a case where the capital asset is transferred in exchange of another capital asset.
6.4 Section 54B:
At present, the benefit of exemption from capital gain on sale of agricultural land is available to the assessee on reinvestment of such capital gain for purchase of another new agricultural land within two years. One of the conditions is that the land should have been used by the assessee or his parent for agricultural purposes. This provision is amended, w.e.f. A.Y. 2013-14, to provide that even if such land was used by the HUF, in which the as-sessee or his parent was a member, this exemption can be claimed.
6.5 Section 54GB:
This is a new section which is inserted w.e.f. A.Y. 2013-14 to provide that if an Individual or HUF makes capital gains on sale of a residential house or plot, he can claim exemption from Capital Gains Tax if he invests the net consideration in equity shares of a new SME company. Such SME company is required to invest this amount in purchase of new plant and machinery. This exemption can be claimed subject to the following conditions.
i) The investee company should qualify as a small or medium enterprise under the Micro, Small and Medium Enterprises Act, 2006. (SME).
ii) The company should be engaged in the business of manufacture of an article or a thing.
iii) SME company should be incorporated within the period from 1st of April of the year in which capital gain arises to the assessee and before the due date for filing the return by the assessee u/s.139(1).
iv) The assessee should hold more than 50% of the share capital or the voting right after the subscription in the shares of a SME company.
v) The assessee will not be able to transfer the above shares for a period of 5 years.
vi) The company will have to utilise the amount invested by the assessee in the purchase of new plant and machinery. If the entire amount is not so invested before the due date of filing the return of income by the assessee u/s.139, then the company will have to deposit the amount in the scheme to be notified by the Central Government.
vii) The above new plant and machinery acquired by the company cannot be sold for a period of 5 years.
viii) The above scheme of exemption granted in respect of capital gains on sale of residential property will remain in force up to 31-3-2017.
The above conditions prescribed in the new section are very harsh. This section should have allowed the investment in existing SME company for the purpose of exemption. Further, investment in LLP, which satisfies the condition of SME enterprises, should also be permitted. The restricted time limit for acquiring new plant and machinery will create difficulties and, therefore, it should have been provided that the SME company should be allowed to make such investment in new plant and machinery within a period of 18 months from the date on which the assessee makes the investment in its equity shares. The period of 5 years for retaining the equity shares is too long and should have been reduced to 3 years. Similarly, lock-in-period for plant and machinery acquired by the SME company should be reduced from 5 years to 3 years.
6.6 Section 55A — Reference to Valuation Officer:
This section is amended w.e.f. 1-7-2012. Under this section, the AO can make a reference to the Valuation Officer with a view to ascertain the fair market value of the capital asset. At present, such reference can be made when the AO is of the view that the value disclosed by the assessee is less than the fair market value. In some cases it is held that when the assessee exercises his option to substitute fair market value of the capital asset as on 1-4-1981, for the cost of the asset, and if the AO is of the view that such market value as declared by the assessee was more, he cannot make a reference to the Valuation Officer. To overcome this position, this amendment provides that w.e.f. 1-7-2012 the AO can make such reference to the Valuation Officer. This amended provision will apply w.e.f. 1 -7-2012 but will have retroactive effect, inasmuch as, the AO can make such a reference to the Valuation Officer in respect of all pending assessments of earlier years.
6.7 Securities Transaction Tax (STT):
i) Section 98 of the Finance (No. 2) Act, 2004, providing for rates of STT has been amended w.e.f. 1-7-2012. The revised rates of STT in Cash Delivery Segment are reduced from 0.125% to 0.1%. Therefore, in the case of delivery-based transaction relating to equity shares of a company or units of equity ori-ented fund of a mutual fund entered into through a recognised Stock Exchange, the STT payable by a purchaser is reduced from 0.125% to 0.1% and a seller is reduced from 0.125% to 0.1% w.e.f. 1-7-2012.
ii) In order to encourage unlisted companies to get them listed in recognised Stock Exchange, it is now provided that sale of unlisted equity shares by any holder of such shares, under an offer for sale to the public included in an Initial Public Offer (IPO), if subsequently such shares are listed on the recognised Stock Exchange, will be liable for pay-ment of STT at 0.2%. If such STT is paid, long-term capital gain on such sales will be exempt from tax and tax on short-term capital gain will be payable at concessional rate of 15% u/s.111A.
7. Income from other sources:
7.1 Section 56(2)(vii):
Under this section any gift exceeding Rs.50,000 in any year received by an Individual or HUF on or after 1-10-2009 is taxable as income from other sources, subject to certain exceptions. One of the exceptions is about gift received from relatives of the individual as defined. Similar exemption is not given in respect of gifts from members of HUF. It is now provided, w.e.f. 1-10-2009, that gifts received by HUF from its members will be exempt. However, if such a gift is given by a member to such HUF, income from the property gifted will be clubbed with the income of the member u/s.64(2). In order to mitigate hardship experienced in practical life it is suggested that the following relationship should have been covered in the definition of relatives.
i. Gifts by HUF to its members
ii. Gifts to an Individual by any lineal descendant of a brother or sister of the Individual or his/ her spouse (i.e., gift by a nephew or niece to an uncle or aunt). Similar provision is made in section 314(214)(h) of DTC Bill, 2010.
7.2 Section 56(2)(viib):
This is a new provision inserted from the A.Y. 2013-14. It is now provided that where a closely held company issues shares to a resident, for amount received in excess of the fair market value of the shares, it will be deemed to be the income of the company under the head ‘Income from other Sources’. The fair market value for this purpose is the higher of the value arrived at on the basis of the method to be prescribed or the value as substantiated by the company to the satisfaction of the Assessing Officer. The company can substantiate the value based on the value of the tangible and intangible assets and various types of commercial rights as stated in the section.
This provision will not apply to amounts received by a venture capital undertaking from a venture capital fund or a venture capital company. Further, this provision will not apply to amount received from non-resident, a foreign company or from a class of persons as may be notified by the Government. The provision appears to have been made with a view to ensure that excessive amount, representing revenue payment, is not received in the form of share premium and does not escape taxation.
7.3 Section 68:
This section deals with taxation of cash credits. The section is amended w.e.f. A.Y. 2013-14. This section now provides that in the case of a closely held company, if the amount credited in the name of a resident is by way of share application money, share capital, share premium or any such amount, by whatever name called, and the explanation offered for the credit is not considered to be satis-factory, such amount will be considered as income of the company. However, if the person (being a resident) in whose name the amount is credited offers explanation about the source and nature of the amount credited and such explanation is found to be satisfactory by the Assessing Officer this Section shall not apply. In the event of failure to do so, the entire amount credited will be taxed at the rate of 30% plus applicable surcharge and Education cess in the hands of the company.
This provision does not apply to amount received from a venture capital fund or a venture capital company. It will also not apply to the amount received from a non-resident or a foreign company.
7.4 Section 115BBD:
At present, this section provides that rate of tax, for dividend received by an Indian company from a foreign company in which it has share holding of 26% or more, is 15% for A.Y. 2012-13. This concession has been extended for one more year i.e., A.Y. 2013-14.
7.5 Section 115BBE:
This is a new section inserted from A.Y. 2013-14. The section provides that unexplained amounts treated as income (i) u/s.68 cash credits, (ii) u/s.69 unexplained investment, (iii) u/s.69A unexplained money, bullion, jewellery or other valuable articles, u/s.69B amount of investments, expenditure on jewellery, bullion or other valuable articles not fully disclosed in books, (v) u/s.69C — Unexplained expenditure, and (vi) u/s.69D — Amount borrowed or repaid on a Hundi in cash, will now be taxed at a flat rate of 30% plus applicable surcharge and education cess. No deduction for any expenditure or allowance will be allowed against such income.
8. Minimum Alternate Tax (MAT) (section 115JB):
8.1 Section 115JB is amended w.e.f. 1-4-2001 (A.Y. 2001-02) to provide that in the case of the income arising from life insurance business the tax under this section will not be payable. In other words, MAT provisions will not apply from A.Y. 2001-02 onwards in respect of income from life insurance business.
8.2 (i) The section is amended w.e.f. A.Y. 2013 -14 to provide that in the case of a company, such as insurance, banking, electricity company, etc., for which the Form of Profit & Loss A/c. and Balance Sheet is prescribed in the Act governing such com-panies, the book profit shall be determined on the basis of the Form of Profit & Loss A/c. prescribed under that Act. Further, it is provided that in respect of companies to which the Companies Act applies, the book profit will be computed on the basis of the revised format of Schedule VI.
ii) By another amendment of this section effective from A.Y. 2013-14, it is now provided that the book profit will be increased by the amount standing to the credit of revaluation reserve relating to reval-ued asset which has been discarded or disposed of, if the same is not credited to the Profit & Los A/c. This amendment is in order to cover cases in which revaluation reserve is directly transferred to general reserve on disposal of asset resulting in the gain that is not being included in the computation of book profits up to now.
9. Alternate Minimum Tax (AMT)
9.1 Sections 115JC to 115JE for levy of AMT on ad-justed total income of LLP have now been extended to other non-corporate assessees such as individual, HUF, AOP, BOI, Firm, etc. w.e.f. A.Y. 2013-14. New section 115JEE has also been added from A.Y. 2013-14.
9.2 Provision for AMT was made last year for income of LLP w.e.f. A.Y. 2012- 13 in sections 115JC to 115JE. Now section 115JC is replaced by a new section and other sections 115JD to 115JE have been amended w.e.f. A.Y. 2013-14. A new section 115JEE is also inserted. The effect of these amendments is as under.
i) The provisions of section 115JC will now apply to LLP and all other non-corporate assessees i.e., individual, HUF, AOP, BOI, Firm, etc. As provided in section 115JC the assessees will have to obtain audit report in the prescribed form before the due date.
ii) In the case of an individual, HUF, AOP, BOI or Artificial Juridical person, AMT will not be payable if the adjusted total income does not exceed Rs.20 lac. (section 115JEE)
iii) AMT is payable at 18.5% plus applicable surcharge and education cess of the adjusted total income if the amount of such tax is more than the tax payable on the total income computed under other provisions of the Income-tax Act.
iv) Adjusted total income is defined to mean the total income computed under the Income-tax Act increased by (a) deductions claimed under Chapter VIA (section C) i.e., 80HH to 80 RRB (other than section 80P) and (b) deduction claimed u/s.10AA (SEZ income).
v) Other provisions of sections (a) section 115JD for tax credit for AMT paid for 10 years, (b) Section 115JE applicability of other sections of the Income-tax Act and (c) Section 115JF— Definitions will continue to apply to LLP and also to other non-corporate assessees to whom sections 115JC and 115JEE for payment of AMT apply.
10. Specified domestic transactions:
Section 40A(2) of the Income-tax Act empowers the AO to disallow payment to a related person for expenditure, if he considers that such expenditure is excessive or unreasonable, having regard to the fair market value of the goods, services or facilities for which such payment is made and claimed as a deduction in the computation of income. Similarly, sections 10AA, 80A, 80IA, 80IB, etc. provide that if there are any transactions of purchases, sales, etc. between two related persons, the AO can ap-ply the test of fair market value and make adjust-ments in the computation of income. In all these sections, the concept of ‘fair market value’ has not been specifically explained. Therefore, the Supreme Court in the case of CIT v. Glaxo Smithkline Asia (P) Ltd., 195 Taxman 35 (SC) observed that in order to reduce litigation, sections 40A(2) and 80IA(10) need to be amended to empower the AO to make adjustments to the income declared by the assessee, having regard to the market value of the transac-tions between related parties, by applying any of the generally accepted methods for determination of Arm’s- Length Price (ALP), including methods provided under Transfer Pricing Regulations. In view of the above, amendments are made in sec-tions 40A(2), 10AA, 80A and 80IA to provide that the ‘Specified domestic transactions’ will now be subject to Transfer Pricing Regulations contained in sections 92, 92BA to 92F — from A.Y. 2013-14 (Accounting Year 1-4-2012 to 31-3-2013). In brief, the effect of these provisions, from A.Y. 2013-14 (1-4-2012 to 31-3-2013) onwards will be as under.
10.1 The term ‘specified domestic transaction’ is defined in new section 92BA to mean the following transactions, other than the international transactions:
a) Any expenditure in respect of which payment has been made or to be made to a person referred to in section 40A(2)(b). This will include remuneration, commission, rent, interest, etc. paid to a related person as well as purchases made from such person.
b) Any transaction referred to in section 80A.
c) Any transfer of goods or services referred to in section 80IA(8).
d) Any business transacted between the assessee and other person as referred to in section 80IA(10).
e) Any transaction, referred to in any other section under Chapter VI-A or section 10AA, to which provisions of sections 80IA(8) or 80IA (10) are applicable.
f) Any other transaction as may be prescribed by Rules by the CBDT.
10.2 It is also provided that the Transfer Pricing provisions will not apply if the aggregate amount relating to the above transactions entered into by the assessee, in the relevant accounting year, does not exceed Rs.5 crore. It is not clear from the word-ing of the above section whether such aggregate amount is to be worked out by considering the amount of expenditure, purchases, sales, etc. under all the above sections taken together or whether the aggregate amount under each section i.e., 40A(2), 80A, 80IA, 10AA, etc. is to be separately worked out in order to determine the limit of Rs.5 crore provided in the section.
10.3 Section 40A(2):
This section provides for disallowance of revenue expenditure incurred by the assessee. The section does not apply to any revenue or capital receipt or to capital expenditure. Further, the section does not apply to any revenue expenditure which is capita-lised. Under this section, if any payment is made or to be made for any revenue expenditure to any ‘Related Person’, the AO can disallow that part of the expenditure which he considers to be excessive or unreasonable, having regard to the fair market value of the goods, services or facilities for which such payment is made and claimed as a deduction in computing the income. This section applies to the computation of ‘Income from Business or Profession’ and ‘Income from other Sources’. This section is now amended to provide that the fair market value for any payment to which the concept of specified domestic transaction applies shall be determined on the basis of arm’s-length price concept as provided in sections 92C and 92F(ii).
10.4 Section 80A:
Section 80A(6) refers to transfer of any goods or services held for the purposes of the undertaking, unit, enterprise, or eligible business to any other business carried on by the assessee. It also refers to transfer of goods or services held for the pur-poses of any other business of the assessee to the undertaking, unit, enterprise or eligible business. If the consideration for such transfer is not at the market value, then the AO can substitute the market value of the goods or services for such transfer. The expression ‘Market Value’ is defined in the Explanation to mean the price that such goods or services would fetch, if they were sold in the open market, subject to statutory or regulatory restrictions. This Explanation is now amended w.e.f. A.Y. 2013-14 to provide that the expression ‘Market Value’ in relation to specified domestic transactions shall now mean, in relation to any goods or services sold, supplied or acquired, the ‘Arm’s-length price’ as defined in section 92F(ii). It may be noted that this section applies to transfer of goods or services from one undertaking, unit or business owned by the assessee to another undertaking, unit or business owned by the same assessee.
10.5 Section 80IA:
S.s (8) and s.s (10) of this section are amended w.e.f. A.Y. 2013-14 as under.
i) Section 80IA(8):
This provision refers to transfer of goods or services held for the purposes of the eligible business to any other business of the assessee. The section also refers to transfer of goods or services from any other business of the assessee to any eligible business. For this purpose, the expression ‘eligible business’ means business carried on by any indus-trial undertaking owned by the assessee carrying on business of infrastructure development, generation of power, telecommunication services, etc. as listed in section 80IA(4), for which 100% deduction is given u/s.80IA. Section 80IA(8) provides that transfer of goods or services between eligible business under-taking and other undertakings of the assessee shall be at market value. Now, it is provided that such transfers should be made at arm’s-length price as defined by the provisions of section 92F(ii).
ii) Section 80IA(10):
This section provides that where it appears to the AO that, owing to the close connection between the assessee carrying on the eligible business and any other person, the course of business between them is so arranged that the profits of the eligible business for which 100% deduction is allowed u/s.80IA is shown at a figure higher than the ordinary profits in such business, the AO can recompute the profits of the eligible business for deduction u/s.80IA. The section is now amended to provide that, if the above arrangement between closely related parties involves specified domestic transactions, the AO shall compute the profit of the eligible business having regard to the arm’s-length price concept as defined in section 92F(ii).
iii) Other sections:
It may be noted that the provisions of section 80IA(8) and 80IA(10) apply to certain other sections of the Income-tax Act also. These sections provide for deduction of income derived from various specified activities. In respect of transactions with related parties for claiming deduction from income, the above concept of arm’s-length price as applicable to specified domestic transactions will apply.
10.6 Since the concept of arm’s-length price is now extended to section 80IA(8) and 80IA(10), this concept will apply to transactions between related parties in computing income under the following sections:
Section 10AA: Income from newly established units in SEZ.
Section 80IB: Income from certain industrial undertakings and housing projects, etc. (other than infrastructure development undertakings).
Section 80IC: Income from certain undertakings set up in certain States such as Sikkim, Himachal Pradesh, Uttarakhand, North-Eastern States, etc.
Section 80ID: Income from hotels and convention centres set up in National Capital Territory of Delhi, and Districts of Faridabad, Gurgaon, Gautam Buddhha Nagar and Ghaziabad and other specified districts having ‘World Heritage
Site’.
Section 80IE: Income from eligible business undertakings in North-Eastern States.
10.7 Other transactions:
The CBDT has been given power to prescribe, by Rules, other domestic transactions to which the above provisions will apply.
10.8 Effect of application of arm’s-length price concept:
As stated above, the concept of arm’s-length price (ALP) is now to be applied to certain domestic trans-actions. In view of this, the assessee who enters into specified domestic transactions will have to comply with the following sections w.e.f. A.Y. 2013-14.
i) Section 92: This section deals with computation of income from international transactions. It is now extended, w.e.f. A.Y. 2013-14, to specified domestic transactions. Therefore, the concept of ALP which was applicable to international transactions up to now will now apply to specified domestic transactions also. S.s (2A) inserted in this section now provides that any allowance for an expenditure or interest or allocation of any cost, expense or income in relation to specified domestic transactions shall be computed having regard to the ALP.
ii) Section 92C: This section deals with computa-tion of ALP in relation to international transactions. As stated above, this concept is now extended to specified domestic transactions. The section pro-vides for six alternate methods for determination of ALP.
iii) Section 92CA: This section provides for reference by AO to the Transfer Pricing Officer (TPO). Such reference is to be made if the aggregate value of international transactions exceed Rs.5 cr. The TPO is given wide powers. The order passed by the TPO is binding on the AO and the AO has to complete the assessment in conformity with the order of the TPO. This section has now been amended and it is now provided that such reference is to be made by the AO to the TPO even in cases where the assessee has entered into specified domestic transactions. Since section 92BA states that transactions with related parties aggregating Rs.5 Cr. or more will be considered as specified domestic transactions, all cases in which these transactions are involved will have to be referred to the TPO.
iv) Section 92D: This section provides for maintenance and keeping of information and documents by persons entering into international transactions. This section is made applicable to specified domestic transactions. Therefore, all assessees who enter into specified domestic transactions, as stated above, will have to maintain the information and documents specified in this section. It may be noted that these records and documents will have to be maintained w.e.f. 1-4-2012, in the manner prescribed in Rule 10D.
v) Section 92E: This section requires that an as-sessee entering into international transactions has to obtain report from a Chartered Accountant in the prescribed form No. 3CEB before the due date for filing the return of income. This requirement is now extended to specified domestic transactions from the A.Y. 2013-14 (Accounting Year 1-4-2012 to 31-3-2013).
vi) Section 92F: This section gives definition of certain terms. The following definitions are relevant in the context of specified domestic transactions.
a. ‘Arm’s-length price’: This term means a price which is applied or proposed to be applied in a transaction between persons other than associated enterprises, in uncontrolled conditions.
b. ‘Transaction’: This term includes an arrangement, understanding or action in concert, whether or not it is formal or in writing or whether or not it is intended to be enforceable by legal proceedings.
vii) Penalty u/s.271 and 271AA: By amendment of Explanation 7 of section 271, it is now provided that penalty under that section will be leviable in respect of amount disallowed out of the above specified domestic transactions u/s.92C(4). Similarly, penalt 2% of the amount can also be levied u/s.271AA for not maintaining records u/s.92D or not reporting such transactions u/s.92E or furnishing incorrect information.
11. Taxation of non-residents:
Some of the sections dealing with taxation of non-residents have been amended with retrospective effect. These amendments will have far reaching effect. While presenting the Budget the Finance Minister has not made any mention about these far -reaching changes affecting non-residents in his Budget Speech. However, in the Explanatory Memorandum attached to the Finance Bill, 2012, the reasons for these retrospective amendments have been explained.
The effect of these amendments with retrospective effect will be that cases of many assesses may be reopened and they may be required to pay tax, interest or penalty for last 16 years. It appears that these amendments provide for taxing gain on sale of shares in foreign countries and therefore, the time limit of 16 years for reopening the assessments will apply to such transactions. It is, therefore, necessary that a specific provision should have been made that no interest or penalty will be payable if tax levied as a result this retrospective amendment is paid by the assessee. It may be noted that when sections 28 and 80HHC were amended by the Taxation Laws (amendment) Act, 2005, with retrospective effect, CBDT issued a Circular No. 2/2005 on 17-1-2006. In this Circular the tax authorities were directed not to levy any interest or penalty if tax levied due to these retrospective amendments was paid. The Circular also provided that the tax due as a result of the retrospective amendment can be paid in five equal yearly instalments. No interest was payable on such instalments. Let us hope that the CBDT issues similar Circular in respect of the tax payable as a result of these retrospective amendments made by the Finance Act, 2012.
11.3 Section 2(14):
This section defines that term ‘Capital asset’ to mean ‘Property’ of any kind held by an assessee, whether or not connected with his business or profession. However, assets in the nature of stock-in-trade, personal effects, agricultural land, etc. are excluded from this definition. Now, Explanation has been added w.e.f. 1-4-1962 to clarify that ‘property’ shall include and shall be deemed to have always included any rights in or in relation to an Indian company, including right of management or control or any other rights. This will mean that the term, ‘Capital asset’ shall now include a tangible as well as intangible property.
11.4 Section 2(47):
This section defines the word ‘Transfer’ in relation to a capital asset. This is an inclusive definition and includes transfer of a capital asset by way of sale, exchange, relinquishment, or extinguishment of rights in the asset, compulsory acquisition of the asset, etc. Now a new Explanation is added w.e.f. 1-4-1962 to clarify that the word ‘Transfer’ shall include, and shall be deemed to have always included, disposing of, parting with an asset or any interest therein, or creating any interest in any asset, directly, indirectly, absolutely, conditionally, voluntarily or involuntarily. Such transfer may be by agreement made in India or outside India. This is irrespective of the fact that such transfer has been characterised as being effected, dependent upon or following from the transfer of shares of an Indian or foreign company. This will show that if any interest is created in the shares of an Indian or foreign company by agreement or even an action, it will be considered as a ‘transfer’ of capital asset u/s.2(47).
11.5 Section 9:
This section explains when income is deemed to ac-crue or arise in India in the case of a non-resident. The scope of this section is widened by addition of Explanation 4 and 5 below section 9(1)(i) w.e.f. 1-4-1962 as under:
i) In section 9(1)(i) it is stated that any income shall be deemed to accrue or arise if it accrues or arises, directly or indirectly ‘Through’ or ‘From’ (a) any business connection in India, (b) any property in India (c) any asset or source of Income in India or (d) the transfer of a capital asset situated in India. Now, it is clarified in Explanation 4 that the word ‘Through’ in the above section shall mean and include (w.e.f. 1-4 -1962) — ‘by means of’, ‘in consequence of’ or ‘by reason of’. This explanation appears to have been introduced with retrospective effect to counter the decision of the Supreme Court in ‘Vodafone’ case which was against the Income-tax Department.
ii) Similarly, Explanation 5 clarifies with retrospective effect from 1-4-1962 that an asset or capital asset being any share or interest in a foreign company shall be deemed to be situated in India if such share or interest derives, directly or indirectly, its value substantially from the assets located in India. It may be noted that the concept of holding interest in substantial value of assets located in India has not been explained or defined in this Explanation. This concept is explained in various other sections in the Income tax in different manner. This will be evident from reference to substantial interest in the following sections.
a. Section 2(32): While defining ‘person having substantial interest in the company’ it is stated that if a person holds 20% or more of voting power it is considered as substantial interest.
b. Section 40A(2): Under this section the provisions of transfer pricing are now made applicable in respect of domestic transactions. In the definition of related party, the concept of substantial interest in a company is to be determined by applying the test of 20% or more voting power.
c. Section 79: For carry forward and set-off of losses of a closely held company, the concept of holding at least 50% holding of shares by shareholders who were shareholders on the last day of the year in which loss was incurred has been provided.
In view of the above, for determination of the tax liability on transfer of shares in a foreign company the concept of holding substantial interest in the value of assets located in India should have been clearly defined. Further, the section refers to share on interest in a foreign company which derives (directly or indirectly) its value substantially from the assets located in India. The word ‘value’ is also required to be defined otherwise there will be confusion as to whether the word ‘value’ refers to ‘book value’ or ‘market value’.
11.6 Section 9(1)(vi) — Royalty:
This Section provides that income by way of royalty earned by a non-resident is deemed to be income accruing or arising in India under the circumstances explained in this section. The concept of royalty for this purpose is now expanded, with retrospective effect from 1-6-1976 as under:
i) New Explanation 4 is now added to provide that the transfer of any rights in respect of any right, property or information includes all or any right for use or right to use computer software (including granting of a licence) irrespective of the medium through which such right is transferred.
ii) New Explanation 5 now provides that ‘Royalty’ includes consideration in respect of any right, prop-erty or information, whether or not (a) the posses-sion or control of such right, etc. is with the payer such right, etc. is used directly by the payer, or the location of such right, etc. is in India.
iii) New Explanation 6 now provides that the expression ‘Process’ used in section 9(1)(vi), in-cludes transmission by satellite (including up-linking, amplification, conversion for down-linking of any signal), cable, optic-fiber or by any other similar technology. This is irrespective of the fact whether such process is a secret process or otherwise. It ap-pears that this provision has been made to over rule the decision of the Delhi High Court in the case of Aasia Satellite Telecommunication Co. Ltd. v. DIT, 332 ITR 340 (Del.).
The above amendments with retrospective effect from 1-6-1976 will create lot of practical difficulties. It is possible that the Tax Department may consider part of purchase consideration for software paid to a non-resident as royalty payment. This amendment, read with amendment of section 195, with retrospective effect from 1-4-1962, will create greater hardship to tax payers, as it will be impossible to comply with TDS provisions in respect of such payments made to non-residents in earlier years. It is also possible that the AO may invoke provisions of section 40(a)(i) and disallow such payment made to non-residential and claimed as revenue expenditure by the assessee in the earlier years.
It may, however, be noted that if any such payment is made to a non- resident in a country with which there is DTAA, the provisions in DTAA, if favourable, will apply in preference to the above provision.
11.7 Sections 90 and 90A:
Section 90 empowers the Central Government to enter into agreements with any foreign country or a specified territory for Double Taxation Relief (DTAA). Section 90A empowers the Government to enter into similar agreements with certain specified/ notified association in specified territories. Both these sections are amended as under:
i) New s.s (2A) is inserted w.e.f. 1-4-2013 (A.Y. 2013-14) in section 90 to provide that the provisions of new sections 95 to 102 dealing with General Anti-Avoidance Rule (GAAR) will be applicable even if the provisions of DTAA are more favourable to the assessee. In other words, where GAAR is invoked, the assessee cannot seek protection of beneficial provisions of DTAA. Similar amendment is made in section 90A also.
ii) New s.s (4) is inserted in section 90 w.e.f. 1-4-2013 (A.Y. 2013-2014) to provide that a non-resident cannot claim benefit of DTAA unless a certificate in the Form prescribed by the CBDT is obtained from the foreign country with which the Indian Govern-ment has entered into the DTAA. In this certificate such foreign country will have to certify the place of residence of the non-resident and such other particulars which the Indian Tax Department may require to decide whether the benefit claimed under a particular DTAA is available to the non-resident assessee. Similar amendment is made in section 90A.
iii) New Explanation 3 is inserted in section 90 w.e.f. 1-10-2009 to provide that any meaning as-signed through Notification u/s.90(3) to a term used in DTAA shall be effective from the date of coming into force of the applicable DTAA. Similar amend-ment is made in section 90A w.e.f. 1-6-2006.
11.8 Section 195:
This section provides for deduction of tax at source (TDS) in the case of payments made to non-residents. This section is now amended with retro-spective effect from 1-4-1962. By this amendment it is provided in the new Explanation-2 that the obligation to comply with TDS provisions will apply, with retrospective effect, to all persons whether resident or non-resident. So far section 195 was understood to put the obligation for TDS on residents and non-residents who have a permanent establishment in India and who make payments to non-residents of Income taxable under the Income-tax Act. Now, w.e.f. 1-4-1962, the obligation is extended to a non-resident person who has (a) residence or place of business or business connection in India, or (b) any other presence in any manner whatsoever in India. It may be noted that the obligation for deducting tax at source (TDS) is never made under Chapter XVII of the Income-tax Act (sections 192 to 194, 194A to 194CC and 195) with retrospective effect. All these provisions for TDS, whenever introduced or amended, are from prospective dates to enable the payer to comply with the same. Even in the Finance Act, 2012, such provisions for TDS or amendments are made in sections 193, 194E, 194J, 194LA, 194LC and 195(7) only w.e.f. 1-7-2012. However, only Explanation 2 has been inserted in section 195(1) with retrospective effect from 1-4-1962. By putting such obligation to deduct tax on certain non-residents who were not covered by the section earlier will create practical difficulties for them. It may not be possible to deduct tax from payments covered by section 195 for earlier years and they may be saddled with huge Interest liabilities and other penal conse-quences under the Income-tax Act. TDS provisions in Chapter XVII puts an obligation on the payer of any amount to collect tax due by the payee and pay to the Government. This obligation is in the nature of vicarious liability. It is a well-settled principle of law that such vicarious liability cannot be saddled on a person with retrospective effect.
ii) New s.s (7) has been inserted in section 195 w.e.f. 1-7-2012. By this amendment it is provided that the CBDT may, by Notification specify a class of persons or cases where the person responsible for paying to a non-resident, any sum, whether, chargeable to tax or not, can make an application to the AO to determine the appropriate proportion of sum chargeable to tax. On such determination tax will be deductible u/s.195(1) on that portion of the amount. Such determination by the AO may be by a general order applicable to all similar payments or may be specific order applicable to one specific transaction.
11.9 Section 163:
This section provides for liability of an ‘Agent’ of a non-resident to pay the tax or meet with obligations of a non-resident for whom he is recognised as an agent under this section. For this purpose an employee of the non-resident, (b) a person who has any business connection with the non-resident, (c) a person from or through whom the non-resident receives any income, (d) a person who is the trustee of the non-resident or (e) a person (resident or non-resident) who has acquired by way of transfer a capital asset in India. The section provides for certain limitations on the vicarious li-ability of the agent. Section 149 provides that AO has to give notice to the person whom he wants to treat as agent of a non-resident. The time limit for giving such notice was 2 years from the end of the assessment year for which he wants to treat that person as agent u/s.163. This time limit is now extended to 4 years w.e.f. 1-7-2012. It is also pro-vided, by this amendment, that such notice can be given for any assessment year prior to A.Y. 2012-13. In other words, the AO can give such notice to any person to treat him as agent of a non-resident in respect of income assessable in the case of a non-resident for A.Y. 2008-09, after 1-7-2012 but before 31-3-2013. This amendment appears to have been made to recover tax from Vodafone by treating it as agent of the non-resident company in respect of capital gain alleged to have been made on transfer of shares of a non-resident company to another non-resident company. This tax is now proposed to be levied in respect of such transactions as a result of retrospective amendments of sections 2(14), 2(47), 9 and 195 as discussed above.
11.10 Section 119 of the Finance Act, 2012:
This section provides for validation of demands raised under the Income-tax Act in certain cases in respect of income accruing or arising, through or from a transfer of capital asset situated in India, in consequence of the transfer of shares of a foreign company or in consequence of an agreement or otherwise in a foreign country. This section also states that any notice sent or taxes levied, demanded, assessed, imposed, collected or recovered during any period prior to 1-4 -2012 shall be deemed to have been validly made. Such notice or levy of tax, etc. shall not be called in question on the ground that the tax was not chargeable. This cannot be challenged even on the ground that it is a tax on capital gains arising out of transactions which have taken place in a foreign country. This section will operate notwithstanding anything contained in any judgment, decree or order of any Court, Tribunal or any Authority. It appears that this section is inserted in the Finance Act to ensure that taxes collected in the Vodafone case or other similar cases are not required to be refunded. A question may arise about validity of such a provision for retention of taxes collected from certain assesses by the Govern-ment when any Court judgment or decree directs that such tax should be refunded to the assessee. Another question will arise whether the Government will be liable to pay interest on such amount retained under the validation provision if ultimately the Government has to refund the amount after some years of litigation.
11.11 Section 115A:
This section is amended with effect from 1-7-2012. It is provided that the rate at which Income tax shall be payable in the case of a non-resident, other than a foreign company, in respect of interest received from an Indian company engaged in specified in-frastructure activities, in respect of loan given in foreign currency under an agreement approved by the Government between 1-7-2012 to 30-6-2015, shall be taxable @ 5%. This tax shall be subject to deduction at source u/s.194LC w.e.f. 1-7-2012.
11.12 Section 115BBA:
This section is amended effective from A.Y. 2013-14 to provide that a non-resident, entertainer, such as a theatre, radio, television artist and musician, from performance in India will be taxable at 20% of gross receipts. It is also provided that in the case of a non-resident sports association, tax will be payable at 20% of gross receipts instead of 10% which is the existing rate. Consequential amendments have also been made for the purpose of TDS on these payments u/s.194E w.e.f. 1-7-2012.
11.13 Tax on long-term capital gain:
Section 112 has been amended from A.Y. 2013 -14 to provide that, in the case of a non -resident or a foreign company, capital gains tax payable on transfer of a long-term capital asset, being shares or securities which are not listed on the Stock Ex-change shall be 10%. For this purpose the long-term capital gain is to be computed without indexation or without taking advantage of foreign currency rate differences provided in section 48.
12. Transfer pricing provisions:
In order to widen the scope of transfer pricing pro-visions and to clarify certain issues, the following sections are amended. Some of these amendments have retrospective effect.
12.1 Section 92B:
This section gives the meaning of ‘International Transaction’. This section is now amended with retrospective effect from 1-4-2002. By this amendment, it is provided that the expression ‘International Transaction’ shall include —
i) the purchase, sale, transfer, lease or use of tangible property, including building, transportation vehicle, machinery, equipment, tools, plant, furniture, commodity and any other article or thing.
ii) the purchase, sale, transfer, lease or use of intangible property, including transfer of owner-ship or the provision for use of rights regarding land, copyrights, patents, trademarks, licences, franchises, customer list, marketing channel, brand, commercial secret, know-how, industrial property right, exterior design or practical and new design or any business or commercial rights of similar nature.
iii) capital financing, including any type of long-term or short-term borrowing, lending or guarantee, purchase or sale of marketable securities or any type of advance, payments or deferred payment receivable or any other debt arising during the course of business.
iv) provision of services, including provision of mar-ket research, market development, marketing management, administration, technical service, repairs, design, consultation, agency, scientific research, legal or accounting service.
v) a transaction of business restructuring or reorganisation, entered into by an enterprise with an associated enterprise, irrespective of the fact that it has a bearing on the profit, income, losses, or assets of such enterprise at the time of the transaction or at future date.
Further, the expression ‘Intangible Property’ has also been defined w.e.f. 1-4-2002 to include 12 items listed in the amended section. This refers to various types of intangible properties related to marketing, technology, artistic, data processing, engineering, customer, control, human capital, location, goodwill and similar items which derive their value from intellectual content rather than physical attributes.
12.2 Section 92C:
i) This section deals with computation of arm’s-length price. In section 92C(1) six methods are provided for determination of ALP. Section 92C(2) states that the most appropriate method for this purpose shall be determined as provided in the Rules 10B and 10C framed by the CBDT. The second proviso to this section is now amended w.e.f. A.Y. 2013-14 to provide that if the variation between the ALP determined under the section and the price at which the international transaction has actually been undertaken does not exceed such percentage not exceeding 3% of the latter, as may be notified by the Government. Earlier this margin was ±5% which has now been restricted to ±3%.
ii) Further, section 92C is amended by insertion of s.s (2A) with retrospective effect from 1-4-2002. The amendment is stated to be of a clarificatory nature. The effect of this amendment is that, in respect of first proviso to section 92C(2), as it stood before its substitution by the Finance (No. 2) Act, 2009, the tolerance band of 5% is not to be taken as a standard deduction while computing ALP. However, it is also clarified that already concluded assessment proceedings should not be a reopened or rectified on the ground of retrospective amendment.
iii) Section 92C(2) is also amended with retrospective effect from 1-10-2009. This amendment clarifies that the second proviso to section 92C(2) shall also be applicable to all proceedings which were pending as on 1-10-2009 i.e., the date on which the second proviso, as inserted by the Finance (No. 2) Act, 2009, came into force.
iv) It may be noted that, as stated above, section 92C now applies to specified domestic transactions also from A.Y. 2013-14.
12.3 Section 92CA:
i) This section deals with reference by the AO to the Transfer Pricing Officer (TPO) in specified cases involving Transfer Pricing issues. S.s (2B) has now been inserted with retrospective effect from 1-6- 2002. It is provided by this amendment that if the assessee has not furnished the audit report u/s.92E in respect of an international transaction and such transaction comes to the notice of the TPO, during the course of proceedings before him, it will be possible for the TPO to consider this transaction as if it has been referred to him by the AO It is also provided in new sub-section (2C) that the AO shall not have power to reopen or rectify any assessment proceedings which have been completed before 1-7-2012.
ii) As stated above, this section is now applicable to specified domestic transactions from A.Y. 2013-14. This will mean that assesses who have entered into specified domestic transaction exceeding Rs.5 Cr. in the accounting year 2012-13 onwards will have to appear before the AO as well as the TPO.
13. Advance Pricing Agreement:
Advance Pricing Agreement (APA) mechanism is introduced by new sections 92CC and 92CD inserted in the Income-tax Act, w.e.f. 1-7-2012. This provision is similar to Clause 118 of the DTC Bill, 2010. This provision is introduced to provide certainty to the international transactions and will reduce litigation relating to transfer pricing issues. Section 92CC gives power to the CBDT to enter into an APA, with any person, determining arm’s-length price.
13.1 In brief, the provisions of section 92CC are as under:
i) The CBDT, with the approval of the Central Government, can enter into an APA with any person (assessee) determining the arm’s-length price or specifying the manner in which such ALP is to be determined. This APA will relate to an international transaction to be entered into by that person.
ii) The manner in which ALP is to be determined in the above APA may include any of the methods referred to in section 92C(1) or any other method, with such adjustments or variations, as the assessee and the CBDT agree upon.
iii) Once APA is entered into by the CBDT with the assessee, the ALP for the international transaction, stated in APA, will be determined on that basis and the AO cannot invoke the provisions of sections 92C and 92CA.
iv) APA referred to above shall be valid for such period not exceeding 5 years as specified in the APA.
v) The above APA shall be binding on (a) the person in whose case and in respect of the transaction stated in the APA and (b) the Income tax Authorities in respect of the party to the APA for the transaction specified therein.
vi) The above APA shall not be binding if there is change in the law or facts relating to the APA.
vii) The CBDT, with the approval of the Govern-ment, can declare the APA as void abinitio, if it finds that the APA has been obtained by the assessee by fraud or misrepresentation of facts.
viii) If the APA is declared as void by the CBDT, all the provisions of the Act shall apply as if such agreement was not entered into. For the purpose of taking any action against the assessee, in view of the cancellation of APA, the period from the date of the APA to the date of its cancellation will not be counted for determining the limitation period.
ix) The CBDT will prescribe a scheme for the pro-cedure to be followed for entering into the APA.
13.2 The effect of the APA entered into by an as-sessee is explained in the new section 92CD as under:
i) Where APA has been entered into by an assessee, the Income-tax return which pertains to a previous year covered under the above agreement and is already filed, the assessee has to file a modified return of income u/s.139 in accordance with and limited to the APA. This modified return has to be filed within 3 months from the end of the month in which APA is entered into.
ii) Once the modified return of income is filed, the AO will have to assess, reassess or recompute the income, irrespective of the fact whether the assessment/reassessment proceedings are over or not, in accordance with the APA.
iii) Where the assessment proceedings are completed, the reassessment proceedings are to be completed within one year from the end of the financial year in which modified return of income is filed. If the assessment proceedings are pending, the period of limitation for completion of these proceedings will be extended by 12 months.
13.3 Considering the wording of sections 92CC and 92CD and the intention of the legislation, it will be possible for any assessee, who has already entered into international transactions in the earlier years, to approach the CBDT after 1-7-2012 to enter into APA in respect of such transactions already entered into in the past. This will enable the assessee to apply to the AO that the pending assessments may be completed on the basis of APA. It appears that even if any appeals are pending for any of the earlier years, the assessee will be entitled to withdraw the appeals and approach the AO to make reassessment or recomputation of income for those years in ac-cordance with APA. For this purpose, the assessee should ensure that the APA covers all the earlier years for which disputes are pending.
13.4 Since the transfer pricing provisions have now been extended to ‘Specified Domestic Transactions’ also, it will be in the interest of the assessee and the Tax Department that the above provisions for Advance Pricing Agreement are extended to ‘Specified Domestic Transactions’ also. This will reduce litigation on the question of determination of arm’s-length pricing issues which will arise in relation to such domestic transactions.
14. General Anti-Avoidance Rule (GAAR):
14.1 This is a new concept introduced in the Income-tax Act by the Finance Act, 2012. Very wide powers are given to the Tax Authorities by these provisions. In new Chapter X-A, sections 95 to 102 have been inserted. In para 154 of the Budget Speech, while introducing the Finance Bill, 2012, the Finance Minister has stated that “I propose to introduce a General Anti-Avoidance Rule (GAAR) in order to counter aggressive tax avoidance schemes, while ensuring that it is used only in appropriate cases, enabling review by a GAAR panel.
14.2 The reasons for introducing GAAR provisions in the Income-tax Act are explained in the Explanatory Notes attached to the Finance Bill, 2012.
14.3 There was large-scale opposition to the introduction of this provision in the form suggested in the Finance Bill, 2012, and the DTC Bill, 2010, pending consideration of the Parliament. This opposition was voiced by various trade and industry bodies in India and abroad. The Finance Minister responded to the various suggestions made by members of the Parliament and various trade and industry bodies while replying to the debate in the Parliament on 7th May 2012.
14.4 GAAR provisions:
For the reasons stated by the Finance Minister, special provisions relating to GAAR have been made in sections 95 to 102 in the Income-tax Act from A.Y. 2014-15 (Accounting Year ending 31-3-2014) and onwards. These provisions apply to all assesses (residents or non-resident) in respect of their transactions in India as well as abroad. Very wide powers are given to the tax authorities to disregard any agreement, arrangement or any claim for expenditure, deduction or relief. These provisions, broadly stated are discussed below.
14.5 Section 95:
This section provides that an arrangement entered into by an assessee may be declared to be an impermissible avoidance arrangement. The tax arising from such declaration by the tax authorities, will be determined subject to provisions of sections 96 to 102. It is also stated in this section that the provisions of sections 96 to 102 may be applied to any step, or a part of the arrangement as they are applicable to the entire arrangement.
14.6 Impermissible Avoidance Arrangement (section 96):
i) Section 96 explains the meaning of Impermissible Avoidance Arrangement to mean an arrangement, the main purpose or one of the main purposes of which is to obtain a tax benefit and it —
a. Creates rights or obligations which would not ordinarily be created between persons dealing at arm’s length.
b. Results, directly or indirectly, in misuse or abuse of the provisions of the Income-tax Act.
c. Lacks commercial substance, or is deemed to lack commercial substance u/s.97, or
d. is entered into or carried out, by means, or in a manner, which are not ordinarily employed for bona fide purposes.
ii) The Finance Bill, 2012, provided in the section that an arrangement whereby there is any tax benefit to the assessee shall be presumed to have been entered into or carried out for the main purpose of obtaining tax benefits, unless the assessee proved otherwise. It will be noticed that this was a very heavy burden cast on the assessee. However, this requirement has now been deleted and, as declared by the Finance Minister, the onus of proof is now on the Department who has to establish that the arrangement is to avoid tax before initiating the proceedings under these provisions.
14.7 Lack of commercial substance (section 97):
i) Section 97 explains the concept of lack of com-mercial substance in an arrangement entered into by the assessee. It states that an arrangement shall be deemed to lack commercial substance if —
a) The substance or effect of the arrangement, as a whole, is inconsistent with, or differs significantly from, the form of its individual steps or a part of such steps.
b) It involves or includes
— Round-trip financing
— An accommodation party,
— Elements that have the effect of offsetting or canceling each other, or
— A transaction which is conducted through one or more persons and disguises the value, location, source, ownership or control of funds which is the subject matter of such transaction, or
c) It involves the location of an asset or a transaction or the place of residence of any party which is without any substantial commercial purpose. In other words, the particular location is disclosed only to obtain tax benefit for a party.
ii) For the above purpose, it is provided that round-trip financing includes any arrangement in which through a series of transactions —
a) Funds are transferred among the parties to the arrangement, and
b) Such transactions do not have any substantial commercial purpose other than obtaining tax benefit.
iii) It is further stated that the above view will be taken by the Tax Authorities without having regard to the following.
a) Whether or not the funds involved in the round-trip financing can be traced to any funds transferred to, or received by, any party in connection with the arrangement,
b) The time or sequence in which the funds involved in the round trip financing are transferred or received, or
c) The means by, manner in, or mode through which funds involved in the round-trip financing are transferred or received.
iv) The party to such an arrangement shall be treated as ‘Accommodating Party’ whether or not such party is connected with the other parties to the arrangement, if the main purpose of, direct or indirect, participation of such party with the arrangement is to obtain, direct or indirect, tax benefit under the Income-tax Act.
v) It is clarified in the section that the following factor shall not be taken into consideration for determining whether there is commercial substance in the arrangement:
a. The period or time for which the arrangement exists.
b. The fact of payment of taxes, directly or indirectly, under the arrangement.
c. The fact that an exist route, including transfer of any activity, business or operations, is provided by the arrangement.
14.8 Consequence of impermissible avoidance arrangement (section 98):
Under the newly inserted section 144BA, the Commissioner has been empowered to declare any arrangement as an impermissible avoidance arrangement. Section 98 states that if any arrangement is declared as impermissible, then the consequences, in relation to tax or the arrangement shall be determined in such manner as is deemed appropriate in the circumstances of the case. This will include denial of tax benefit or any benefit under applicable DTAA. The following is the illustrative list of conse-quences and it is provided that the same will not be limited to the list:
i) Disregarding, combining or re-characterising any step in, or part or whole of the impermissible avoidance arrangement;
ii) Treating, the impermissible avoidance arrangement as if it had not been entered into or carried out;
iii) Disregarding any accommodating party or treating any accommodating party and any other party as one and the same person;
iv) Deeming persons who are connected persons in relation to each other to be one and the same person;
v) Re-allocating between the parties to the ar-rangement, (a) any accrual or receipt of a capital or revenue nature or (b) any expenditure, deduction, relief or rebate;
vi) Treating (a) the place of residence of any party to the arrangement or (b) situs of an asset or of a transaction at a place other than the place or location of the transaction stated under the arrangement.
vii) Considering or looking thorough any arrangement by disregarding any corporate structure.
viii ) It is also clarified that for the above purpose that Tax Authorities may re-characterise (a) any equity into debt or any debt into equity, (b) any accrual or receipt of capital nature may be treated as of revenue nature or vice versa or (c) any expenditure, deduction, relief or rebate may be re-characterised.
14.9 Section 99:
This section provides for treatment of connected person and accommodating party. The section provides that for the purposes of sections 95 to 102, for determining whether a tax benefit exists —
i)The parties who are connected person, in relation to each other, may be treated as one and the same person.
ii) Any accommodating party may be disregarded.
iii) Such accommodating party and any other party may be treated as one and the same person.
iv) The arrangement may be considered or looked through by disregarding any corporate structure.
14.10 It is further provided in section 100 that the provisions of sections 95 to 102 shall apply in addition to, or in lieu of, any other basis for determination of tax liability. Section 101 gives power to the CBDT to prescribe the guidelines and lay down conditions for application of sections 95 to 102 relating to the General Anti-Avoidance Rules (GAAR). Let us hope that these guidelines will specify the type of arrangements and transactions in relation to which alone the Tax Authorities have to invoke the provision of GAAR. Further, it is necessary to specify that if the tax benefit sought to be obtained by any arrangement is say Rs.5 crore or more in a year, then only the Tax Authorities will invoke these powers.
14.11 Section 102:
This section defines words or expressions used in sections 95 to 102 as stated above.
14.12 Section 144BA:
Procedure for declaring an arrangement as impress-ible u/s.95 to u/s.102 is given in this section. This section will come into force from A.Y. 2014-15.
i) The Assessing Officer can make a reference to the Commissioner for invoking GAAR and on re-ceipt of reference the Commissioner shall hear the taxpayer. If he is not satisfied by the submissions of taxpayer and is of the opinion that GAAR provi-sions are to be invoked, he has to refer the matter to an ‘Approving Panel’. In case the assessee does not object or reply, the Commissioner shall make determination as to whether the arrangement is an impermissible avoidance arrangement or not.
ii) The Approving Panel has to dispose of the ref-erence within a period of six months from the end of the month in which the reference was received from the Commissioner.
iii) The Approving Panel shall either declare an arrangement to be impermissible or declare it not to be so after examining material and getting further inquiry to be made. It can issue such directions as it thinks fit. It can also decide the year or years for which such an arrangement will be considered as impermissible. It has to give hearing to the assessee before taking any decision in the matter.
iv) The Assessing Officer will determine conse-quences of such a positive declaration of arrangement as impermissible avoidance arrangement.
v) The final order, in case any consequences of GAAR is determined, shall be passed by the AO only after approval by the Commissioner and, thereafter, first appeal against such order shall lie to the Ap-pellate Tribunal.
vi) The period taken by the proceedings before the Commissioner and the Approving Panel shall be excluded from time limitation for completion of assessment.
vii) The CBDT has to constitute an ‘Approving Panel’ consisting of not less than three members. Out of these three members, two members shall be of the rank of Commissioners of Income-tax and one member shall be an officer of the Indian Legal Service of the rank of Joint Secretary or above to the Central Government. It is not clear from these provisions whether the CBDT will appoint only one Approving Panel for the whole of the country or there will be separate Panels in each State. Considering the work load and considering the convenience of the assessees it is necessary to have one such Panel in each State.
viii) In addition to the above, it is provided that the CBDT has to prescribe a scheme for efficient functioning of the Approving Panel and expeditious disposal of the references made to it.
ix) Appeal against order of assessment passed under the GAAR provisions after approval by the appropriate authority is to be filed directly with the ITA Tribunal and not before the CIT(A). Section 144C relating to reference before DRT does not apply to this assessment order and, therefore, no reference can be made to DRT when GAAR provisions are invoked.
14.13 The above GAAR provisions will have far-reaching consequences for assessees engaged in the business with Indian or foreign parties. GAAR is not restricted to only business transactions. Therefore, all other assessees who are engaged in business or profession or who have no income from business or profession will be affected by these provisions. It appears that any assessee having any arrangement, agreement, or transaction with an associated person will have to take care that the same is at arm’s-length consideration. In particular, an assessee will have to consider the implications of GAAR while (a) executing a will or trust, (b) entering into partner-ship or forming LLP, (c) taking controlling interest in a company, (d) carrying out amalgamation of two or more companies, (e) effecting demerger of a company, (f) entering into a consortium or joint venture, (g) entering into foreign collaboration, or acquiring an Indian or foreign company. It may be noted that this is only an illustrative list and there may be other transactions which may attract GAAR provisions.
14.14 From the wording of the above provisions of sections 95 to 102 and 144BA it appears that the provisions of GAAR can be invoked in respect of an arrangement made prior to 1-4-2013. The CIT or the Approving Panel can hold any such arrangement entered into prior to 1-4-2013 as impermissible and direct the AO to make adjustments in the computation of income or tax in the A.Y. 2014-15 or any year thereafter. As stated in para 15.15 of the report of the Standing Committee on Finance on the DTC Bill, 2010, it would be fair to apply GAAR provisions prospectively, so that it is not made applicable to existing arrangements/transactions. It may be noted that no such provision is made in sections 95 to 102 and 144BA and, therefore, it can be presumed that the above GAAR provisions will have retroactive effect.
14.15 In section 101 it is stated that the CBDT will issue guidelines to provide for the circumstances under which GAAR should be invoked. Let us hope that these guidelines will specify that GAAR provisions will apply to all arrangements or transactions entered into after 1-4-2013 and also the type of arrangements or transactions to which GAAR will apply. It is also necessary to specify that GAAR provisions will be invoked if the tax sought to be avoided is more than Rs.5 crore, in any one year. This is also suggested by the Standing Committee on Finance in their report on the DTC Bill, 2010. As regards the procedure for invoking GAAR, section 144BA(4) provides that if the CIT agrees with the view of the AO to invoke GAAR, he should refer the matter to an Approving Panel. U/s.144BA(14) it is provided that the CBDT will appoint an Approving Panel consisting of two members of the level of Commissioners and one Law Officer. As suggested by the above Standing Committee in their report on the DTC Bill, 2010, such Panel should consist of a Chief Commissioner and two independent technical persons.
15. Assessment, reassessment and appeals:
15.1 Section 139 — Return of income:
i) This section is amended from A.Y. 2012-13 (Ac-counting Year ending 31-3-2012). The amendment now requires that a resident and ordinarily resident, who is otherwise not required to furnish a return of income, will be required to furnish his return of income before the due date for filing the return in the following cases:
a) If the person has any asset located outside India. This will mean that if the person owns any immovable property outside India, any shares in a foreign company, any bank account or other assets outside India, he will have to file return even if the total income is below the taxable limit.
b) If the person has any financial interest in any entity in a foreign country. This will mean that if the person is a beneficiary in any specific or any discretionary foreign trust, he will have to file his return of income whether he has received any benefit from the trust or not.
c)If the person has signing authority in any account located outside India.
ii) The above provision applies to a company, firm, individual, HUF or any non-corporate entity who is a resident and ordinarily resident. Such person will have to file return of income for the accounting year 1-4-2011 to 31-3-2012 (A.Y. 2012-13) and onwards. It may be noted that in a case where the person (whether resident or non-resident) has taxable income in India, he will have to give information about the above items in the form of return of income prescribed for A.Y. 2012-13.
iii) At present, the due date for furnishing the return of income in the case of an assessee, being a company is required to file Transfer Pricing Re-port u/s.92E, is 30th November. It is now provided that the extended time limit up to 30th November will apply to all assessees who are required to fileTransfer Pricing Report u/s.92E. This amendment will come into force from A.Y. 2012-13.
15.2 Section 143 — Procedure for assessment:
At present, the return is required to be processed u/s.143(1) even if the case is selected for scrutiny. The section is now amended, effective from 1-7-2012, to provide that if the case is selected for scrutiny, the AO is not required to process the return of income u/s.143(1). This will mean that if the person has claimed refund in the return of income and his case is taken up for scrutiny, the refund if due, will be issued only after completion of assessment u/s.143(3).
15.3 Section 144C — Reference to DRP:
i) This section is amended with retrospective effect from 1-10-2009. Under this section when the AO wants to make a variation in the income or loss, as a result of order passed by a Transfer Pricing Officer u/s.92CA(3), he has to pass a draft assessment order. If the assessee objects to the variation, he has to refer the matter to the Dispute Resolution Panel (DRP) u/s.144C. The DRP has power to confirm, reduce or enhance the assessment. There was a controversy as to whether this power of enhancement includes power to consider any other matter arising out of the assessment proceedings relating to the draft assessment order. To clarify this doubt, this section is now amended w.e.f. 1-10-2009 to provide that the DRP can consider any other mater relating to the draft assessment order while enhancing the variation. It may be noted that this amendment does not clarify whether the DRP can consider any other matter brought to its notice by the assessee which has the effect of reducing the income or increasing the loss.
ii) Further, it is also clarified that the enhance-ment in time limit for computation of assessment, provided in this section 144C(13), will apply to time limit provided u/s.153 as well as u/s.153B w.e.f. 1-10-2009.
iii) It may be noted that from A.Y. 2013-14, cases in which specified domestic transactions are there will now be referred to TPO. Therefore, the above procedure of making draft order and reference to
DRP will apply in such cases also.
15.4 Sections 147 and 149 — Reassessment of income:
These two sections dealing with income-escaping assessment and time limit for reopening assessment have been amended w.e.f. 1-7-2012. These amendments will apply to any assessment year beginning on or before 1-4-2012. The effect of these amendments is as shown in Table on the next page.
i) At present, the time limit for reopening assessments is 6 years. In a case where assessment is made u/s.143(3) and the income-escaping assessment is not due to failure of the assessee to disclose fully and truly all material facts necessary for assessment for that year, the time limit for reopening is 4 years. This time limit is now enhanced in specified cases.
ii) It is now provided that if the income in relation to any asset (including financial interest in any entity) located outside India, chargeable to tax, has escaped assessment for any year, the time limit for reopening the assessment shall be 16 years. For this purpose, where a person is found to have any asset or any financial interest in any entity located outside India, shall be deemed to be a case where income chargeable to tax has escaped assessment. This provision will apply to a resident or a non-resident. In the coming years, this provision will have far-reaching implications.
iii) It is now provided that if a person has failed to furnish the Transfer Pricing Report u/s.92E in respect of any international transaction, income shall be deemed to have escaped assessment. In such a case the AO can send notice for reopening assessment within the prescribed period.
iv) Similar amendments are made in the Wealth Tax Act also.
v) Reading the above provisions, it appears that in a transaction similar to the case of the famous VODAFONE the assessments of a foreign company which has made taxable capital gains or other income can be reopened for 16 years instead of 6 years as in such cases some assets will be located outside India.
15.5 Sections 153 and 153B — Time limit for completion of assessments:
These sections are amended w.e.f. 1-7-2012. At present, the time limit for completion of assessment or reassessment proceedings is 21 months. In a case where reference is made to the Transfer Pricing Officer, the time limit for completion of assessment is 33 months. This time limit is extended as under:
15.6 Sections 153A and 153C — Assessment in case of search or requisition:
These sections are amended w.e.f. 1-7-2012. Sections 153A and 153C of the Act lay down the procedure for assessment/reassessment in case of search or requisition. Presently, the notice for filing of returns of income and assessment thereof has to be given for six assessment years preceding the previous year in which the search was conducted or requisi-tion made.
It is now provided that the Central Government can notify cases or class of cases where the Assessing Officer shall not be required to issue notice for initia-tion of assessment/reassessment proceedings for six preceding assessment years and proceedings may only be taken up for the assessment year relevant to the year of search or requisition.
15.7 Sections 154 and 156:
i) These sections have been amended w.e.f. 1-7-2012. A statement of tax deduction at source is processed u/s.200A and an intimation is sent to the deductor as provided u/s.200A(1). At present, there is no provision for rectification or appeal against the said intimation.
ii) It is now provided that any mistake apparent from the record in the intimation issued u/s.200A shall be rectifiable u/s.154. It is also provided that the intimation issued u/s.200A shall also be deemed to be a notice of demand u/s.156 and an appeal can be filed with the Commissioner of Income-tax (Appeals) u/s.246A.
iii) In actual practice there is considerable delay in passing order u/s.154 for rectification of mistake in any order passed by the AO It is, therefore, sug-gested that section 246A should be amended to provide that if rectification order is not passed by the AO within 6 months of filing such application the assessee will have a right to file appeal to the CIT(A). It may be noted that similar provision is made in clause 178 of the DTC Bill, 2010.
15.8 Section 245C — Settlement Commission:
Sections 245C dealing with application for settlement of cases has been amended w.e.f. 1-7-2012. At present, an application can be filed before the Settlement Commission u/s.245C by a related person who has substantial interest of more than 20% of the profits of the business at any time during the previous year. Now, it is provided that the substan-tial interest should exist on the date of search and not at any time during the previous year.
15.9 Section 245N: Authority for Advance Ruling (AAR)
This Section is amended w.e.f. 1-4-2013 (A.Y. 2013-14). By this amendment it is provided that an assessee can approach the AAR for determination or decision whether an arrangement which is proposed to be undertaken by any person (resident or non-resident) is an impermissible arrangement as provided in sections 95 to 102. This will enable the person enter-ing into an arrangement to get an Advance Ruling from AAR if he apprehends that the AO may invoke GAAR provisions during assessment proceedings. As suggested earlier, this provision should be made available to persons entering into specified domestic transactions u/s.92BA.
15.10 Section 245Q — Fees for filing application for Advance Ruling:
Fees for filing an application before the Authority for Advance Ruling is increased from Rs.2500 to Rs.10000 w.e.f. 1-7-2012. The CBDT is now given power to increase or reduce the amount of fees from time to time by prescribing the necessary rule for this purpose.
15.11 Section 246A — Appealable orders before CIT(A):
The list of orders against which appeals can be filed before the CIT(A) has now been expanded. Now appeals can be filed before the CIT(A) against the following orders:
i) The tax deductor can file appeal on after 1-7-2012 against the intimation issued u/s.200A relat-ing to short deduction of tax at source.
ii) The assessee can file appeal against the order passed by the AO u/s.153A in search cases if such order is not passed in pursuance of the directions of the DRP. This will be effective from 1-10-2009.
iii) The assessee can file appeal against the order of assessment or reassessment passed under new section 92CD(2) after furnishing the modified return based on the Advance Pricing Agreement as provided in the new section 92CC. This is effective from 1-7-2012.
iv) Penalty order passed under new section 271 AAB where search has been initiated. This is effec-tive from 1-7-2012.
15.12 Section 253 — Appeals before ITA Tribunal:
i) The following amendment is made w.e.f. 1-4-2013:
Any order passed by the AO u/s.143(3), 147, 153A or 153C in pursuance of the order passed by the CIT u/s.144BA(12) in accordance with the directions by the Approving Panel or the CIT, declaring any ar-rangement as impermissible avoidance arrangement, is appealable directly to the ITA Tribunal.
ii) The following amendments are made with reference to DRP cases:
a) The directions given by the DRP in the case of a foreign company or any person in whose case variation in the income arises due to order of the Transfer Pricing Officer are binding on the Assessing Officer. It is now provided that the Assessing Officer can also file an appeal before the ITA Tribunal against an order passed in pursuance of directions of the DRP in respect of objections filed on or after 1st July, 2012.
b) The Assessing Officer or the assessee is entitled to file memorandum of cross objections on receipt of notice that an appeal has been filed by the other party.
c) Any order passed u/s.153A or 153C in pursuance of directions of the DRP shall be directly appeal-able to the ITA Tribunal w.e.f. 1st October, 2009. Presently, such appeals are being filed with the Commissioner (Appeals).
15.13 Section 292CC — Authorisation and assessment in case of search or requisition:
This is a new section inserted w.e.f. 1-4-1976 to clarify the procedure for authorisation and assessment in certain cases of search or requisition. In the case of CIT v. Smt. Vandana Verma, 330 ITR 533 (All.) it was held that if search warrant is in the name of more than one person, then assessment cannot be made individually in the absence of any search warrant in the individual name. To overcome this judgment, it is now provided in this new section, with retrospective effect from 1-4-1976, that where a search warrant has been issued mentioning names of more than one persons, the assessment/reassessment can be made separately in the name of each of the persons mentioned in such search warrant.
16. Penalties and prosecution:
16.1 Section 234E — Fees for delay in furnishing TDS/TCS statement:
This is a new section which has been inserted w.e.f. 1-7-2012. At present, section 272A provides for penalty of Rs.100 per day for delay in furnishing TDS/TCS statement within the time prescribed in section 200(3) or 206C(3). Newly inserted section 234E now provides for levy of fees of Rs.200 for every day of the delay in furnishing TDS/TCS state-ments. However, the total fee shall not be more than the amount of tax deductible/collectable for the quarter for which the TDS/TCS statement is delayed. The fee is to be paid before the delivery of the TDS/TCS statements. Consequently levy or penalty provided in section 272A(2)(k) is deleted. However, new section 271H has been added to levy of penalty under certain circumstances as discussed in Para 16.5 below. It may be noted that no appeal against levy of fees payable u/s.234E is provided in section 246A.
16.2 Section 271 — Penalty for concealment — Amendment w.e.f. 1-4-2013:
The transfer pricing regulations are extended to specified domestic transactions entered into by domestic related parties. If any amount is added or disallowed, based on the arm’s- length price determined by the Assessing Officer, it is now provided that such addition/disallowance shall be deemed to represent the income in respect of which particulars have been concealed or inaccurate particulars have been furnished as provided in Explanation 7 to section 271(1) and it is liable to penalty accordingly.
16.3 Section 271AA — Penalty for failure to report, etc. of International and specified domestic transactions:
i) Amendment w.e.f. 1-7-2012
At present, there is no penalty for non-reporting of an international transaction in the report filed u/s.92E or maintaining or furnishing or incorrect information of documents.
Therefore, a levy of penalty at the rate of 2% of the value of the international transaction is provided, if the taxpayer
a) fails to keep and maintain prescribed information and documents u/s.92D(1) or (2)
b) fails to report any international transaction u/s.92E, or
c) maintains or furnishes any incorrect information or documents.
ii) Amendment w.e.f. 1-4-2013
The above provision for levy of penalty u/s.271AA will apply if there is failure to comply with the above requirements in the case of domestic transactions also from A.Y. 2013-14.
16.4 Section 271G — Penalty for failure to furnish information or documents u/s.92D — w.e.f. 1-4-2013:
At present, section 271G provides for levy of penalty at 2% of the value of transaction for failure to furnish information or documents u/s.92D which requires maintenance of certain information and documents in the prescribed proforma by the persons entering into an international transaction. This penal provision will now apply to persons entering into specified domestic transactions for such failure effective from A.Y. 2013-14.
16.5 Section 271H: Penalty for failure to furnish TDS/TCS statements:
This is a new section which has been inserted w.e.f. 1-7-2012. In addition to fees payable under the newly inserted section 234E, section 271H also provides for penalty for not furnishing quarterly TDS statements within the prescribed time limit or penalty for furnishing incorrect information such as PAN of the deductee or amount of TDS deducted, etc. in the statements to be filed u/s.200 (3) or 206C(3). A penalty ranging from Rs.10,000 to Rs.1,00,000 is leviable for these failures. No appeal against the levy of this penalty is provided u/s.246A.
It is also provided that no such penalty will be levied if the deductor delivers the statement within a year from the due date and the person has paid the tax along with fees and interest before delivering the statement.
16.6 Sections 271AAA and 271AAB — Penalty on undisclosed income found in the course of search:
i) At present, penalty in the case of search initiated on or after 1st June, 2007 is not liviable u/s.271AAA subject to certain conditions, such as:
a) the assessee admits the undisclosed income in a statement u/s.132(4) recorded during the search,
b) he specifies the manner in which such income has been derived, and
c) he pays the tax together with interest, if any, in respect of such income.
Now, section 271AAA will not apply to search initi-ated on or after 1st July, 2012.
ii) Newly inserted section 271 AAB now provides for levy of penalty on undisclosed income of specified previous years where search has been initiated on or after 1st July, 2012 as under:
a) If the assessee admits undisclosed income during the course of search in a statement u/s.132(4), specifies the manner in which such income has been derived, pays the tax with interest on such income and furnishes return of income declaring such income, penalty shall be 10% of undisclosed income.
b) If undisclosed income is not so admitted during the course of search, but disclosed in the return of income filed after the search and he pays the tax with interest, penalty shall be 20% of undisclosed income.
c) In other cases, the minimum penalty shall be 30% subject to maximum of 90% of the undisclosed income.
16.7 Prosecution provisions — Sections 276C, 276CC, 277, 277A, 278 and 280A to 280D:
The effect of these amendments w.e.f. 1-7-2012 shall be as under:
i) Section 276C — Wilful attempt to evade tax:
At present, if the amount of tax sought to be evaded exceeds Rs.1 lac, the punishment is rigorous imprisonment for minimum of 6 months and maximum of 7 years. The limit of Rs.1 lac is now raised to Rs.25 lac.
In other cases, the rigorous imprisonment period is 3 months minimum and 3 years maximum. The period of 3 years is now reduced to 2 years.
ii) Section 276CC — Failure to furnish Returns of Income:
In this section also amendments similar to amendments in section 276C as stated in para (i) above are made.
iii) Section 277 — False Statement in Verification:
In this section also amendments similar to amendments in section 276C as stated in para (i) above are made.
iv) Section 277A — Falsification of Books of Accounts or Documents:
In this section the maximum term of imprisonment has been reduced from 3 years to 2 years.
v) Section 278 — Abetment of False Return of Income and Statements:
In this section also amendments similar to amendments in section 276C as stated in (i) above are made.
(vi) Sections 280A to 280D:
These new sections have been inserted w.e.f. 1-7-2012 with a view to appoint Special Courts to try specified offences under the Income-tax Act. It appears that these new provisions are made to strengthen the prosecution mechanism and expe-dite the disposal of prosecution cases under the Income-tax Act. In brief these provisions deal with the following matters:
a. Providing for constitution of Special Courts for trial of offences under the Act.
b. Application of summons trial for offences under the Act to expedite prosecution proceedings as the procedures in summons trial are simpler and less time consuming. The provision for summons trials will apply to offences where the maximum term of Imprisonment does not exceed 2 years.
c. Providing for appointment of public prosecutors.
17. Other amendments:
17.1 Senior citizens:
In various sections of the Income-tax Act the age limit for senior citizens was fixed at 65 years. This has now been reduced to 60 years w.e.f. A.Y. 2013-14 (Accounting Year 2012-13).
17.2 Tax audit:
Section 40AB provides that an assessee carrying on business or profession has to get the accounts audited by a Chartered Accountant if the turnover or gross receipts exceed Rs.60 lac in the case of business or exceeds Rs.15 lac in the case of profession. The limit of turnover or gross receipts for this purpose has now been increased to Rs.1 crore in the case of business or Rs.25 lac in the case of profession. Further, date for obtaining tax audit report which is 30th September has been changed to the due date of filing return of income u/s.139(1) as applicable to the assessee. The amendment increasing the limit for turnover/gross receipts will come into force from A.Y. 2013-14 (Accounting Year 2012-13).
17.3 Section 115VG — Computation of daily tonnage income for shipping companies:
This section is amended w.e.f. A.Y. 2013-14. The Tonnage Tax Scheme for shipping companies was introduced by the Finance Act, 2005. This section provides for taxation of income of a shipping company on presumptive basis. Under this scheme, the operating profit of a shipping company is determined on the basis of tonnage capacity of its ships. The rates of daily tonnage income specified in the section have not been changed since 2005. By this amendment these rates are enhanced as under:
17.4 Section 209 — Advance tax calculation:
At present, for the purpose of calculation of advance tax liability, tax deductible or collectable at source was required to be reduced even though the tax was actually not deducted. Therefore, in such cases, there was no interest liability. Now it is provided that unless such tax is actually deducted, the advance tax liability. This amendment is made w.e.f. 1-4-2012.
17.5 Section 234D — Interest on excess refund:
This section is amended w.e.f. 1-6-2003. This section was inserted by the Finance Act, 2003, w.e.f. 1-6-2003 to enable the Government to recover amount of excessive refund granted u/s.143(1). The section provides for levy of simple interest at the rate of ½% for every month or part thereof on the excess amount of refund granted u/s.143(1) if, on regular assessment, it is found to be excessive. Interest is payable for the period starting from the date of refund to the date of regular assessment.
The Delhi High Court in DIT v. Jacabs Civil Incorporated, (2011) 330 ITR 578 held that this provision will apply from the A.Y. 2004-05 and no interest is payable for the earlier assessment years. To overcome this decision, it is now provided that interest shall be payable u/s.234D on excess refund for any earlier assessment years if the proceedings in respect of such assessment are completed after 1-6-2003.
Wealth Tax Act :
Section 2(ea) — Definition of ‘Assets’:
At present, any residential unit allotted to officers, employees or whole-time directors is exempt from wealth tax if the gross annual salary of such person is less than Rs.5 lac. This limit of gross annul salary is increased to Rs.10 lac. This amendment is effec-tive from A.Y. 2013-14.
Section 17 — Wealth-escaping assessment:
This section is amended w.e.f. 1-7-2012 — It is now provided in this section that if any person is found to have any asset or financial interest in any entity located outside India, it will be deemed to be a case where net wealth chargeable to tax has escaped as-sessment. In such cases the wealth tax assessment can be reopened by the AO within 16 years.
Section 17A — Time limit for completion of assessment and reassessment:
This section is amended w.e.f. 1-7-2012. As discussed earlier, while considering the amendments in sections 153 and 153B of the Income tax, this amendment has the effect of increasing the time limit by 3 months for completion of assessment/reassessment proceedings.
Section 45:
This section provides for exemption from wealth tax to section 25 companies, co-operative societies, social clubs, recognised political parties, mutual funds, etc. This list is now expanded to provide that the ‘Reserve Bank of India’ will not be liable to pay wealth tax w.e.f. 1-4-1957.
To sum up:
19.1 From the above discussion, it will be evident that the amendments made in the Income-tax Act by this Budget are the most controversial. In par-ticular, the amendments affecting non -residents which have retrospective and retroactive effect will affect our relationship with many foreign countries and will affect our global trade. The Finance Minister has quoted in his Budget Speech Shakespear’s immortal words “I must be cruel only to be kind”. Reading the provisions relating to amendments in the Income-tax Act, one can say that this year he has been ‘Cruel’ with the non-resident taxpayers. Hopefully he may become ‘kind’ next year.
19.2 In his Budget speech, the Finance Minister has stated that his proposals relating the Direct Taxes will result in a net revenue loss of Rs.4,500 Cr. in the year and the proposals relating to Indirect Taxes will yield net revenue gain of Rs.45940 Cr. However, from his post-budget speeches before various trade bodies indicate that retrospective amendments in the Income-tax Act itself will yield revenue of about Rs.40000 Cr. Considering the stakes involved, it is evident that in the coming years we will witness a long-drawn tax litigation relating to interpretation of the retrospective amendments in the Income-tax Act.
19.3 Another provision which is likely to create lot of hardship to resident as well as non-resident tax-payer is about GAAR. It is true that the implementation of GAAR has been postponed to next year, there is apprehension that the Tax Department may hold arrangements made prior to 1-4-2013 as impermissible and make adjustments in the income for the year 1-4-2013 to 31-3-2014 and subsequent years. In other words, GAAR provisions may have retroactive effect. From the wording of GAAR provisions it is evident that it will now be difficult for resident as well as non-resident tax-payers to take any major decisions about the structure of any business transaction. Even the tax consultants will find it difficult to advise their clients about structuring or restructuring any business transaction. If the Government does not come out with a taxpayer-friendly Guidance Note, taking into consideration the business realities, the fear above invocation of GAAR will continue in the minds of all taxpayers and their tax consultants.
19.4 Another controversial provision which has been made this year relates to specified domestic transactions. By extending the scope of Transfer pricing provisions to these transactions, the compliance cost of the assessee will increase. At present no adequate data about domestic comparable prices is available in our country, and therefore, it will be difficult for assesses to maintain transfer pricing records and documents for this purpose. Since the provisions have been made effective from 1 -4-2012, many assesses may not be well equipped to maintain these records in this year. Since every case in which specified domestic transactions are entered into will be referred to the TPO, the entire assessment proceedings will become lengthy and time consuming. This will also increase compliance cost.
19.5 It is true that the tax burden of individuals, HUF, etc. has been reduced and some beneficial provisions have been introduced to remove some practical difficulties. But, it can be stated that these efforts are only half-hearted and there are many areas in which the taxpayers will have to face many practical difficulties.
19.6 The DTC Bill, 2010, is pending before the Par-liament. The report of the Standing Committee on Finance is also laid before the Parliament. This Bill was to be implemented from 1-4-2012. However, due to the delay in the legislative process it is stated that DTC will now be passed in the next session of the Parliament and will be made effective from 1-4-2013. In view of this, it is not clear why such controversial amendments are made this year in the last year of the life of the present Income-tax Act. By the time the taxpayers grasp the implications of these amend-ments, the new provisions of DTC will come into force from next year. When it became evident in the beginning of this year that DTC may be postponed by one year, it was felt that in this Budget some minimal amendments will be made in the Income-tax Act as and by way of parting gift to the taxpayer. But, after reading the controversial amendments in the Income-tax Act in this Budget, the taxpayers have felt that this Act has given a parting kick to the taxpayers in the last year of its existence.
Acknowledgement:
S. M. Jhaveri, Chartered Accountant has assisted the author in the preparation of this article.
Transfer of property — Adverse possession — Transfer of Proper for Act section 53A
The plaintiff’s version was that he had been in continuous possession of the schedule lands having been put in possession of the same under the private sale deed and has been raising seasonal crops. Thus, he asserts that after his purchase, he has been in possession of the schedule lands and the said fact is known to each and every body in and around the village, including the defendants. He also pleaded that by continuously remaining in possession and upon asserting his title to the knowledge of the defendants he perfected the title to the schedule property by adverse possession.
The defendants No. 3 and 4 alleged that the sale deed are sham and bogus documents and the property was coparcenery property, therefore the defendant No. 1 could not have sold the same.
The issue that arose was whether the plaintiff was entitled to protect his possession under law on the ground that since he remained in possession of the property for more than the period of 12 years and that he had perfected his title by adverse possession.
The Court observed that person who obtained the possession of the property under executory terms of contract of sale, cannot ask for declaration of his title on the ground that he remained in possession of the property for more than 12 years period and contending that his possession is adverse to the real owner. The Apex Court in Achal Reddi v. Ramakrishna Reddiar & Ors., AIR 1990 SC 553 held that possession of a purchaser is under a contract of sale, his possession cannot be adverse and he cannot set up the plea of adverse possession. Therefore, the Trial Court erred in declaring the title of the plaintiff holding that he perfected his title to the schedule mentioned property by adverse possession against the defendants.
However, by virtue of the doctrine of part performance embodied in section 53A of the Transfer of Property Act, the plaintiff can protect his possession from defendants 1 and 2 who sold the property to him under the simple sale deed, so also he can protect his possession from defendants 3 and 4 who had the knowledge of the earlier sale transaction in his favour under a sale deed. Further it is true that section 53A only operates as a bar against the defendants in the present case from enforcing any rights against the plaintiff other than those which were provided under simple sale deed. Although the section does not confer title on the person who took possession of the property in part performance of the contract, the law is now well settled that when all conditions of the section are satisfied as in the present case, the possession of the person must be protected by the Court whether he comes as a plaintiff or defendant. The only embargo is that section 53A cannot be taken in aid by the transferee to establish his right as owner of the property. But the transferee can protect his possession having recourse to section 53A, either by instituting a suit for injunction as a plaintiff or by defending the suit filed by the transferor or subsequent purchasers as a defendant. It is also well settled that the transferee can very well file a suit for injunction to protect his possession even though his remedy to file a suit for specific performance of contract is barred by limitation.
Part performance of Contract — Conditions — The Limitation Act does not extinguish the defence, it only bars the remedy — Section 53A does not confer a title on transferee in possession — Transfer of Property Act, section 53A.
The suit of the plaintiff seeking possession of the suit property had been dismissed. The case of the plaintiff was that the defendants had entered into an agreement to sell dated 13-11-1992 with the father of the plaintiff, namely, Sh. Mangat Ram for the purchase of the aforenoted suit property; total consideration was Rs.2,80,000; a sum of Rs.1,05,000 was paid to Sh. Mangat Ram; the defendants agreed to pay the balance consideration on or before 13-9-1993. The balance amount was not paid. The defendants requested Sh. Mangat Ram to cancel the agreement; the defendants had agreed to vacate the property within three to four months. Sh. Mangat Ram expired on 21-4-1997. In spite of requests of the plaintiff to the defendant to vacate the suit property as also the legal notice dated 22-12-2001, the defendants failed to adhere to the said request. Thereafter the suit seeking possession of the suit shop as also damages at the rate of Rs.5,000 per month was claimed. The defendant took defence of part performance of contract u/s.53.
The Court observed that the conditions necessary for making out the defence of part performance to an action in ejectment by the owner are:
(a) That the transferor has contracted to transfer for consideration any immoveable property by writing signed by him or on his behalf from which the terms necessary to constitute the transfer can be ascertained with reasonable certainty;
(b) That the transferee has in part performance of the contract take possession of the property or any part thereof, or the transferee, being already in possession continues in possession in part performance of the contract;
(c) That the transferee has done some act in furtherance of the contract; and
(d) That the transferee has performed or is willing to perform his part of the contract.
The provision does not confer a title on the transferee in possession; it only imposes a statutory bar on the transferor. In the instant case, it is not in dispute that an agreement to sell dated 13-11-1992 had been executed by Mangat Ram (the father of the plaintiff) qua the disputed shop in favour of the defendant.
The essential ingredients of the doctrine of part performance had been made out entitling the defendant to seek shelter and protection under this statutory provision. Admittedly in terms of the agreement the defendant was put in possession of the suit shop. The defendant had been given possession of the suit shop; it has also been proved on record that a sum of Rs.2,15,000 had been paid by the defendant to the plaintiff in part performance of the contract; he was also ready and willing to perform his part of the contract and in fact his case was that the balance consideration had also been paid by him to the plaintiff. The case of the plaintiff on the other hand was that this amount had been returned back and a sum of Rs.80,000 had been paid. This document was rightly disbelieved; it did not even bear the signatures of Mangat Ram. In view of agreement to which there was no denial the defendanttransferee is entitled to protect his possession over the suit property taken in part performance of the contract even if the period of limitation to bring a suit for specific performance has expired. The Limitation Act does not extinguish the defence; it only bars the remedy.
Limited Liability Partnership (Winding up and Dissolution) Rules, 2012.
Rule of Law
Mr. Pranab Mukherjee presented before Parliament on March 16 the Budget for the ensuing year and the Finance Bill, 2012. The Finance Bill proposed to amend retrospectively provisions of the Income Tax Act so as to make the transaction between Vodafone and Hutchison for transfer of business in India taxable in India and make Vodafone liable to deduct tax at source. Neither the Finance Bill nor the Budget speech of the Finance Minister makes a reference to the judgment of the Supreme Court, but the provisions are apparently to overturn the decision of the Apex Court in the case of Vodafone.
In effect what has happened is that the Government, having failed at the highest Court of the land in its attempt to tax the transaction, has changed the rule and the law. Can we call this the rule of law?
One is reminded of the decision of the Allahabad High Court setting aside the election of Mrs. Indira Gandhi on account of use of government machinery for her election campaign. The Government then changed the Constitution and validated the election overturning the judgement of the Allahabad High Court.
Many agree that where the whole business is in India and such business is transferred by sale of shares in a company incorporated outside India, by one non-resident to another non-resident, the transaction ought to be taxed in India. But this can be done only when there is such a provision in the Income Tax Act. When you try to tax by making retrospective changes in the law, the faith of taxpayers in India as well as foreign investors is shaken. The question asked is, `Is this the rule of law?’
This is even more pertinent so far as the amendment to section 195 proposing to make Vodafone liable to deduct tax at source is concerned. Vodafone has already acquired the shares and made the payment. The event when tax could have been deducted has already happened. The Supreme Court held that Vodafone was not required to deduct tax at source on the basis of law as it stood then. It is beyond logic to make amendment retrospectively and hold that Vodafone was liable to deduct tax. Is this the rule of law?
While the amendments dealing with Vodafone hogged the limelight, one must not forget that there are about 30 amendments proposing to change the law retrospectively. This is our rule of law!
Recent judgements of the Bombay High Court brought into focus the attempts of the Income Tax Department to recover the tax by coercive measures, throwing out all norms for considering application for stay of demand. All of us are aware of the letter written by the Chairman of the Central Board of Direct Taxes, which openly said that collection of revenue was the single most important criterion for judging the performance of the tax officers and for deciding their postings. Is this the rule of law?
The Finance Bill has proposed General Anti Avoidance Rule (GAAR). Many other countries have GAAR. Apart from the form in which it is coming, there is a genuine fear amongst taxpayers how these provisions will be implemented in the Indian context. The fear is not unfounded considering the transfer pricing assessments and the performance of the Dispute Resolution Panel in that arena. One wonders if the GAAR regime will completely override the rule of law.
It is not only in the field of taxation that the rule of law is given a go-by. Consider the case of terrorist Balwant Singh Rajoana who assassinated Mr. Beant Singh, the former Chief Minister of Punjab. Rajoana has been convicted and sentenced to death. He has not filed any petition for clemency before the President of India. The State of Punjab, which was the prosecutor, is today refusing to carry out the sentence purportedly in the interest of peace and communal harmony. No doubt, there are two views about the death penalty itself. But so long as capital punishment is on the statute book and a person is convicted and awarded the death penalty, the same needs to be implemented. The Government cannot refuse to carry out the sentence. That is not the rule of law. It does not send the right signal to terrorists.
In Uttar Pradesh, Akhilesh Yadav has taken over the reins as the Chief Minister. He won the elections on the promise of good governance. Ironically, he has inducted Raghuraj Pratap Singh alias Raja Bhaiya, a person who has been accused of many serious offences, as a minister – Minister of Jails! One wonders if this augers well for the rule of law?
While we talk about the Tax Department and politicians, we cannot ignore ethics in our own profession. We propose to bring to you articles on ethics and the Code of Ethics by which we are governed. The series will explore the subject and bring to you the nuances of the Code of Ethics and disciplinary proceedings. At least we professionals should follow the rule of law – in letter and spirit.
Editor
“I must be cruel only to be kind.” – Shakespeare in Hamlet quoted by Pranab
Mukherjee in the Budget speech.
Composite contract involving offshore supply of equipment and onshore supply and services should be looked at as an integrated one only when the allocation of profits between the offshore and onshore components is unreasonable and artificially split up. ? Overall position of the entire contract needs to be considered and if no profits are earned by the taxpayer on an overall basis, no income from composite contracts can be taxed in India.
Articles 5 and 7 of India-China DTAA A.Y.: 2007-08. Dated: 22-6-2012
Present for the appellant: G. C. Srivastava
Present for the respondent: Sanjay Kumar
Composite contract involving offshore supply of equipment and onshore supply and services should be looked at as an integrated one only when the allocation of profits between the offshore and onshore components is unreasonable and artificially split up.
Overall position of the entire contract needs to be considered and if no profits are earned by the taxpayer on an overall basis, no income from composite contracts can be taxed in India.
- Taxpayer, a Chinese company (FCO), had entered into various contracts with Indian entities for setting up of turnkey thermal power projects. Each of these contracts were divided into two parts — one for supply of equipment and materials of thermal power plant and second for erection and services of units of main plant along with some common facilities.
- FCO had a project office in India which constituted a permanent establishment (PE) of FCO in India.
- In terms of the contract, consideration receivable by FCO was separately provided in respect of offshore supply and onshore activities.
- FCO contented that consideration for offshore supply of equipment was not taxable in India under the Income-tax Act as well as the DTAA. As regards onshore activities, FCO incurred substantial losses which were reported and claimed in return of its income filed in India.
- The Tax Department treated the entire project as an integrated one and held that contract was manipulated and artificially split up in such a way that FCO’s onshore activities will always result in losses. Further, FCO’s PE had a role in the overall execution of the project and hence, income in India should be computed by attributing profits to the PE under the DTAA as well as transfer pricing provisions under the Income-tax Act.
- The matter was referred to transfer pricing officer who attributed profits in India on both offshore and onshore components resulting in taxable income of FCO in India.
ITAT Ruling:
- Reference was made by the ITAT to the AAR ruling in the case of Alstom Transport SA1 where the AAR held that a composite contract for installation and commissioning cannot be split up into separate parts and the contract has to be read as a whole having regard to its object and the purpose it sought to be achieved. This was held by applying the ‘look at’ principle adopted by Supreme Court (SC) in the case of Vodafone2. The prior decisions of SC3 where a dissecting approach in respect of such contracts was adopted are overruled as the decision in the case of Vodafone will have greater precedence as the same is rendered by a Larger Bench of the SC.
- There may be legitimate issues regarding whether the ‘look at’ approach can be applied in all cases in which separate contracts are entered into for offshore supplies and onshore services. The ratio of the AAR ruling in the case of Alstom Transport can be made applicable in cases where values assigned to onshore services are prima facie unreasonable vis-a-vis values assigned to offshore supplies, which make no economic sense when viewed in isolation with offshore supplies contract. The ratio can be accepted where transactions are to be essentially looked at as a whole and not on a stand-alone basis, when the overall transaction is split in an unfair and unreasonable manner with a view to evade taxes.
- Presence of ‘cross-fall breach clause’ (ensuring that performance of entire project was treated as single-point responsibility and non-performance of any part would be treated as a breach of whole contract) indicates that the contract could be viewed as an integrated one. However, this fact by itself does not mean that consideration for onshore activities is understated to avoid taxes in India.
- In FCO’s case, losses were incurred not only in respect of onshore activities, but also on offshore supplies executed from China. If losses are incurred on the entire project, the mere fact that losses were incurred on onshore activities cannot be a sufficient reason to indicate that the arrangement was tax avoidant.
- Even if the contracts are taken together as an integrated whole and if there are no profits earned under the contracts, there can be no occasion to tax income from such contracts in India.
- The Tax Department needs to examine the matter in light of the fact that FCO has incurred losses on the entire project on an overall basis. The transfer pricing provisions under the Incometax Act would apply only if the basic position of FCO for claiming overall losses is rejected.
Gains arising from sale of shares of an Indian company held by Mauritius Tax Resident are not taxable in India under the India-Mauritius DTAA. ? Provisions of General Anti-Avoidance Rules (GAAR), introduced by the Finance Act 2012, are effective from 1st April 2013 and will apply as and when they come in force, notwithstanding the current ruling, to the proposed transaction.
(2012) 23 taxmann.com
266 (AAR-New Delhi)
Article 13 of India-Mauritius DTAA Dated: 18-7-2012
Justice P. K. Balasubramanyan (Chairman) Present for the appellant: P. J. Pardiwalla, Advocate
V. B. Patel, Kalpesh Maroo, Abhishek Goenka, CA Present for the Department: Somanath S. Ukkali, Bangalore
Gains arising from sale of shares of an Indian company held by Mauritius Tax Resident are not taxable in India under the India-Mauritius DTAA.
Provisions of General Anti-Avoidance Rules (GAAR), introduced by the Finance Act 2012, are effective from 1st April 2013 and will apply as and when they come in force, notwithstanding the current ruling, to the proposed transaction.
- The applicant is a company incorporated in Mauritius (FCO) and holds a valid Tax Residency Certificate (TRC) issued by the Mauritius Tax Authority. FCO is a wholly-owned subsidiary of another Mauritius company (FCO1).
- FCO was set up to invest in growing sectors in India. The funds were pooled from various individual and institutional investors from different parts of the world by FCO1 and invested in the share capital of FCO. The capital was invested by FCO in units and shares of various Indian companies with the sole intention of generating long-term capital appreciation. FCO was registered as a Foreign Venture Capital Investor and had a licence from the Securities Exchange Board of India.
- Out of its investments, FCO proposed to sell shares of an Indian company. The issue before the AAR was whether such gains were exempt in view of the India-Mauritius treaty.
- It was the Tax Department’s contention that FCO’s primary motive was to route investments through Mauritius in order to evade tax in India. Further, treaty benefit would be available only if capital gains were taxable in Mauritius, which was not so in the given fact pattern.
AAR ruling:
- The argument of the Tax Department that it is a case of routing investments through Mauritius to evade capital gains tax in India is not acceptable in light of the SC decision in Azadi Bachao Andolan, where SC held that even if it is a case of treaty shopping, no further inquiry is warranted or justified on the aspect of eligibility of the beneficial capital gains provisions under the Mauritius DTAA provided the Mauritius investor holds a valid TRC.
- The argument that unless capital gain is taxable in Mauritius, the Mauritius DTAA is not acceptable by virtue of the binding decision of the SC in Azadi Bachao Andolan, which had rejected this contention while granting treaty benefits to the taxpayer.
- The Finance Act, 2012 introduced Chapter X-A i.e., GAAR provisions and TRC requirement in the Income-tax Act with effective from 1st April 2013. As the same is not effective till date, it cannot be made applicable at this stage in the current case. However, once GAAR provisions become effective, it will be open to the Tax Department to consider applicability of GAAR provisions, notwithstanding the ruling.
‘Education cess’ is an ‘additional surcharge’ and is included in ‘tax’ under the DTAA, where the language of the DTAA includes ‘surcharge’ as ‘tax’. ? Where the DTAA caps the rate of ‘tax’ payable, cess is not separately payable by taxpayer.
(2012) 22 taxmann.com 310 (Kolkata-Trib.)
Articles 2, 11 and 12 of India-Singapore DTAA
Section 2(11) of Income-tax Act
A.Y.: 2009-10. Dated: 20-6-2012
Present for the appellant: Akkal Dudhewewala
Present for the respondent: P. K. Chakraborty
‘Education cess’ is an ‘additional surcharge’ and is included in ‘tax’ under the DTAA, where the language of the DTAA includes ‘surcharge’ as ‘tax’.
Where the DTAA caps the rate of ‘tax’ payable, cess is not separately payable by taxpayer.
- The taxpayer, a Singapore company (FCO), eligible for India-Singapore treaty benefits, filed a return of income disclosing interest and royalty income. FCO claimed that the said incomes were taxable at flat rate of 15% and 10% under Articles 11 and 12, respectively.
- The Tax Department rejected the taxpayer’s contentions and levied surcharge and education cess in addition to the rates applicable to respective incomes.
ITAT Ruling:
- The expression ‘tax’ is defined in Article 2(1) of the India-Singapore DTAA, in the context of India, to include ‘income tax’ and ‘surcharge’ thereon.
- Article 2(2) of the DTAA covers within its ambit “any identical or substantially similar taxes which are imposed by either contracting state after the date of signature of the present agreement in addition to, or in place of, the taxes referred to in paragraph 1”. Therefore, though education cess was introduced much after the signing of the India-Singapore DTAA on 24th January, 1994, it is covered under the expression ‘tax’.
- Education cess, introduced in India in 2004, is nothing but an additional surcharge and is covered by scope of Article 2 of the DTAA. Accordingly, provisions of Article 11 and 12 will find precedence over provisions of Incometax Act and taxability will be restricted to the specific flat rates provided in the respective income Articles of the treaty.
I Love You Too
I got one such call recently. When I finished the call, I started thinking. I was thinking about myself and my response to people, when they convey to me that they love me. Their love was being taken for granted by me. Their loving action, caring behaviour went unacknowledged. Great opportunities of making others feel happy were being lost by my just not expressing gratitude for the love and kindness received from them on so many occasions. I failed miserably in this test. Their goodness was being taken for granted. I took it as part of the other person’s duty to love me, to be kind to me and go on bestowing happiness on me, without my even acknowledging the same.
Though I am late in doing this, I take this opportunity to thank from the bottom of my heart all those who have contributed to my happiness; be it my family members, my parents, my relatives, my friends, my partners, my professional colleagues, my staff members, my articled students, my teachers, all my seniors in the profession, my co-workers, people who have been working shoulder to shoulder in the work of helping the poor and the needy; but for whom my life would not have been so joyful, so rich in relationships and always full of fun and happiness. These are the people who have added colours to my sunset sky. I thank them all for being a part of my life and contributing to my happiness.
I also thank those who have delighted me with their wonderful songs and music which has enriched my life and made my cup of happiness overflow.
My thoughts travelled further and went to the One who always helps me and all of us, day and night, 24×7, unflinchingly, whether we deserve it or not. He helps us even when we have been really bad and are not deserving. Apart from not thanking Him, I did not even recognize His presence! Yes, I am referring to God, to whom we owe so much and seldom express our gratitude. He is the one who looks after us so well, cares for us, gives us wonderful gifts, but hides Himself from us. Lines of a beautiful song sung by Mukesh come to my mind (I request the reader to listen to this and the other song I have referred to).
But I believe I can do this better by expressing my love to all His creations, by leading an ethical, principled, value-based life, being of help to others for the rest of the life, by wiping a tear and bringing back a smile on those who are needy and poor. This should be the path I must follow. Will you come with me on this path?
I would end with this beautiful quotation:
“Late have I loved thee, beauty so ancient and so new, late have I loved thee! For behold, thou wert within me and I outside; and I sought thee outside and in my unloveliness fell upon these lovely things that thou hast made. Thou wert with me and I was not with thee . . . . .”
Where consultancy charges were paid by ICO to non-resident consultants rendering services on ICO’s offshore projects, source rule exclusion carved out u/s.9(1)(vii)(b) is applicable even though the payments are made from India.
Section 9(1)(viib), section 40(a)(ia) and section 195 of Income-tax Act A.Y.: 2008-09. Dated: 25-6-2012 Present for the appellant: V. S. Jayakumar, Advocate
Present for the respondent: Shaji P. Jacob
Where consultancy charges were paid by ICO to non-resident consultants rendering services on ICO’s offshore projects, source rule exclusion carved out u/s.9(1)(vii)(b) is applicable even though the payments are made from India.
- The taxpayer an Indian company (ICO) is engaged in the business of rendering technical consultancy services for oil exploration industries in India and abroad. For the purposes of carrying out an oil and gas exploration project in Nigeria, ICO paid fees for technical services to non-residents working for ICO in Nigeria.
- ICO did not deduct tax at source while making payments to consultants on the basis of specific exclusion in section 9(1)(vii)(b) of the Incometax Act viz. amount paid for FTS which is utilised for ICO’s business outside India could not be considered as income accruing or arising in India.
- Rejecting the claim, the Tax Department had disallowed the claim for deduction of FTS by holding that there was non-deduction of tax at source.
- The CIT(A) held that though ICO had shown that payments were directly related to the Nigerian project, the fact that the payments were made from India and not from Nigeria left some ambiguity in determining whether the exception provided u/s.9(1)(vii)(b) directly applied to the said consultants and whether the income can be regarded as accrued in India.
ITAT Ruling:
- Technical fees paid to non-resident consultants on ICO’s projects in Nigeria have to be considered as fees paid for services utilised in the business of the taxpayer outside India. This proposition prevails even though the payment is made from India and not from Nigeria. The exclusion u/s.9(1) (vii)(b) is clearly applicable and income earned by non-residents is not taxable in India.
- ICO is justified in holding a bona fide belief that no part of payment had any element of income which was chargeable to tax in India. ICO cannot therefore be fastened with any liability associated with non-deduction of tax at source and consequently the payments cannot be disallowed u/s.40(a)(i) of the Income-tax Act.
Consultancy services that are not taxable under the narrow definition of FTS article of the DTAA, since the conditions laid down therein are not satisfied, cannot be taxed under the other income article of the DTAA. ? Taxation under residuary article of the DTAA is possible only in cases of income which are not covered under any other articles of the DTAA or when the income is taxable within scope of the residuary article itself.
Present for the appellant: D. J. Mehta and Sanjay Kumar
Present for the respondent: D. S. Damle
Consultancy services that are not taxable under the narrow definition of FTS article of the DTAA, since the conditions laid down therein are not satisfied, cannot be taxed under the other income article of the DTAA.
Taxation under residuary article of the DTAA is possible only in cases of income which are not covered under any other articles of the DTAA or when the income is taxable within scope of the residuary article itself.
- Taxpayer, an Indian Company (ICO), is engaged in the business of trading and export of sea- food. ICO availed consultancy services in relation to certain foreign exchange derivative transactions from a Singapore company (FCO).
- ICO was of the view that the consultancy services were rendered outside India and hence the same was not taxable in India under the Incometax Act. In any case, the amount was not taxable under the DTAA, as FCO had not ‘made available’ any services to ICO. ICO made payments to FCO without deducting tax at source.
- The Tax Department regarded the amount as taxable under the Income-tax Act as the services were utilised by ICO in India. While it accepted that the payments were not taxable under the FTS article of the DTAA as services did not meet make available test, it was contended that as taxability failed under specific articles of the DTAA, its taxability automatically arises under the residuary article i.e., ‘Other Income’ article of the DTAA.
ITAT Ruling:
The ITAT rejected the Tax Department’s contentions and held:
- Taxing rights for various types of income are assigned to the source state upon fulfilment of conditions laid down in respective clauses of the DTAA. When those conditions are not satisfied, the source state does not have the taxing right in respect of the said income.
- When a DTAA does not assign taxability rights of a particular income to the source state under the respective article, such taxability cannot be invoked under the other income article. The other income article covers only income which is either covered under specific scope of that article itself or such income which is not covered within the scope of any other article of the DTAA.
- Under the DTAA, FTS is taxable under Article 12 if the services enable the person acquiring the services to apply technology contained therein. FCO had rendered consultancy services and it did not involve any transfer of technology, nor did it enable ICO to apply technology contained therein. The payments were in the nature of business profits and as FCO did not have a PE in India, the same was not liable to tax in India.
- In the facts of the case, the income could potentially be covered by the FTS article or business profits article or independent personal services article. However, the fees may not be taxed as the conditions prescribed in the respective articles are not satisfied. If income is covered by one or more specific articles, the residuary (other income) article does not apply.
Notification No. 25/2012, S.O. 1453(E) dated 2-7-2012 — Income-tax (Seventh Amendment) Rules, 2012 — Amendment in Rule 12 and substitution of forms ITR 5 and ITR 6.
(a) assets (including financial interest in any entity) located outside India; or
(b) signing authority in any account located outside India. The Rule is amended to provide that not ordinary residents can use SAHAJ — ITR 1 and SUGAM — ITR 4S though they have assests located outside India and have signi
Instructions to AOs to rectify/reconcile disputed arrears in demand irrespective of limitation of four years u/s.154(7) — Circular No. 4, dated 20-6-2012.
In certain cases, assessees have disputed the figures of arrear demands shown as outstanding against them in the records of the Assessing Officers. The Assessing Officers have expressed their inability to correct/reconcile such disputed arrear demand on the ground that the period of limitation of four years as provided u/ss.(7) of section 154 of the Act has expired. Further, in some cases, the Assessing Officers have uploaded such disputed arrear demand on the Financial Accounting System (FAS) portal of Centralised Processing Center (CPC), which has resulted in adjustment of refund arising out of processing of returns against such arrear demand which has been disputed by such assessees on the grounds that either such demand has already been paid or has been reduced/eliminated in the appeals, etc. The arrear demands, in these cases also were not corrected/reconciled for the reason that the period of limitation of four years has elapsed. The CBDT has now authorised the Assessing Officers to make appropriate corrections in the figures of such disputed arrear demands after due verification/reconciliation and after examining the same on merits, whether by way of rectification or otherwise, irrespective of the fact that the period of limitation of four years as provided u/s.154(7) of the Act has elapsed.
Notification No. 25/2012, S.O. 1453(E) dated 2-7-2012 — Income-tax (Seventh Amendment) Rules, 2012 — Amendment in Rule 12 and substitution of forms ITR 5 and ITR 6.
Rule 12 provided that the prescribed ITR Form SAHAJ — ITR 1 and SUGAM — ITR 4S could not be used by a resident individual or a HUF to file his return of income, if he had:
(a) assets (including financial interest in any entity) located outside India; or
(b) signing authority in any account located outside India.
The Rule is amended to provide that not ordinary residents can use SAHAJ — ITR 1 and SUGAM — ITR 4S though they have assests located outside India and have signing authority in any account located outside India.
Agreement for exchange of information for collection of taxes between India and Jersey — Notification No. 26/2012, dated 10-7-2012. DTAA between India and Norway notified — Notification No. 24/2012, dated 19-7-2012.
Direct Tax Press Release No. 402/92/2006-MC (15 of 2012), dated 20-7-2012.
The CBDT vide its Notification No. 9/2012, dated 17th February, 2012 has exempted salaried employees from the requirement of filing the returns for A.Y. 2012-13.
The exemption is applicable only if all the following conditions are fulfilled:
- Employee has earned only salary income and income from savings bank account and the annual interest earned from savings bank account is less than Rs.10 thousand.
- The total income of the employee does not exceed Rs.5 lakh (Total income means gross total income less deductions under Chapter VIA).
- The employee has reported his PAN to the employer.
Section 32 — Claim for depreciation on amount paid for acquisition of the non-compete right — Whether allowable — Held, Yes.
Whether the CIT(A) was right in allowing depreciation on non-compete fee of Rs.4.55 crore by treating the same as intangible asset u/s.32(1)(ii). According to the AO, the fees paid for obtaining non-compete right from the vendor was not an intangible asset u/s.32(1)(ii) for the following two reasons:
(a) It is not covered under the phrase ‘any other business or rights of similar nature’ used in the provisions; and
(b) It is not capable of and transfer like other intangible assets of know-how. Before the Tribunal, the Revenue relied on the order of the AO and placed reliance on the following decisions:
- R. Keshvani v. ACIT, (2009) 116 ITD 133 (Mumbai);
- Srivatsan Surveyors (P) Ltd. v. ITO, (2009) 125 TTJ 286 (Chennai);
- CIT v. Hoogly Mills Co. Ltd., (2006) 157 Taxman 347 (SC); and
- Bharatbhai J. Vyas v. ITO, (2006) 97 ITD 248 (Ahd.).
The Tribunal agreed with the views of the CIT(A) that the acquisition of the non-compete right by the assessee from the vendor for a period of 10 years is a right in the nature of an intangible capital asset which is capable of being transferred. According to it, it was further proved by the fact that this right had been further transferred by the assessee at the time of its amalgamation with another company. As regards the reliance placed by the Revenue on various judicial decisions, the Tribunal noted that, except one judgment of the Tribunal rendered in the case of Srivatsan Surveyors (P) Ltd., the other judgments cited by the Revenue are not regarding the allowability of depreciation on non-compete fees. As regards the Tribunal decision rendered in the case Srivatsan Surveyors (P) Ltd., the Tribunal noted that the issue was decided against the assessee on the basis that the depreciation on restrictive covenant is ‘a right in persona’ and not a ‘right in rem’ and hence, the depreciation was not allowed.
However, the Tribunal noted that in a subsequent decision of the Chennai Tribunal in the case of ITO v. Medicorp Technologies India Ltd., (2009) 30 SOT 506 on the similar issue, the case was decided in favour of the assessee. As held by the Apex Court in the case of CIT v. Vegetable Products Ltd., (1073) 88 ITR 192 (SC), the Tribunal observed that in cases where there are two views possible, the view favourable to the assessee should be followed. Accordingly, the issue was decided in favour of the assessee by following the Tribunal decision rendered in the case of ITO v. Medicorp Technologies India Ltd.
Section 14A, Rule 8D — Exercising jurisdiction in the larger interest of justice, ITAT directed the AO to compute disallowance u/s.14A @ 2% of the exempt income instead of 4.06% as computed by the AO.
ITAT ‘J’ Bench, Mumbai
Before B. Ramakotaiah (AM) and S. S. Godara (JM)
ITA No. 3411/M/2009
A.Y.: 2005-06. Decided on: 8-6-2012
Counsel for assessee/revenue: Hiro Rai/Rupinder Brar
Section 14A, Rule 8D — Exercising jurisdiction in the larger interest of justice, ITAT directed the AO to compute disallowance u/s.14A @ 2% of the exempt income instead of 4.06% as computed by the AO.
The assessee involved in business of investments and dealing in shares, securities, filed its return declaring total income of Rs.14,60,52,720. In the said return it had shown dividend income of Rs. 76,49,289 as exempt income. In response to the show-cause notice issued by the AO as to why expenses in relation to earning of dividend income should not be disallowed, the assessee explained that it had not incurred any direct expenditure. The AO rejected this contention and computed the disallownce to be Rs.4,36,027 i.e., 4.06% of dividend income.
Aggrieved the assessee preferred an appeal to the CIT(A) who directed the AO to recompute the disallowance by following Rule 8D of the Incometax Rules, 1963.
Aggrieved, the assessee preferred an appeal to the Tribunal where on behalf of the assessee it was contended that for the assessment year under consideration, Rule 8D is not applicable and that the Tribunal by exercising jursidiction u/s.254(1) of the Act, should determine the reasonable expenditure in peculiar circumstances of the case.
Held:
The Tribunal held that the CIT(A) was not correct in directing the AO to recalculate the disallowance by following Rule 8D. Keeping in view the fair statement of the AR as well as exercising jurisdiction in the larger interest of justice, the Tribunal directed the AO to compute the disallowance @ 2% of the exempt income instead of 4.06% which the Tribunal felt should meet the ends of justice.
Section 54G — Exemption of capital gains on transfer of assets in cases of shifting of industrial undertaking to non-urban area — Investment by assessee in land and building for its business in non-urban area — Whether is it necessary that the investment in land and building in non-urban area is for the purposes of the business of the industrial undertaking transferred — Held, No.
ITAT ‘J’ Bench, Mumbai
Before B. Ramakotaiah (AM) and S. S. Godara (JM)
ITA No. 4428/Mum./2008
A.Y.: 2004-05. Decided on: 27-6-2012 Counsel for revenue/assessee: Rupinder Brar/Mayur Kisnadwala
Section 54G — Exemption of capital gains on transfer of assets in cases of shifting of industrial undertaking to non-urban area — Investment by assessee in land and building for its business in non-urban area — Whether is it necessary that the investment in land and building in non-urban area is for the purposes of the business of the industrial undertaking transferred — Held, No.
The assessee-company was carrying on its business of manufacturing activity at its leased premises in Mumbai for more than 45 years. Due to severe competition and high operational overheads in Mumbai, the assessee incurred losses and the activity was commercially not feasible. During the financial year 1999-2000, it decided to shift its undertaking to a non-urban area. As the plant and machinery was very old, the assessee sold them immediately, but for surrendering the tenancy rights it took some time and after protracted negotiations with the lessor, the leased premises on which the industrial undertaking operated was finally surrendered on 1-10-2003 and compensation of Rs.4.12 crore was received. It earned capital gain of an equivalent amount as the cost of acquisition of the leased premise was nil. Out of this amount the assessee invested Rs.1.4 crore in Capital Gain Account Scheme and Rs.1.14 crore in purchase of land and building in non-urban area. The assessee claimed deduction u/s.54G of the amount of Rs.2.54 crore and offered the balance amount as taxable income.
According to AO, the assessee sold its entire plant and machinery in the financial year 1999-2000 and since there was no existence of an undertaking, having sold the entire plant & machinery, the claim u/s.54G, which provides for exemption for shifting of industrial undertaking from urban area to non-urban area is not eligible to the assessee. However, the CIT(A) on appeal allowed the claim of the assessee.
Held:
On closer reading of the provisions of section 54G the Tribunal noted that whereas u/s.54G(1)(a), the requirement is that the new machinery or plant has to be purchased for the purposes of the business of the industrial undertaking, section 54G(1)(b) merely requires that the acquisition of building or land or construction of a building should be for the purposes of its business in such non-urban area. In other words, the phrase ‘of the industrial undertaking’, which is there in clause 1(a) is conspicuously missing in clause 1(b). It further compared the provisions of section 54G with section 54D and noted that while section 54D mandates that, for the capital gains to exempt, the new land or building, have to be used only for either shifting or re-establishing or establishing an industrial undertaking (and no other purpose), the provisions of section 54G of the Act permits the use of capital gains for acquiring land or building or constructing building for the purposes of (any) business in the non-urban area. Thus, according to the Tribunal, the provisions of section 54G can be interpreted that assessee should carry on any business in non-urban area. If the amounts are utilised for acquisition of assets for the purpose of its business, this should qualify for the purpose of exemption u/s.54G as there is no requirement that the land and building should be used for the purpose of the business of industrial undertaking.
The Tribunal also did not agree with argument of the AO that the assessee’s industrial undertaking ceased to exist in 1999-2000. According to it, the assessee was in the process of shifting and even the section itself provides that shifting was ‘in course of or in consequence of’ of such industrial undertaking.
Section 80IB(10) — If conditions prescribed u/s.80IB(10) are satisfied, claim cannot be denied merely because the assessee had not carried on construction activity itself.
Abdul Khader v. ACIT
A.Y.: 2006-07. Dated: 30-4-2012
Section 80IB(10) — If conditions prescribed u/s.80IB(10) are satisfied, claim cannot be denied merely because the assessee had not carried on construction activity itself.
The assessee, a builder and developer, was owner of an agricultural land which was converted into stock-in-trade and put the same for development by entering into a joint development agreement. Under the joint development agreement, the assessee contributed land and incurred expenses for statutory approvals. The assessee did not carry on construction activity. The assessee was entitled to 24% share in the said project. The assessee sold 49 flats which it got as its share and claimed as deduction u/s.80IB(10).
The Assessing Officer denied the claim on the ground that the assessee had not carried on the construction activity. This was confirmed by CIT (A). The assessee preferred an appeal to the Tribunal.
Held:
The Tribunal noted that the assessee contributed land as its contribution of capital and incurred initial expenses for development and building of housing project like sanction of plan, getting the electricity and water connection by making the payments to BWSSB and KEB, etc. It also noted that it is not the case of the Department that the project was not approved or developed and built by the assessee. The only reason for denying the deduction u/s.80IB(10) was that the assessee had not carried out construction activity himself.
The Tribunal also noted that on a joint reading of s.s (10) of section 80IB and Explanation thereto it is clear that deduction is allowable to an undertaking developing and building housing project approved, it is nowhere mentioned that, construction has to be carried out by the undertaking. Moreover, the Explanation clarified that any undertaking which has executed housing project as a works contract awarded by any person is not eligible for claiming this deduction, which clearly shows that even if any undertaking is constructing the housing project under a works contract entered by a person is not eligible for deduction. The only condition for claiming deduction u/s.80IB(10) is that the undertaking is developing and building housing projects approved by a local authority.
It observed that in such type of cases, getting the approval and plan sanction is the first and initial stage which was to be taken by the assessee and for that purose the assessee was required to make investments. So, it cannot be said that assessee did not make any investment for the project under consideration.
The Tribunal held that the deduction u/s.80IB(10) cannot be denied merely on the basis that the assssee did not construct himself. Considering the totality of the facts and the ratio of the decision of Jurisdictional High Court in the case of CIT v. Shravanee Constructions, (2012) 22 taxmann. com 250 (Kar.), the Tribunal set aside the order passed by the CIT(A) and directed the AO to allow deduction u/s.80IB(10) of the Act.
Exemption to small service providers — Notification No. 33/2012-ST, dated 20-6-2012.
Further, the definition of ‘aggregate value’ is amended to mean the sum total of value of taxable services charged in the first consecutive invoices issued during a financial year, but does not include value charged in invoices issued towards such services which are exempt from whole of service tax leviable thereon under any other notification.
Penalty — For not furnishing Vat Audit Report within prescribed time — Discretionary and not automatic — Failure to consider dealer’s explanation — Order set aside — Section 61(2) of The Maharashtra Value Added tax Act, 2002.
The dealer could not file Vat Audit Report in time as such the penalty u/s.61(2) of the Act was levied by the Deputy Commissioner of Sales Tax without considering the explanation offered by the dealer for delay in filing the report and held that the penalty u/s.61 of the Act is automatic. Both the Tribunal and the Joint Commissioner of Sales Tax upheld the penalty order. The dealer filed appeal before the Bombay High Court against the order of the Tribunal.
Held
The Deputy Commissioner of Sales Tax had not furnished any reasons for rejecting explanation offered by the dealer while levying penalty and the Joint Commissioner of Sales Tax in appeals had proceeded on the wrong premise that the levy of penalty is automatic and that the reasons furnished by the dealer need not be considered at all. The Tribunal also seems to proceed on that basis. U/s.61(2) of the act penalty is attracted as soon as the wrongful act was committed, but that does not conclude the exercise of the discretion by the assessing authority. The levy of penalty is not automatic. The assessing authority is duty bound to consider the reasons which are furnished by the dealer and to inquire in to whether those reasons are genuine and bona fide. The Tribunal also dealt with reasons, but its order is based on conjecture. The High Court accordingly set aside the order of the Tribunal and remanded back to the assessing authority to pass fresh order and to consider the reasons furnished by the dealer while passing the order.
The assessee was engaged in the business of construction of buildings
On an appeal filed by the Revenue, the Karnataka High Court upheld the decision of the Tribunal and held that there was no illegality in the order of the Tribunal.
Installation charges not recovered separately in case of sale and installation of solar systems — The Department levied service tax on notional basis — 33% of the total consideration — Held, Service tax applicable on installation portion even if not charged separately — Matter remanded back to ascertain the correct amount of the installation service based on the data sheet submitted by the assessee.
The appellant a manufacturer of solar water heater systems sold the same and the value also included the installation of such system at the site of the buyer. Central excise duty was not charged on the same in view of the exemption to solar systems. No separate consideration was charged in the invoice for installation. Simultaneously, the appellant was selling solar systems to distributors also who were charging for installation separately from the end-customers. The Revenue levied service tax on notional value of activity pertaining to installation on the basis of 33% of the invoice amount. The appellant argued that no service tax should be levied. Alternatively, the service tax if at all levied must be on actual service element pertaining to installation activity based on cost data provided by the appellant.
Held:
In view of the collection of installation charges separately by the distributors in case of sales through such distributors, it was held that service tax is applicable on the installation portion even if charges for the same have not been collected separately. The matter was remanded back to the adjudicating authority to quantify the amount of installation charges on which service tax can be levied, based on the data provided by the appellant.
CENVAT credit — Courier services for sending documents, cheques, demand drafts and business enquiries — Held, eligible for CENVAT credit.
CENVAT credit of service tax taken on courier services was denied and penalty was imposed.
Held:
The lower authorities had not considered the wide gamut of the definition of input service. In view of the wide gamut of the definition and the decisions of the Tribunal in cases of Cadila Healthcare, (2010) 17 STR 134 as well as Meghachem Industries, (2011) 23 STR 472, the Tribunal allowed the appeal of the assessee.
Business expenditure: Capital or revenue expenditure: Section 37 of Income-tax Act, 1961: A.Y. 1993-94: Construction business: Amount spent for acquiring unfinished works and inventories of another company: Revenue expenditure.
On appeal by the assessee, the Madras High Court reversed the decision of the Tribunal and held:
“(i) What was transferred was in the nature of stockin- trade and not the entire building division of the transferor company. There were no clauses to lead to the inference that with the transfer of the ongoing projects awaiting agreements to be signed, the transferor company had transferred its entire business.
(ii) The expenditure was deductible as revenue expenditure”
Assessment giving effect to Tribunal order: Scope: A.Y. 1994-95: Capital gains: Sale of property and factory building: Sale consideration accepted by AO: Tribunal referring back the question of bifurcation and apportionment of sale consideration between land and building: AO enhancing sale consideration: Not justified.
On appeal by the assessee, the Delhi High Court reversed the decision of the Tribunal and held as under:
“(i) The Tribunal had referred back the question of bifurcation and apportionment of the sale consideration of Rs.17.5 lakh as between the land and the factory building. To this extent, the report of the Valuation Officer was required.
(ii) The Departmental Valuation Officer and the Assessing Officer were not required or permitted by that order to go into to question and examine the total sale consideration as the assessee had applied under Chapter XX-C and the Appropriate Authority had accepted the sale consideration mentioned by the assessee. The sale consideration and the quantum thereof was never in question or doubt. This was not the aspect to be reexamined.
(iii) Thus the enhancement by the Assessing Officer of the sale consideration from 17.5 lakh to Rs.21,42,502 was not justified and as per law.
(iv) According to the report of the Depatmental Valuation Officer, the bifurcation and apportionment of the sale consideration towards the land and the factory building by the assessee had been accepted.
(v) In view of the above, the question of law is answered in favour of the assessee appellant.”
Activity of retrofitting of CNG/LPG kits as authorised by Regional Transport Authority considered liable for service tax by Revenue — Paid service tax on receiving intimation through sales tax on same amount charged for kits fitted by them —Penalties set aside.
The appellant authorised by Regional Transport Authority retrofitted CNG/LPG engine kits. The Revenue took a view that this was liable for service tax as erection, commissioning and installation service. On being pointed out in August, 2008, the appellant obtained registration and paid the same in September 2008. This was done despite the fact that sales tax in the full value of kits was paid by the assessee and invoice did not show fitting charges separately. Four months later, a show-cause notice was issued proposing to levy penalty u/s.76, 77 and 78 of the Finance Act, 1994.
Held:
Considering the facts and circumstances wherein the assessee promptly paid service tax without contesting the liability on the ground of payment of VAT on full value established their bona fides. The case was considered fit one for which section 73(3) was applicable whereby no show-cause notice was required to be issued or section 80 could have been extended. Penalties were set aside.
Assessment: Validity: Sections 143(2), 143(3) and 292B of Income-tax Act, 1961: A.Y. 2002-03: Assessment in the name of non-existing amalgamating company is not valid
On appeal by the assessee, the Delhi High Court reversed the decision of the Tribunal and held:
“(i) Assessment in the name of a company which has been amalgamated with another company and stands dissolved is null and void.
(ii) Assessment framed in the name of a non-existing entity is a jurisdictional defect and not merely a procedural irregularity of the nature which can be cured by invoking the provisions of section 292B of the Act.”
Obtained visa and passport for individuals — Matter covered under CBEC Circular — Appeal was allowed.
The appellant being a travel agent provided services of obtaining visa and passports for a fee/ service charge to individuals. The appellant pleaded that the matter was covered later by CBEC Circular No. 137/6/2011, dated 20-1-2011 which had clarified that these services do not fall under any category of taxable services.
Held:
The service was not taxable and the order was set aside.
? Refund — Accumulated CENVAT credit — Not pertaining to the month of exports — Held, refund of credits pertaining to past periods can be allowed in subsequent months. ? Eligible documents — Input service invoices raised on head office — Held, credit can be allowed if the services received by the assessee. ? Ineligible documents — Photocopies of invoices, invoices not containing name of the assessee — Credit cannot be allowed. ? Eligible documents — Documents in the name of another entity but o<
The respondent was a 100% EOU engaged in the exports of silk fabrics. Most of their production was exported and therefore, the respondent was not able to utilise the accumulated credits and they filed refund claim for such credits under Rule 5 of the CENVAT Credit Rules, 2004 (CCR). The Department rejected the claim since the claim pertained to credits for the input services which had not been used in goods actually exported, while relying on certain Tribunal decisions in Ace Techniks v. Commissioner, (2009) ELT 92 (T). Moreover, certain credit was denied on input service invoices which were raised on head office or where only photocopies of invoices were available or where the invoices were not in the name of the respondent. The respondent argued that in view of CBEC Circular dated 19-1-2010 and the respondent’s own case reported in (2010) 20 STR 219 (Tri.-Bang.), the credit pertaining to a period can be claimed in the subsequent period.
Held:
Quoting Para 3.3 of CBEC Circular dated 19-1-2010, the Tribunal held that there is no bar on refund for the credits pertaining to the input services availed in the previous period. It was also observed that the case of Ace Techniks cited by the Revenue was in relation to inputs and not input services and therefore, not applicable to this case. Regarding eligible documents the Tribunal held as under:
- Input service invoices raised on head office — held, credit can be allowed if the services are received by the respondent and the respondent can satisfy the authorities that the services have been received by them.
- Photocopies of invoices, invoices not containing name of the assessee — held, such documents are not eligible documents.
- Documents in the name of another entity but on account of the assessee — held, credit cannot be denied on such invoices in view of the Tribunal’s decision in the case of the respondent’s own case reported in (2010) 20 STR 219 (Tri.-Bang.).
OffShore Transaction of Transfer of Shares Between Two NRs Resulting in Change in Control of Indian Company — Withholding Tax Obligation and Other Implications
International Holdings B.V. v. Union of India & Anr.- 341 ITR 1 (SC)
3.1 As stated in Part I of this write-up (March, 2012), the Bombay High
Court took the view that the essence of the transaction between the
parties was a change in the controlling interest in HEL, which
constituted a source of income in India. According to the High Court,
the transaction between the parties covered within its sweep, diverse
rights and entitlements for which the consideration is paid. Based on
this dissecting approach, the High Court left the issue of apportionment
of consideration open to be decided by the Revenue. The High Court also
held that VIH by the diverse agreements that it entered into has nexus
with Indian jurisdiction. Accordingly, the High Court held that the
proceedings initiated by the Revenue Authorities did not lack
jurisdiction and VIH was under an obligation to deduct TAS while making
the payment in this case.
3.2 The said view of the Bombay High
Court came up for consideration before the Apex Court at the instance of
VIH. Effectively, the Apex Court was required to consider the true
nature of the transaction between the parties, the taxability thereof
and the withholding tax obligations of VIH including the jurisdiction of
the Revenue in that respect, as well as the liability of VIH to be
treated as representative assessee u/s.163.
3.2.1 In this case,
views and the observations of the Court are given in two separate
judgments i.e., one by two Judges, namely, Shri S. H. Kapadia, CJ and
Shri Swatanter Kumar, J (Majority Judgment), and another by Shri K. S.
Radhakrishnan, J (Concurring Judgment). In both the judgments,
conclusions are the same. However, there are some differences in the
reasons given for the same conclusions, particularly in the context of
applicability of section 195. In the Concurring Judgment, certain
additional observations have also been made. On all major issues,
learned judge of the Concurring Judgment has expressly stated that he
fully concurs with the views expressed in the Majority Judgment.
However, the Majority Judgment is salient on the views expressed and
various observations made in the Concurring Judgment. This write-up is
primarily based on the Majority Judgment.
Facts relating to nature of transaction
3.3
For the purpose of deciding the issues, the Court noted the brief facts
of the case and various events which took place (referred to in paras
2.1 to 2.3.2 of Part I of this write-up).
3.3.1 After referring
to all relevant events which had taken place and various agreements and
arrangements made by the parties for the purpose of giving effect to the
transaction and the procedures followed for compliance of Indian law,
the Court observed that vide settlement agreement HTIL agreed to dispose
of its direct and indirect equity, loan and other interests and rights
in and related to HEL, to VIH. The Court then noted that these rights
and interests are enumerated in the order of Revenue dated 31-5-2010,
the details of which are given in para 35 of the Majority Judgment.
3.3.2
The Court also referred to the arrangements made between VIH and Essar
Group which, inter alia, include various terms agreed for regulating the
affairs of HEL and the relationship of shareholders of HEL including
the arrangement of put option wherein, the Essar Group can require VIH
to buy from Essar Group shareholders at their option, the shares held by
them, etc.
3.3.3 The Court then noted that on receipt of the
approval from FIBP on 7-5-2007, the board resolutions were passed by CGP
on 8-5-2007 and its downstream companies, consequent to which, various
steps were taken to give an effect to the transaction the detail of
which are appearing at para 46 of the Majority Judgment.
Tax avoidance/evasion — Settled position
3.4
After referring to the facts relating to the nature of transaction
between the parties, the Court considered the correctness of the
judgment of the Apex Court in the Azadi Bachao Andolan (263 ITR 706) as
the same was questioned by the Revenue on the ground that in that case,
the Division Bench of the Apex Court has not considered certain aspects
of the judgment in the case of McDowell & Co. Ltd. (154 ITR 148).
For this purpose, the Court noted that in that case two aspects were
dealt with viz. (i) validity of Circular issued by the CBDT concerning
Mauritius Tax Treaty and (ii) the concept of tax avoidance/evasion and
stated that in the context of this case, the Revenue has only raised
objection with regard to the second aspect i.e., tax avoidance/ evasion.
3.4.1 The Court then noted the principle laid down in the case
of Duke of Westminster in UK, popularly known as Westminster Principle,
and noted that the said principle states that “given that a document or
transaction is genuine, the Court cannot go behind it to some supposed
underlined substance”. The Court then took note of the fact that the
said principle has been reiterated in subsequent English Court judgments
as ‘the cardinal principle’. Explaining the effect of such subsequent
judgments, the Court stated that it is the task of the Court to
ascertain the legal nature of the transaction and while doing so it has
to ‘Look at’ the entire transaction as a whole and not to adopt
dissecting approach, (‘Look at’ test). The Court then observed that in
the present case, the Revenue has adopted a dissecting approach.
3.4.2
The Court then stated that the majority judgment in McDowell’s case
held that “Tax planning may be legitimate provided it is within the
framework of law ‘. . . . . however’ colourable device cannot be a part
of tax planning and it is wrong to encourage or entertain the belief
that it is honourable to avoid the payment of tax by resorting to
dubious methods.”
3.4.3 The Court then concluded that the
judgment in the case of Azadi Bachao Andolan has been correctly decided
and held as under on this aspect (page 34, para 64):
“. . . . .
In our view, although Chinnappa Reddy, J. makes a number of observations
regarding the need to depart from the ‘Westminster’ and tax avoidance —
these are clearly only in the context of artificial and colourable
devices. Reading McDowell, in the manner indicated hereinabove, in cases
of treaty shopping and/or tax avoidance, there is no conflict between
McDowell and Azadi Bachao or between McDowell and Mathuram Agrawal.”
Tax
aspects of holding structure
the Court first noted that corporate bodies are treated as separate
entities. This is also recognised under the Act in the matter of
corporate taxation. The companies are viewed as economic entities with
legal independent vis-à-vis their shareholders. It is also fairly well
settled that for tax treaty purpose, a subsidiary and its parent are
also totally separate and distinct taxpayers.
3.5.1 The Court then noted that it is generally accepted that the group parent company is involved in giving principal guidance to group. The fact that a parent company exercises shareholder’s influence on its sub-sidiaries does not generally imply that subsidiaries are to be deemed residents of the State in which the parent company resides. However, if subsidiary’s executive directors are no more than puppets, then the turning point in respect of subsidiary’s residence come about. If the transaction is arranged through abuse of organisation form/legal form and without reasonable business purpose to avoid tax implications, then the Revenue may disregard the form of the arrangement or structure, recharacterise the arrangement according to its economic substance and determine tax implications accordingly on actual controlling enterprise. This should be decided on overall facts of each case.
In this context, the Court further stated as under (pages 35/36, para 67):
“…..Thus, whether a transaction is used principally as a colourable device for the distribution of earnings, profits and gains, is determined by a review of all the facts and circumstances surrounding the transaction. It is in the above cases that the principle of lifting the corporate veil or the doctrine of substance over form or the concept of beneficial ownership or the concept of alter ego arises. There are many circumstances, apart from the one given above, where separate existence of different companies, that are part of the same group, will be totally or partly ignored as a device or a conduit (in the pejorative sense).”
3.5.2 The Court then noted that it is common practice in international law, which is the basis of international taxation, for foreign investors to invest in Indian companies through an interposed foreign holding or operating company, such as CI or Mauritius-based company, for both tax and business purpose. In doing so, foreign investors are able to avoid lengthy approval and registration processes required for a direct transfer of equity interest in a foreign-invested Indian company.
3.5.3 The Court then further noted that the taxation of such holding structures gives rise to issue such as double taxation, tax deferrals, tax avoidance and application of anti-avoidance rules (GAAR). The Court then stated that in the present case, it is concerned with concept of GAAR (and not with the treaty shopping) which is not new to India since India already has a judicial GAAR, like some other jurisdictions. The Court then noted that lack of clarity and absence of appropriate provisions in the statute and/or in the treaty regarding the circumstances in which the judicial GAAR would apply has generated litigation in India. The Court then took the view that when it comes to taxation of a holding structure, at the threshold, the burden is on the Revenue to establish the abuse, in the sense of tax avoidance in the creation and/or use of such structures. In this context, the Court then observed as under (pages 36/37, para 68):
“…….In the application of a judicial anti-avoidance rule, the Revenue may invoke the ‘substance over form’ principle or ‘piercing the corporate veil’ test only after it is able to establish on the basis of the facts and circumstances surrounding the transaction that the impugned transaction is a sham or tax avoidant. To give an example, if a structure is used for circular trading or round, tripping or to pay bribes, then such transactions, though having a legal form, should be discarded by applying the test of fiscal nullity. Similarly, in a case where the Revenue finds that in a holding structure an entity which has no commercial/business substance has been interposed only to avoid tax, then in such cases applying the test of fiscal nullity it would be open to the Revenue to discard such inter-positioning of that entity. However, this has to be done at the threshold….’’
3.5.4 The Court then reiterated that for the above purposes, the Revenue must apply ‘Look at’ test and the Revenue cannot start with the question as to whether the impugned transaction is a tax deferment/savings device, but that it should apply the ‘Look at’ test to ascertain its true legal nature. While concluding on the issue of tax avoidance, the Court stated as under (Page 37, para 68):
“……. Applying the above tests, we are of the view that every strategic foreign direct investment coming to India as an investment destination, should be seen in a holistic manner. While doing so, the Revenue/ Courts should keep in mind the following factors: the concept of participation in investment, the duration of time during which the holding structure exists; the period of business operations in India; the generation of taxable revenues in India; the timing of the exit; the continuity of business on such exit. In short, the onus will be on the Revenue to identify the scheme and its dominant purpose. The corporate business purpose of a transaction is evidence of the fact that the impugned transaction is not undertaken as a colourable or artificial device. The stronger the evidence of a device, the stronger the corporate busi ness purpose must exist to overcome the evidence of a device.”
Whether section 9 is a ‘Look through’ provision and covers ‘indirect transfer’ of Indian Capital Asset
3.6 The Court then dealt with the contention of Rev-enue that u/s.9(1)(i) can ‘Look through’ the transfer of shares of a foreign company holding shares in an Indian company and treat such transfer as equivalent to transfer of shares of the Indian company on the premise that section 9(1)(i) covers direct and indirect transfer of capital asset.
3.6.1 Dealing with the above issue, the Court noted that section 9(1)(i) gathers in one place various types of income and broadly there are four items of income. The income dealt with in each sub-clause is distinct and independent of the other and the requirements of bringing income within each sub-clause are separately stated. In the case under consideration, the Court is concerned with the last sub-clause of section 9(1)(i), which refers to income arising from ‘transfer of a capital assets situated in India’. This provides a fiction which comes into play only when the income is not charged to tax on the basis of receipt in India, as receipt of income in India by itself attracts tax whether the recipient is a resident or non-resident. This fiction is introduced to avoid any possible arrangement on the part of the non-resident vendor that profit accrued or arose outside India on the basis that the contract to sell is executed outside India. A legal fiction has a limited scope and when the language is unambiguous and admits no doubt, it cannot be expanded by giving purposive interpretation.
3.6.2 According to the Court, section 9(1)(i) cannot by a process of interpretation be extended to cover indirect transfers of capital assets situated in India as the Legislature has not used the words ‘indirect transfer’ in section 9(1)(i). The words directly or indirectly used in section 9(1) (i) go with the income and not with the transfer of capital assets. For this purpose, the Court also drew support from the language of the provisions of section 163(1)(c) and the proposal contained In the Direct Tax Code Bill, 2010 as well as its earlier draft version of 2009. Based on this, while taking a view that indirect transfer is not covered within the said sub-clause of section 9(1)(i), the Court finally concluded on this contention of the Revenue as under (Page 40, para 71):
“…….The question of providing ‘look through’ in the statute or in the treaty is a matter of policy. It is to be expressly provided for in the statute or in the treaty. Similarly, limitation of benefits has to be expressly provided for in the treaty. Such clauses cannot be read into the section by interpretation. For the foregoing reasons, we hold that section 9(1)(i) is not a ‘look through’ provision.”
Whether there was extinguishment of the property rights of HTIL?
3.7 The Court then dealt with the primary argument advanced on behalf of the Revenue that SPA, commercially construed, evidences a transfer of property rights of HTIL by their extinguishment. According to the Revenue, HTIL’s property rights (i.e., right of control and management over HEL and its subsidiaries) got directly extinguished under SPA and accordingly, there was a transfer of capital assets situated in India. For this purpose, the Revenue relied on various features of SPA and on various arrangements entered into between the parties. It was the contention of the Revenue that HTIL possesses de facto control over HEL and its subsidiaries and such control was the subject-matter of transfer under SPA.
3.7.1 For the purpose of dealing with the above contentions of the Revenue, the Court reiterated the position that it is concerned with the transaction of sale of share and not with the sale of assets, item wise. In this context, the Court observed as under (Page 41, para 73):
“…….. The facts of this case show sale of the entire investment made by HTIL, through a top company, viz. CGP, in the Hutchison structure. In this case we need to apply the ‘look at’ test. In the impugned judgment, the High Court has rightly observed that the arguments advanced on behalf of the Department vacillated. The reason for such vacillation was adoption of ‘dissecting approach’ by the Department in the course of its arguments……….”
3.7.2 The Court then considered the legal position that whether HTIL possesses a legal right to appoint directors on the board of HEL and as such had some ‘property right’ in HEL. In this context, the Court stated that a legal right is an enforceable right by a legal process. In a proper case of lifting of ‘corporate veil’, it would be proper to say that the parent company and the subsidiary form one entity. But barring such cases, the legal position of any company incorporated abroad is that its powers, functions, and responsibilities are governed by the law of its incorporation. A company is a separate legal person even with one shareholder. Thus even though a subsidiary may normally comply with the request of a parent company, it is not just a puppet of a parent company. There is a difference between having a power or having a persuasive position. The power of persuasion cannot be constructed as a right in legal sense. The concept of ‘de facto’ control, which existed in Hutchison structure, conveys a state of being in control without any legal right to such a state. Based on this, the Court concluded that HTIL as group holding company has no legal right to direct its downstream companies in the manner of voting, nomination of directors and management rights.
3.7.3 Dealing with the power of a parent company on account of its shareholding in subsidiary, the Court concluded as under (Page 43, para 74):
“…..The fact that the parent company exercises shareholder’s influence on its subsidiaries cannot obliterate the decision-making power or authority of its (subsidiary’s) directors. They cannot be reduced to be puppets. The decisive criteria is whether the parent company’s management has such steering interference with the subsidiary’s core activities that subsidiary can no longer be regarded to perform those activities on the authority of its own executive directors.”
3.7.4 The Court then dealt with the need for executing an SPA and stated that exit is an important right of an investor in every strategic investment. Thus, a need for an SPA arose to re-adjust the outstanding loans between companies; to provide for standstill arrangements in the interregnum between date of SPA and completion of the transaction, to provide for seamless transfer and to provide for fundamental terms of price, indemnities, warranties, etc. SPA was entered into, inter alia, for smooth transaction of business of divestment by HTIL.
3.7.5 Dealing with the issue with regard to arrangements entered into with Essar Group, partner in HEL, as well as with other Indian companies holding 15% interest in HEL (minority investors), the Court stated that the minority investor has what is called a ‘participative’ right, which is subset of ‘protective rights’. These participative rights in certain instances restrict the powers of the shareholders with majority voting interest to control the operations or assets of the investee. Even minority investors are entitled to exit. This ‘exit right’ comes under ‘protective rights’. Considering the Hutchi-son structure in its entirety, the Court found that the participative and protective rights existed in Hutchison structure under various arrangements. Even without execution of SPA, such rights existed in the above arrangements and therefore, it would not be correct to say that such rights flowed from SPA. The Court also stated that it is important to note that ‘transition’ is a vide concept. It is impossible for the acquirer to visualise all events that may take place between the date of SPA and completion of acquisition. For all such things, an SPA may become necessary, but that does not mean that all the rights and entitlements flow from SPA.
3.7.6 After considering various agreements, arrangements and features of SPA, on the issue of extinguishment of property rights of HTIL, the Court concluded as under (Page 48, para 77):
“For the above reasons, we hold that under the HTIL structure, as it existed in 1994, HTIL occupied only a persuasive position/influence over the downstream companies qua manner of voting, nomination of directors and management rights. That, the minority shareholders/investors had participative and protective rights (including RoFR/TARs, call and put options which provided for exit) which flowed from the CGP share. That, the entire investment was sold to VIH through the investment vehicle (CGP). Consequently, there was no extinguishment of rights as alleged by the Revenue.”
Whether Hutchison structure is sham or tax-avoidant?
3.8 The Court also considered the issue as to whether the structure of Hutchison Group is a sham/device/tax-avoidant and whether it was pre-ordained to avoid the tax in question.
3.8.1 Dealing with the above issue, the Court stated that there is a conceptual difference between ‘pre-ordained transaction’ which is created for tax avoidance purposes and a transaction which evidences ‘investment to par-ticipate’ in India. Having mentioned this conceptual difference, the Court explained the concept of ‘investment to participate’ and stated that in order to find out whether a given transaction evidences a pre-ordained transaction in the sense indicated above or investment to participate, one has to take into account various factors enumerated earlier and again re-iterated them, such as duration of time during for which the holding structure existed, the period of business operations in India, generation of taxable revenue in India during the period of business operations in India, etc. referred to the para 3.5.4 above. Explaining the effect of these tests on the case on hand, the Court held as under (Pages 42, para 73):
“……Applying these tests to the facts of the present case, we find that the Hutchison structure has been in place since 1994. It operated during the period 1994 to 11-2-2007. It has paid income-tax ranging from Rs.3 crore to Rs.250 crore per annum during the period 2002-03 to 2006-07. Even after 11-2-2007, taxes are being paid by VIH ranging from Rs.394 crore to Rs.962 crore per annum during the period 2007-08 to 2010-11 (these figures are apart from indirect taxes which also run in crores). Moreover, SPA indicates ‘continuity’ of the telecom business on the exit of its predecessor, namely, HTIL. Thus, it cannot be said that the structure was created or used as a sham or tax-avoidant…..”
3.8.2 While taking the above view, the Court further observed as under (Page 42, para 73):
“……. In a case like the present one, where the structure has existed for a considerable length of time generating taxable revenues right from 1994 and where the Court is satisfied that the transaction satisfies all the parameters of ‘participation in investment’ then in such a case the Court need not go into the questions such as de facto control v. legal control, legal rights v. practical rights, etc.’’
The effect of introduction of CGP before entering into transaction
3.9 The main contention of the Revenue was that CGP was inserted at a late stage in the transaction in order to bring in a tax-free entity (or to create a transaction to avoid tax) and thereby, avoid tax on capital gains. Originally in this transaction, the transfer of shares of Array was contemplated. According to the Revenue, the Mauritius route was not available to HTIL in this transaction to get the benefit to avoid liability of tax.
3.9.1 Dealing with the above contention of the Revenue, the Court first noted that when a business gets big enough, it does two things. First, it reconfigures itself into corporate group by dividing itself multitude of commonly owned subsidiaries. Second, it causes various entities in the said group to guarantee each other’s debts. A typical large business corporation consists of sub-incorporates. Such division is legal and recognised by various laws including laws of taxation. If large firms are not divided into subsidiaries, creditors would have to monitor the enterprise in its entirety. Subsidiaries also promote the benefits of specialisation, permit creditors to lend against only specified division of the firm, reduce the amount of information that creditor needs together, etc. These are efficiencies inbuilt in a holding structure. As a group member, subsidiaries work together in many ways and they are financially inter-linked. The Court then further observed as under (Page 49, para 79):
“….. Such grouping is based on the principle of internal correlation. Courts have evolved doctrines like piercing the corporate veil, substance over form, etc. enabling taxation of underlying assets in cases of fraud, sham, tax avoidant, etc. However, genuine strategic tax planning is not ruled out.”
3.9.2 CGP was incorporated in 1998 in CI and it was in Hutchison structure since then. CGP was an investment vehicle. The transfer of Array had the advantage of transferring control over the entire shareholding held by downstream Mauritius companies, other than 3GSPL (GSPL). On the other hand, the advantage of acquisition of CGP share was to enable VIH to also indirectly acquire the rights and obligations of GSPL (the option to acquire further 15% interest in HEL). This was the reason for VIH to go by CGP route. Dealing with the argument with regard to non-availability of Mauritius route for getting the tax benefit, the Court stated that HTIL could have influenced its Mauritius subsidiaries (indirect) to sell the shares of Indian companies in which case no liability to pay tax on capital gain would have arisen. Thereafter, nothing prevented Mauritius companies from declaring dividend to ultimately remit money to HTIL and there is no tax on dividend in Mauritius in such cases. Thus, the Mauritius route was also available, but it was not opted because that route would not have given the control over GSPL. The Court then took the view that it was open to the parties to opt for any one of the two routes available to them. Accordingly, taking a holistic view, the Court held that it cannot be said that the intervened entity (CGP) had no business or commercial purpose.
Situs of CGP share
3.10 It was contended by the Revenue that under the Companies Law of CI, an exempted company was not entitled to conduct business in CI and therefore, CGP, being exempted company, cannot conduct business in CI and hence, the situs of CGP share existed where the ‘underlying assets are situated’, that is to say, India. While dealing with this contention, the Court stated that the Court does not wish to pronounce authoritatively on the Companies Law of CI. However, under the Indian Companies Act, 1956, the situs of the shares would be where the company is incorporated and where its shares can be transferred. In the present case, it has been asserted by VIH that the transfer of CGP share was recorded in CI and this has neither been rebutted in the order of the Department, nor traversed in the pleadings filed by the Revenue, nor controverted before the Court. Accordingly, the Court took the view that the situs of CGP share cannot be taken at the place where underlying assets stood situated and hence, the same is not in India.
Did VIH acquire 67% controlling interest in HEL?
3.11 It was the contention of the Revenue that VIH acquired 67% controlling interest (including option to acquire 15% interest in HEL held by AS/AG/IDFC through various companies). For this, the Revenue relied on various agreements, arrangements and features of SPA.
3.11.1 Dealing with the above contention of the Revenue, the Court noted that primary argument of the Revenue is based on the equation of ‘equity interest’ with the word ‘control’. On the basis of the shareholding test, HTIL can be said to have 52% control over HEL. By the same test, it can be equally said that the balance 15% stake in HEL remained with AS/AG/IDFC, who had through their respective group companies invested in HEL. This 15% stake comes under the options held by GSPL. Pending exercise, options are not management rights. At the highest, options can be treated as potential shares and they cannot provide right to vote or management or control. HTIL/VIH cannot be said to have a control over 15% stakes in HEL. It is for this reason that even FIBP gave its approval to the transaction by saying that VIH was acquiring or has acquired shareholding of 51.96% in HEL.
3.11.2 Dealing with the case of the arrangement with Indian JV partner Essar Group, the Court stated that it was entered into in order to regulate the affairs of HEL and to regulate the relationship of shareholders of HEL and continue the practice of appointment of directors on agreed basis. The articles of association of HEL did not grant any specific person or entity a right to appoint directors. Under the Company Law, the management control vests in the Board of Directors and not with the shareholders. Therefore, neither from SPA, nor from the terms sheets one can say that VIH had acquired 67% controlling interest in HEL.
3.11.3 Dealing with the contention of the Revenue that why VIH should pay consideration to HTIL based on 67% of the enterprise value of HEL, the Court stated that it is important to know that valuation cannot be the basis of taxation. The basis of taxation is profits or income or receipt. In this case, the Court is not concerned with the tax on income/profit arising from business operations but with the tax on transfer of rights (capital asset) and gains arisen therefrom. In the present case, VIH paid US $ 11.08 bn for 67% of the enterprise value of HEL and its downstream companies having operational licences. When the entire business or investment is sold, for valuation purposes, one may take into account the economic interest or realities. In this case, enterprise value is made-up of two parts, namely, the value of HEL, the value of CGP and companies between CGP and HEL. The Revenue cannot invoke section 9 of the Act on the value of underlying assets or consequence of acquiring a share of CGP. The price paid as a percentage of enterprise value ought to be 67% not because that was available in praesenti to VIH, but on account of the fact that competing Indian bidders would have had de facto access to the entire 67%, as they were not subject to limitation of FDI cap and therefore, they would have immediately encashed the call options.
Approach of the High Court and true nature of transaction
3.12 Dealing with the dissecting approach adopted by the High Court, the Court stated as under (Page 56, para 88):
“We have to view the subject-matter of the transaction, in this case, from a commercial and realistic perspective. The present case concerns an offshore transaction involving a structured investment. This case concerns ‘a share sale’ and not an asset sale. It concerns sale of an entire investment. A ‘sale’ may take various forms. Accordingly, tax consequences will vary. The tax consequences of a share sale would be different from the tax consequences of an asset sale. A slump sale would involve tax consequences which could be different from the tax consequences of sale of assets on itemised basis.”
3.12.1 Further, dealing with the question of transfer of controlling interest dealt with by the High Court, the Court state as under (Page 56, para 88):
“…….Ownership of shares may, in certain situations, result in the assumption of an interest which has the character of a controlling interest in the management of the company. A controlling interest is an incident of ownership of shares in a company, something which flows out of the holding of shares. A controlling interest is, therefore, not an identifiable or distinct capital asset independent of the holding of shares. The control of a company resides in the voting power of its shareholders and shares represent an interest of a shareholder which is made up of various rights contained in the contract embedded in the articles of association. The right of a shareholder may assume the character of a controlling interest where the extent of the shareholding enables the shareholder to control the management. Shares, and the rights which emanate from them, flow together and cannot be dissected…..”
3.12.2 The Court further stated that if owners’ structure is looked at by acquiring one share of CGP, VIH acquired control over various companies which gave it 52% shareholding control over HEL and indirect control over GSPL which gave VIH control over the options to acquire further 15% interest in HEL. These options continued to be held by GSPL and there is no transfer of them. The options have remained un-encashed with GSPL and therefore, even if options are treated as capital asset as held by the High Court, section 9 (1)(i) was not applicable as there was no transfer of such options. The Court also stated that the High Court wrongly viewed the transaction as acquisition of 67% of the equity capital of HEL. 67% of economic value is not equivalent to 67% of equity capital. If the High Court was right, then entire investment would have breached the FDI norms (which had imposed a sectorial cap of 74%) as in this case, Essar group held 22% of its stake through Mauritius Companies.
3.12.3 The Court also stated that as a general rule, in case of transaction involving transfer of shares lock, stock and barrel, such a transaction cannot be broken up in to separate individual components, assets or rights such as right to vote, right to participate in company meetings, management’s rights, controlling rights, control premium, brand licences and so on as shares constitute a bundle of rights. According to the Court, the High Court failed to examine the nature of various items such as non-compete agreement, control premium, call and put options, etc. The Court then took the view that the High Court ought to have examined entire transaction holistically. The transaction should be looked at as an entire package. Where the parties have agreed for a lump sum consideration without placing separate value for each of the items which go to make up the entire ‘investment in participation’, merely because certain values are included in the correspondence with FIPB which had raised the query, would not mean that the parties had agreed for the price payable for such individual items. The transaction remained a contract of outright sale of the entire investment for a lump sum consideration.
3.12.4 Finally, the Court did not agree with the dissecting approach adopted by the High Court and treated the transaction as sale of one share of CGP outside India and accordingly, it does not involve any gain arising on transfer of capital asset situated in India. Hence, capital gain in question is not chargeable to tax u/s.9(1)(i) of the Act and as such, question of deduction of TAS does not arise. Accordingly, the ultimate view of the High Court that the proceedings initiated by the Revenue Authorities did not lack jurisdiction and VIH was under an obligation to deduct TAS while making the payment in this case did not find favour with the Apex Court.
(to be concluded in the third part)
Note: Subsequent Developments
In the Finance Bill, 2012, certain amendments are proposed with retrospective effect from 1-4-1962 to effectively overturn the final position emerging from the above judgment. With these proposals, the stand of the Revenue Authorities with regard to the taxability of such gain, withholding tax obligation of the NR Payer and the jurisdiction of the Revenue Authorities in that respect is sought to be retrospectively confirmed by the legislative amendments.
We understand that on 20th March, 2012, the Apex Court has dismissed the review petition filed by the Government in Vodafone’s case.
2012 (27) STR 462 (Tri.-Del.) Ernst & Young Pvt. Ltd. vs. Commissioner of Service Tax, New Delhi
Since the appellants relied on CBEC Circular, there was no suppression of facts and extended period of limitation could not be invoked.
Facts:
The appellants were engaged in providing services such as management consultancy, manpower recruitment, consulting engineer services etc. During the period from 2001-2002 to 2004-2005, the appellants also provided compliance services i.e. assistance in relation to complying with the regulation of RBI, Foreign Investment Promotion Board etc., filing application for import export code, returns under Income Tax Act, returns with the office of Registrar of Companies, sales tax returns etc. The Revenue contended that such compliance services were covered under the management consultancy services and hence the appellant had short paid the service tax for the above mentioned period. The appellants put forth the following arguments:
Management covers both strategic and operational level functioning and would include tasks such as planning, organising, staffing, directing, controlling and co-ordinating. He argues that the primary purpose of complying with rules and regulations of the country is only a responsibility of Managers and does not fall within the functions which are considered to be the core of management functions. They placed reliance on the letter no. V/DGST/21-26MC/9/99 dated 28th January, 1999 which clarified that activities in relation to complying with rules and regulations would not be covered under the ambit of management consultancy services and also on TRU letter F. no. 341/21/99-TRU dated 28th January, 1999 clarifying that practitioners providing assistance in relation to ESI and PF regulations, would not be covered under the expression “management consultant”. They also relied on CBEC circular no. 1/1/2001-ST dated 27th June, 2001, wherein it was clarified that if the agency’s role is limited to the compliance of such act or regulations and not governed by any contractual relationship with the advisee company, then such services will not be covered under the scope of ‘management consultant’.” They further placed reliance on the Hon’ble Tribunal’s decision in case of CCE, Chennai vs. Futura Polyesters Ltd. 2011 (24) STR 751 (Tri.-Chennai) ruling that such services (compliance services) shall not be taxable u/s. 65(105)(zr). The appellants in response to the revenue’s argument of meaning of management services relied on the Supreme Court’s decision in case of CCE vs. Parle Exports (P) Ltd. 1988 (38) ELT 741 (SC), that it is laid down by the Hon’ble Supreme Court that a taxing entry should be understood in the same way in which these are understood in the ordinary parlance.
The revenue on the other hand contended that without the compliance services, the receiver of service could not have carried out its managerial function and contended that the definition of “management consultancy services” was extremely broad to cover any service directly or indirectly provided in connection with the management of any organisation in any manner and the ‘inclusive’ part of the definition though was specific, did not restrict the scope of the ‘means’ part of the definition. Further, since the appellants had not included the said details in the service tax returns, a suppression was alleged and therefore justified invoking of extended period of limitation.
Held:
Though compliance with laws was part of the responsibilities of management, such responsibility per se would not bring any activity within the phrase “in connection with the management of any organisation” as already decided in and Futura Polyesters (supra) was being followed. The decision of Parle Exports (supra) as relied upon by respondents, specified that a taxing entry should be understood in its common parlance. CBEC circular should not have been ignored by the adjudicating authority, which stated that compliance services were not management consultancy services.
Since the appellants had relied on the CBEC circular during the relevant period, the demand was held as barred by limitation also. If the public acted relying on such circulars and still the charge of suppression is slapped on them, it can be the worst travesty of justice. So, there was no case for invoking suppression.
Refund — Service tax paid subsequently found not payable due to threshold exemption — Refund denied on the ground that nothing was indicated about service tax exemption in the invoice — Held, refund cannot be denied.
In the given case, service tax was demanded from the appellant on the ground that the appellant had exceeded the limit provided for exemption. The appellant immediately paid service tax along with interest. Subsequently, it was discovered that the appellant was within the limits of threshold exemption and therefore the tax was not payable. Consequently, the appellant claimed refund. The claim was rejected by the Dept. on the ground that the fact of exemption was not mentioned in the invoice, and therefore, the value indicated in the invoice was inclusive of service tax element. The Department in support of its claim also stated that since service tax paid had been debited to Profit and Loss account, therefore it had to be held that service tax liability had been included in the value of services charged in the invoice.
Held:
The Tribunal held that the view taken by the Department is not appropriate. How can the appellant mention the amount of tax when the appellant was exempt? Moreover, mere non-mention of service tax exemption on the invoice does not mean that the appellant has collected any amount of service tax. Also, the fact that service tax paid was booked as expenditure does not mean the appellant was in fault. The order rejecting the refund claim of the appellant was held to be non-sustainable.
Limitation — Date of judgment or date of communication of order.
The dispute in the present case was in regards to refund claim, the relevant date for computing limitation period should be counted from the date of order of the Commissioner (Appeals), which was dispatched on 10-1-2007 and received on 27-1-2007 by the assessee or the limitation period will start from the date of communication of order.
The Commissioner (Appeals) upheld the order of the Asst. Commissioners observing that as per the records, the order had been handed over to the postal authority at GPO on 10-1-2007 and, hence, the same has to be taken as the date of dispatch and the words ‘date of the order’ in clause (ec) of the Explanation (B) to section 11B of Central Excise Act mean the date of dispatch and not the date of communication of the order.
On appeal, the Delhi Tribunal observed that the limitation period prescribed u/s.11B for filing the refund claim is one year from the relevant date. Unlike the judgments of the Courts or Tribunal which are either dictated in the open Court or are pronounced in the open Court and thus the date of the pronouncement and the date of communication to the affected parties are the same, in case of adjudication of any dispute by the Departmental adjudicating authorities or the Commissioner (Appeals), the judgments are not pronounced or dictated in presence of the parties but are sent by post and, thus, there would be a time gap between the date on which the order has been signed, the date of dispatch and the date on which the order is received by the assessee. The point of dispute, thus, in the case was as to whether the words ‘date of such judgment, decree order or direction’ used in clause (ec) of explanation (B) to section 11B refer to the date of signing of the order or date of dispatch order or the date of actual communication of the order to the assessee. It is clear that when some order of Court or an authority affects as assessee, the limitation would start from the date on which the order was communicated to the assessee or the date on which it was pronounced or published so that the party affected by it has reasonable opportunity of knowing the passing of such order and what it contains. The Apex Court in the case of CCE v. M. M. Rubber Co., 1991 (SS) ELT 289 (SC) held that the limitation period would start from the date of the communication of the order and not the date of signing of the order or the date of dispatch and as such with regard to the order passed by the Dept. adjudicating authority or the Commissioner (Appeals) the words ‘date of judgment’ have to be interpreted as the date of communication of the order. Thus, the refund claim was within time and the impugned order rejecting the same as time-barred, was not sustainable.
Evidence — Proof of execution of document — Will — Evidence Act, section 68.
The appellants’ application for grant of letter of administration had been dismissed on the ground that the Will had not been proved, therefore the same could not be looked into.
On appeal it was observed by the High Court that a will is required to be attested by two witnesses. Section 68 of the Evidence Act lays down the procedure for proof of a document, which is required by law to be attested. Section 68 of the Evidence Act reads as follows:
“Proof of execution of document required by law to be attested. If a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the Court and capable of giving evidence.”
Thus in view of the aforesaid provision, if a Will (which is required under the law to be attested by witness) is not proved by adducing evidence of attesting witness, the same cannot be looked into evidence, unless the appellant shows that the said attesting witnesses are not alive and/or not capable to give evidence. In the instant case, both attesting witnesses of the Will were alive. Under the said circumstance, it was held that the Will had not been proved in accordance with law and therefore the same cannot be looked into.
Revenue Recognition by Real Estate Developers — An Important carve-out in Ind-AS
The GN should be applied to all transactions in real estate commencing or entered into on or after 1st April 2012. The GN also gives an early adoption option, provided that it is applied to all transactions commencing on or were entered into on or after the earlier adoption date.
This GN mandates the application of POC method [as defined in Accounting Standard (AS) 7, Construction Contracts] in respect of real estate transactions where the economic substance is similar to construction-type contracts. It gives the following indicators for determining if the economic substance of the transactions is similar to construction type contracts:
(a) The period of such projects is in excess of 12 months and the project commencement date and project completion date fall into different accounting periods.
(b) Most features of the project are common to construction-type contracts, viz., land development, structural engineering, architectural design, construction, etc.
(c) While individual units of the project are contracted to be delivered to different buyers these are interdependent upon or interrelated to completion of a number of common activities and/or provision of common amenities.
(d) The construction or development activities form a significant proportion of the project activity.
The GN also specifies that the POC method is applied only when all the following conditions are fulfilled:
(a) All critical approvals necessary for commencement of the project have been obtained;
(b) When the stage of completion reaches a reasonable level of development. Rebuttable presumption — reasonable level is not achieved if the expenditure incurred on project costs is less than 25% of the construction and development costs;
(c) At least 25% of the estimated project revenues are secured by contracts or agreements with buyers; and
(d) At least 10% of the total revenue as per the agreements of sale or any other legally enforceable documents are realised at the reporting date.
Therefore, companies need to assess the eligibility of individual project based on the above parameters at each reporting period before any revenue can be recognised from them. Unless and until all the above conditions are met, revenue cannot be recognised from a project. In the calculation of stage of completion of 25% for point (b) above, only actual construction costs can be included and other costs (i.e., cost of land and development rights and borrowing costs) are excluded. Hence, the GN focusses on actual physical construction activities rather than costs. However, this calculation of stage of completion is only for determining if the project is an eligible project for revenue recognition. Once it is determined that a particular project is an eligible project, revenue can be recognised based on a POC calculation that is different from the calculation done for deciding eligibility. Put differently, revenue recognition can be based on a higher POC, calculated by taking total actual costs including cost of land and development rights. While this is not explicitly mentioned in the GN it is coming out from the illustration appended to the GN.
The GN also puts an additional overall restriction on recognition of revenue when there are outstanding defaults in payment by customers. It says that the recognition of revenue by reference to POC should not at any point exceed the estimated total revenue from eligible contracts. Eligible contracts for this purpose are those meeting the above four POC criteria plus where there are no outstanding defaults of the payment terms. The GN does not define ‘outstanding default’ and hence, a question arises if the ‘outstanding default’ to be determined as at the period ends only or post balance sheet payments should also be considered? For example, there was a default in payment by a customer before the period end, but the customer has paid and regularised the account post the period end before the financial statements approved. It is not clear from the GN whether this will be considered as an ‘outstanding default’ as at the period end.
Example
ABC Limited is in the business of real estate development and sale. On 1st April 2010, ABC started a project to construct and sell 100 flats of 1,000 sq.ft. each. Cost of construction, including directly attributable costs is Rs.3,000 per sq.ft. Cost of land and development right is Rs.30 crore. Actual figures for the year ended 31st March 2011 are given in Table 1:
|
Rs. in crores |
Sales — 30 flats at |
21.00 |
Collection from |
8.40 |
Actual construction |
15.00 |
Total revised |
17.00 |
POC for determining |
|
costs/total estimated |
46.88% |
|
|
POC for recognition |
|
costs/Total revised |
72.58% |
|
|
|
Rs. in crores |
Revenue to be |
|
(30 x 7,000 x 1,000 x |
15.24 |
|
|
Project costs [(30 + |
|
sq.ft./100,000 |
13.50 |
|
|
Work in progress (30 |
31.50 |
|
|
In case there were defaults in payment by 10 flat holders out of the total 30, the additional computation shown in Table 3 is to be done to determine if the revenue recognition of Rs.15.24 crore is appropriate.
|
Rs. in crores |
Revenue to be |
|
(as above) |
15.24 |
|
|
Estimated total |
|
eligible contracts |
|
(20 flats x 1,000 |
|
per sq.ft.) |
14.00 |
|
|
Work in progress (30 + 15 – 13.50) |
31.50 |
|
|
Since the revenue as per the POC workings of Rs.15.24 crore is higher than the estimated total revenue from eligible contracts of Rs.14 crore, revenue recognition should be restricted to Rs.14 crore and correspondingly cost of projects to be recognised in the profit and loss should also be adjusted.
This guidance note will enhance consistency in the accounting practices of real estate developers and in particular the application of the percentage completion method. This however remains a very important ‘carve-out’ and will have a significant impact on companies who wish to prepare and report their financial statements under IFRS.
Editor’s Note: It is understood that the Guidance Note on Recognition of Revenue by Real Estate Developers has been finalised and is expected to be issued shortly.
Bharat Heavy Electricals Ltd. (31-3-2011)
Depreciation
At erection/project sites: The cost of roads, bridges and culverts is fully amortised over the tenure of the contract, while sheds, railway sidings, electrical installations and other similar enabling works (other than purely temporary erections, wooden structures) are so depreciated after retaining 10% as residual value.
Indian Oil Corporation Ltd. (31-3-2011)
Depreciation
Expenditure on items like electricity transmission lines, railway sidings, roads, culverts, etc. the ownership of which is not with the company are charged off to revenue in the year of incurrence of such expenditure.
Bharat Petroleum Corporation Ltd. (31-3-2011)
Fixed assets
Expenditure incurred generally during construction period of projects on assets like electricity transmission lines, roads, culverts, etc. the ownership of which is not with the company are charged to revenue in the accounting period of incurrence of such expenditure.
Ambuja Cement Ltd. (31-12-2010)
Depreciation
The cost of fixed assets, constructed by the company, but ownership of which belongs to government/local authorities, is amortised at the rate of depreciation specified in Schedule XIV to the Companies Act, 1956.
Expenditure on power lines, ownership of which belongs to the State Electricity Boards, is amortised over the period as permitted in the Electricity Supply Act, 1948.
Expenditure on marine structures, ownership of which belongs to the Maritime Boards, is amortised over the period of agreement.
ACC Ltd. (31-12-2010)
From Significant Accounting Policies
Depreciation
Capital assets whose ownership does not vest in the company have been depreciated over the period of five years.
Tata Steel Ltd. (31-3-2011)
Depreciation
Capital assets whose ownership does not vest in the company is depreciated over their estimated useful life or five years, whichever is less.
Ultratech Cement Ltd. (31-3-2011)
Depreciation
Assets not owned by the company are amortised over a period of five years or the period specified in the agreement.
From Fixed Assets Schedule
Fixed assets includes assets costing Rs.238.63 crores (Previous year Rs.150.94 crores) not owned by the company.
NHPC Ltd. (31-3-2011)
Fixed assets
Depreciation
Capital expenditure referred to in Policy 2.3 is amortised over a period of five years from the year in which the first unit of project concerned comes into commercial operation and thereafter from the year in which the relevant asset becomes available for use.
From Notes to Accounts
During the year the company has received the opinion from the Expert Advisory Committee of the Institute of Chartered Accountants of India (EAC of ICAI) and as per opinion of EAC, expenditure incurred for creation of assets not within the control of company should be charged to Profit & Loss account in the year of incurrence itself. The company has represented to the EAC of ICAI that such expenditure, being essential for setting up of a hydro project, should be allowed to be capitalised. Pending receipt of further opinion/communication from the EAC, the accounting treatment as per existing accounting practices/ policies has been continued.
From Auditor’s Report
Further to our comments in the Annexure referred to in Para 3 above, without qualifying our report, we draw attention to (a) ……., (b) ……. and (c) Note No. 12 (Schedule 24 — Notes to Accounts) regarding having referred the issue of capitalisation of expenditure incurred for creation of assets (enabling assets) not within the control of the company, to Expert Advisory Committee of the Institute of Chartered Accountants of India.
NTPC Ltd. (31-3-2011)
Fixed assets
Depreciation
Capital expenditure on assets not owned by the company is amortised over a period of four years from the month in which the first unit of project concerned comes into commercial operation and thereafter from the month in which the relevant asset becomes available for use. However, similar expenditure for community development is charged off to revenue.
From Notes to Accounts
During the year the company has received an opinion from the Expert Advisory Committee of the Institute of Chartered Accountants of India on accounting treatment of capital expenditure on assets not owned by the company wherein it was opined that such expenditure are to the charged to the statement of Profit & Loss Account as and when incurred. The company has represented that such expenditure being essential for setting up of a project, the same be accounted in line with the existing accounting practice and sought a review. Pending receipt of communication regarding the review, existing treatment has been continued as per existing accounting policy.
(2011) 131 ITD 263 DCIT v. Jindal Equipment Leasing & Consultancy Services Ltd. A.Y.: 2003-04. Dated: 25-2-2011
Facts:
The assessee-company sold shares held in Nalwa Sponge Iron Ltd. (NSIL) to three persons at Rs.12 per share. The book value of shares was estimated to be Rs.254.40 at the time of sale. The AO took the view that the sale of shares was a device to pass on undue monetary benefit to the persons, who according to the AO were related persons. Based on that the AO recomputed capital gain by adopting the fair market value of the shares which was Rs.254.50. He thus made additions of Rs.6,06,27,500 as undisclosed sale consideration. On appeal to the CIT(A) by the assessee, it was held that the AO can’t alter the computation of capital gain without any evidence.
The Department filed appeal against the order of the CIT(A).
Held:
Section 48 contemplates ascertainment of ‘full value of consideration received or accruing as a result of the transfer of capital asset’. The word received means actually received and word accruing means the debt created in favour of the assessee as a result of transfer. In any case, both the terms are used as actual and not estimated amounts. The erstwhile provision does not contain words ‘fair market value’, thus addition made to sale consideration by the AO is not in accordance with the section 48 of the Act.
As regards the objection raised by the AO regarding related party, there was no evidence to prove that transferees were related to the directors of the company. However in any case transferees could not be said to be related to the company as company does not have any corporeal existence.
Hence it was held that the transactions were conducted with independent parties.
Also it is commonly accepted law that the onus to prove otherwise than the fact lies on the person who alleges. In the instant case even though the transaction had taken place at values far less than the arm’s-length price, in absence of any evidence purporting receipt of more consideration than stated, computation of capital gain made by the assessee cannot be altered by the AO.
In order to show that the transaction was colourable device intended to evade tax, the Revenue must prove understatement of consideration. They should have basic material and evidence in its hand. In the instant case, the AO relied upon hypothetical sale price without any evidence, which does not prove that there is more consideration passed than what is disclosed.
Held that as there was no evidence on record that transferees were related to directors of the assessee-company and that the assessee had received amount more than stated consideration, computation of capital gain can be made only on the basis of consideration actually received.
(2012) TIOL 44 ITAT-Mum. Mithalal N. Sisodia HUF v. ITO A.Y.: 2005-06. Dated: 5-8-2011
Facts:
The assessee HUF in its return of income declared long-term capital gains on sale of shares. The assessee claimed that it had purchased a flat and therefore LTCG was exempt u/s.54F of the Act. The LTCG arose on sale of 6000 shares of a company known as Poonam Pharmaceuticals Ltd. (P). The shares had been purchased by the assessee on 8-4-2003 for a sum of Rs.14,320 through V. K. Singhania, a stock-broker in Calcutta. The purchase price was claimed to have been paid in cash. The shares were sold in 3 tranches in August, Sept and Nov 2004 for a total consideration of Rs.17,87,450. The shares were claimed to have been sold through Shyamlala Sultania, stock-broker in Calcutta. The delivery of shares was received and given via Demat account of the assessee. In the course of assessment proceedings, the AO with a view to verify the transactions of purchase and sale of shares wrote a letter to P which was returned unserved with a remark ‘Not Known’. The broker through whom the shares were claimed to have been sold stated that the assessee was not his client and during the previous year he had not done any transactions in shares of P. The Calcutta Stock Exchange confirmed that M/s. V. K. Singhania had not done any transaction in scrip P in the physical form in the online trading system of Calcutta Stock Exchange.
The AO, in the course of assessment proceedings, examined the assessee u/s.131 and recorded statement of the Karta of the assessee. In the statement it was stated that the shares were purchased and sold on the advice of one Mr. R who was resident of Mumbai. Upon being confronted with the materials collected by the AO, he stated that he had purchased and sold shares and had nothing more to say. He then sought adjournment and before the next date of hearing filed a letter surrendering the amount of exemption claimed on the ground that due to his age he cannot go to Calcutta to verify the details, he has not concealed any income nor filed wrong particulars, but with a view to buy peace and avoid litigation the surrender was being made by revising return of income (though time for filing revised return u/s.139(5) had expired) and taxes were paid. The AO made a reference to investigation conducted by Investigation Wing of the Department and pointed modus operandi followed by various persons claiming LTCG. The AO held that the assessee had brought into his accounts unaccounted money and paid less tax by claiming the sum brought in the books as LTCG.
Subsequently, the AO levied penalty on the ground that the assessee had concealed particulars of income and only when investigation was carried out the assessee surrendered the amount and offered the sale proceeds of shares as Income from Other Sources.
Aggrieved, the assessee preferred an appeal to the CIT(A) who confirmed the order of the AO.
Aggrieved, the assessee preferred an appeal to the Tribunal.
Held:
The Tribunal noted the sequence of events and observed that the assessee had shown the shares in its balance sheet as on 31-3-2004 and the same was accepted by the Revenue. It also noted that the shares were transferred to the Demat account of the assessee. Sale consideration was received by banking channels. The Tribunal observed that the enquiry by the AO from the Calcutta Stock Exchange that the transaction was not done through the Exchange cannot be taken as basis to conclude that the transactions of sale of shares was not genuine. It observed that denial of Shyamlal Sultania, through whom shares were sold is a circumstance going against the assessee. The Tribunal held that from the sequence of events it cannot be said with certainity that the claim made by the assessee was bogus. It noted that the surrender was made to buy peace and avoid litigation. It was because of his inability to go to Calcutta, due to old age, to collect necessary evidence that the surrender was made. The AO had not brought on record any independent material to show that the assessee was part of any investigation referred to in the assessment order. The Tribunal held that imposition of penalty would depend on facts and circumstances of the case. On the present facts, the Tribunal held that the explanation offered by the assessee was bona fide. The Tribunal directed that the penalty imposed be deleted.
The appeal filed by the assessee was allowed.
(2012) TIOL 25 ITAT-Bang.-SB Nandi Steels Ltd. v. ACIT A.Y.: 2003-04. Dated: 9-12-2011
Facts:
The assessee-company was engaged in the business of manufacture/production of iron and steel. In the proceedings u/s.143(3) r.w.s. 148 the Assessing Officer (AO), relying on the decision of the Supreme Court in the case of Killick Nixon & Co. v. CIT, (66 ITR 714) (SC), held that the brought forward business loss and unabsorbed depreciation cannot be set off against income from capital gains arising on sale of land and building used for the purposes of the business. He noted that the SC has in the said case held that only income which is earned by carrying on business is entitled to be set off. Accordingly, he denied the set-off of gains arising on sale of land and building which were computed under the head ‘Capital Gains’ against brought forward business loss.
Aggrieved, the assessee preferred an appeal to the CIT(A) who confirmed the order of the AO. Aggrieved, the assessee preferred an appeal to the Tribunal.
Before the Division Bench, the assessee relied upon the decision of the Bangalore Bench of the Tribunal in the case of Steelcon Industries (P) Ltd. v. ITO, ITA No. 571 (Bang.) 1989, A.Y. 1985-86, order dated 27-12- 2004) wherein the issue was decided in favour of the assessee by following the decisions of the SC in the cases of CIT v. Cocanada Radhaswami Bank, (55 ITR 17) (SC) and CIT v. Chugandas & Co., (55 ITR 17) (SC). The Division Bench noticed that there is another judgment of the SC in the case of CIT v. Express Newspapers Ltd., (53 ITR 250) wherein the SC held that capital gains are connected with the capital assets of the business and therefore, it cannot make them the profit of the business and cannot be set off against the brought forward business loss. This decision of the SC was not considered by the Tribunal in the case of Steelcon Industries (P) Ltd (supra) and therefore, the Division Bench felt that the decision in the case of Steelcon Industries (P) Ltd. (supra) requires reconsideration by a Special Bench. The President constituted a Special Bench for disposal of the following two grounds of the appeal filed by the assessee —
“(1) That the learned CIT(A) erred in law and on facts that the appellant is not entitled to set off carry forward business loss of Rs.39,99,652 against the long-term capital gain arising on sale of land used for the purpose of business.
(2) That the authorities below ought to have appreciated that there is no cessation of business and the appellant is entitled to set off the carry forward business loss.”
Held:
Section 72 permits carry forward of business loss to subsequent assessment years and allows it to be set off against profits & gains, if any, of any business or profession carried on by the assessee and assessable for the relevant assessment year. The term ‘profits and gains of business or profession’ means income earned out of business carried on by the assessee and not any income which is in some way connected to the business carried on by the assessee.
SB did not agree with the contention of the assessee that the assets sold by the assessee were business assets. It held that these were un-disputedly capital assets and capital receipts are not taxable, nor are the capital payments deductible from the income of the assessee. The capital is to be used for the purpose of carrying on the business of the assessee and it shall remain in the business of the assessee till it is either converted into stock-in-trade or is disposed of. The income earned by the assessee by carrying on the business by use of stock-in-trade only is the business income of the assessee.
SB held that the decision of the SC in Express Newspapers Ltd. (supra) is squarely applicable to the facts of the present case and that the Coordinate Bench of the Tribunal in the case of Steelcon Industries Pvt. Ltd. (supra) has wrongly placed reliance upon the decision of the Apex Court in the cases of United Commercial Bank Ltd. and M/s. Cocanada Radhaswami Bank Ltd. It held that the gains arising on sale of land and building were not eligible for set-off against the brought forward business loss u/s.72.
These grounds of appeal filed by the assessee were decided against the assessee.
PART A : Decision of the C.I.C.
Following was the information sought by the Appllicant and the reply given by the PIO.
The PIO has refused to give the information claiming exemption under Section 8(1)(j) of the RTI Act. An appeal was filed. The PIO (the respondent) stated that third party information could not be disclosed without taking the views of the third party and relied upon the case of Suhash Chakma vs. CIC in W.P.(C) No. 9118 of 2009. The respondent also stated that the present whereabouts of the third parties are not maintained by the Ministry.
The Commission ruled that if the third party’s address could not be located it did not mean the citizen’s right to information would disappear. Section 11 is a procedural requirement that gives third party an opportunity to voice an objection in releasing the information.
The Commission then held that in section 11(1) it is clearly stated that submission of third party shall be kept in view while taking a decision about disclosure of information. Section 11(1) dealt with the information ‘which relates to or has been supplied by a third party and has been treated as confidential by that third party’. Thus the procedure of Section 11 comes into effect if the PIO believes that the information exists and is not exempt, and the third party has treated it as confidential. The PIO must send a letter to the third party within 5 days of receipt of the RTI application. It only gives the third party an opportunity to voice its objections to disclosing information. The PIO has to keep these objections in mind and the denial of information can only be on the basis of exemption under Section 8(1) of the RTI act. As per Section 11(3), the PIO has to determine whether the information is exempt or not and inform the appellant and the third party of his decision. If the third party wishes to appeal against the decision of the PIO, he can file an appeal under Section 19 of the Act as per the provision of Section 11(4).
The Commission then explained whether the information sought was exempt u/s 8(1)(j). As per the Commission, two points need to be satisfied for the information to qualify for exemption:
(i) It must be Personal Information.
The phrase ‘disclosure of which has no relationship to any public activity or interest’ means that the information must have been given in the course of a public activity.
Various Public authorities in performing their functions routinely ask for ‘personal’ information from citizens, and this is clearly a public activity. When a person applies for a job, or gives information about himself to a Public authority as an employee, or asks for a permission, licence or authorisation or passport, all these are public activities. Also, when a citizen provides information in discharge of a statutory obligation, that too is a public activity.
(ii) To check ‘whether the State invades the privacy of an individual’.
According to the Commission, where the State routinely obtains information from citizens, this information is in relationship to a public activity and will not be an intrusion on privacy.
The Commission noted that the Parliament has not codified the right to privacy so far, hence in balancing the Right to Information of citizens and the individual’s Right to Privacy the citizen’s Right to Information would be given greater weightage. The Supreme Court of India has ruled that citizens have a right to know about charges against candidates for elections as well as details of their assets, since they desire to offer themselves for public service. It is obvious then that those who are public servants cannot claim exemption from disclosure of charges against them or details of their assets. Given our dismal record of mis-governance and rampant corruption which colludes to deny Citizens their essential rights and dignity, it is in the fitness of things that the Citizen’s Right to Information is given greater primacy with regard to privacy.
In view of above, the Commission did not accept the PIO’s contention that information provided by an applicant when applying for passport was exempt under Section 8(1)(j) of the RTI Act. [Mr. Anand Narayan Devghare vs. PIO, Regional Passport Office, Mumbai: CIC/SG/ A/2012/000794/18743 dated 4th May 2012.]
(2011) 142 TTJ 358 (Hyd.) Four Soft Ltd. v. Dy. CIT A.Y.: 2006-07. Dated: 9-9-2011
Facts:
The assessee-company had provided corporate guarantee to ICICI Bank UK on behalf of its subsidiary. The TPO held that guarantee is an obligation and if the principal debtor falls to honour the obligation, the guarantor is liable for the same and, hence, the TPO determined a commission @ 3.75% as the ALP under the CUP method on the basis of the commission charged by the ICICI Bank as benchmark.
Held:
The Tribunal held that no TP adjustment is required in respect of corporate guarantee transaction done by the assessee-company. The Tribunal noted as under:
(1) The TP legislation provides for computation of income from international transaction as per section 92B.
(2) The corporate guarantee provided by the assessee-company does not fall within the definition of international transaction.
(3) The TP legislation does not stipulate any guidelines in respect of guarantee transactions.
(4) In the absence of any charging provision, the lower authorities are not correct in bringing aforesaid transaction in the TP study. The corporate guarantee is very much incidental to the business of the assessee and hence, the same cannot be compared to a bank guarantee transaction of the bank or financial institution.
(2011) 142 TTJ 252 (Visakha) Dredging Corporation of India Ltd. v. ACIT A.Ys.: 2006-07 to 2008-09. Dated: 25-7-2011
Facts:
The assessee was given refund while processing the return u/s.143(1) and further refund was given after assessment u/s.143(3). In reassessment proceedings u/s.147, the refund amount got reduced and, therefore, the excess refund given earlier became collectible from the assessee. The Assessing Officer levied interest u/s.234D on such excess refund amount. The learned CIT(A) held that the interest u/s.234D is not chargeable in the hands of the company in reassessment proceedings.
Held:
The Tribunal upheld the CIT(A)’s order. The Tribunal noted as under:
(1) On a plain reading of section 234D, it is noticed that the interest u/s.234D is leviable only if the refund granted to the assessee u/s.143(1) of the Act becomes collectible in the order passed under regular assessment.
(2) As per section 2(40) read with Explanation to section 234D, ‘regular assessment’ is defined to mean assessment order passed u/s.143(3) or u/s.144 or where the assessment has been made for the first time u/s.147 or u/s.153A. Thus, reassessment proceedings u/s.147 after completion of the assessment u/s.143(3) is excluded from the purview of ‘regular assessment’.
(3) Such exhaustive definition of ‘regular assessment’ when considered in the light of the fact that in the appellant-company’s case the assessment u/s.147 has been made not for the first time, but after the completion of an assessment u/s.143(3), the same cannot be termed as regular assessment and, consequently, the provisions of section 234D cannot apply in the appellantcompany’s case.
(2011) 142 TTJ 86 (Pune) Drilbits International (P.) Ltd. v. Dy. CIT A.Y.: 2006-07. Dated: 23-8-2011
(b) Section 92C of the Income-tax Act, 1961 read with Rules 10B(1)(a), 10B(1)(c) and 10B(1)(e) of the Income-tax Rules, 1962 — Transfer pricing — Most appropriate method for computing arm’s-length price — Rates charged to the third parties in the domestic market cannot be compared with the rates charged to AE in the export market — There are various factors which affect the pricing of the product in the domestic market vis-à-vis the export market — Hence the CPM method is not appropriate method for determining the ALP — CUP or TNMM was the most appropriate method for determining ALP.
Facts:
(a) Depreciation u/s.32(1)(iii)
The assessee acquired the unit of G on slump-sales basis consisting of all its assets which included intellectual property rights such as designs, drawings, manufacturing processes and technical know-how for a consideration of Rs.17.01 crore. The registered valuer valued the knowhow acquired at Rs.2.41 crore and royalty payable for use of brand name, trademark, logo, etc. at Rs.2.67 crore. The Assessing Officer disallowed depreciation on the same on the basis that as per agreement, the assessee has not purchased any know-how from G and the assessee is entitled to use trademark, logo and brand name of G free of cost for a period of three years.
Held:
The Tribunal, relying on the decisions in the following cases, allowed the assessee’s claim:
(a) Amway India Enterprises v. Dy. CIT, (2008) 114 TTJ 476 (Del.) (SB)/(2008) 4 DTR (Del.) (SB) (Trib.) 1/(2008) 111 ITD 112 (Del.) (SB)
(b) Hindustan Coca Cola Beverages (P.) Ltd. v. Dy. CIT, (2010) 43 DTR (Del.) 416
The Tribunal noted as under:
(1) It is an undisputed fact that the assessee has paid the agreed consideration of Rs. 17.01 crore as a lump-sum amount to purchase the unit in its entirety i.e., the unit consisting of items like trademark, logo and brand name, designs, drawings, manufacturing processes and technical know-how.
(2) Simply because, in the agreement to purchase, it is mentioned that the use of all items like trademark, logo and brand name is allowed to the assessee for three years by G free of cost, it does not mean that there is no value for these items. The agreement between the seller and the purchaser does not put restriction on the right of the purchaser to record the asset at its fair value in its books.
(3) The apportionment of the lump-sum amount amongst the various assets and rights has to be made and which has been done in the present case as per the valuer’s report. The approved valuer has valued the know-how acquired at Rs.2.41 crore and royalty payable for use of brand name, trademark and logo at Rs.2.67 crore.
(4) The Special Bench of the Tribunal in the case of Amway India (supra) has held that if the software is useable/used for more than two years, it is a capital expenditure and if it is for less than two years, it is revenue expenditure. Thus, following the ratio laid down therein, since the assessee had purchased the use of brand name, trademark, logo for three years and similarly, the intellectual property right such as design, drawings, manufacturing processes and technical know-how in respect of the products manufactured by the unit was acquired, the expenditure incurred in this regard as valued by the approved valuer is capital expenditure on which the claim of depreciation was allowable.
Facts:
(b) Computation of ALP
During the year, the assessee-company sold goods to its associate enterprises (AEs). Initially, while filing the return of income, the assessee had adopted the comparable uncontrolled price method (CUP) for determining the arm’s-length price (ALP) in respect of exports transactions undertaken with the AE. Thereafter, in the proceedings before the learned TPO, the assessee contended that even as per transactional net margin method (TNMM), the transactions of export of goods are at ALP. The revised Form No. 3CEB was filed and details of the company selected as comparable were furnished. The learned TPO did not agree with the submissions of the assessee and held that the CUP method and TNMM are not applicable for determining the ALP. The learned TPO has considered the gross margin earned by the assessee in the export segment visà- vis gross margin earned in the domestic segment. Accordingly, he has held that the gross margin in the domestic segment is much higher than the margin earned in the export segment and, hence, he made an addition of Rs.58.54 lakh.
Held:
The Tribunal held that the TPO was not justified in adopting CPM and in comparing the gross margin in export segment vis-à-vis gross margin in domestic segment of the assessee without appreciating that the CUP or TNMM was the most proper method for determining the ALP. The TPO was directed to accept the claim of the assessee regarding the ALP based on TNMM which method has been accepted in the succeeding year.
The Tribunal noted as under:
(1) Rates charged to the third parties in the domestic market cannot be compared with the rates charged to AE in the export market. There are various factors which affect the pricing of the product in the domestic market vis-à-vis the export market and, therefore, the price cannot be compared. The assessee has to bear substantial marketing cost in the domestic segment, there is no bad debt risk in respect of the sales made to the AE and no product liability risk. Besides, it is also a material aspect that the assessee has to bear product liability risks like retention money, bank guarantee, warranty, etc. in the domestic segment, but such risks are not to be borne in the export segment. Due to these factors, the assessee has to charge higher rates in the domestic segment and, therefore, comparison of the rates of the products in the domestic segment and the export segment is not justified.
(2) For the A.Y. 2007-08, the assessee has adopted TNMM for determining the ALP and the TPO has accepted the same. There is substance in the alternative submissions of the authorised representative that TNMM can also be accepted during the year for determining the ALP.
CENVAT credit availed on capital goods — Goods destroyed by fire after availment and utilisation of such credit — Insurance claim paid by the insurance authority covered central excise duty — Revenue sought to recover the CENVAT — Held, Reversal can be sought only if the availment irregular — Appeal dismissed.
The respondent bought certain capital goods on payment of excise duty on the same. The duty portion was claimed as CENVAT credit and thereafter, the same was utilised for the discharge of duty liability on goods cleared. Five years thereafter, the goods got destroyed in fire. The respondent purchased new capital goods and put forward claim to the insurance company in terms of the insurance policy subscribed by them. The insurance company reimbursed the cost of goods including the excise duty element on the same. The Revenue directed the assessee to reverse the CENVAT credit on the ground that the assessee had double benefit. The substantial questions of law were
(a) whether the assessee was eligible to claim credit on goods which were claimed to be destroyed in fire and for which the insurance company had compensated equivalent value of goods along with duty, and
(b) whether the Tribunal’s order encouraged unjust enrichment.
Held:
Citing the judgment in case of CCE, Pune v. Dai Ichi Karkaria Ltd. reported in (1999) 112 ELT 353 (SC), the Court held that there is no provision in the rules which provides for the reversal of the credit by the Excise Authorities except where it has been irregularly taken. Merely because the insurance company paid the assessee the value of goods including the excise duty paid, that would not render the availment of the CENVAT credit wrong or irregular. The appeal of the Department was dismissed.
Merger — Review of High Court Order — SLP against the same dismissed by SC — No Review possible — Constitution of India Act, 136 and 226.
The applicant filed a review petition seeking to review the order passed by a Division Bench of the High Court. Against the said order SLP was preferred to the Apex Court, but the same was dismissed by SC. Subsequently, review of the order of High Court was sought.
The Court while dismissing the review petition held that it is not possible to review the order of the High Court which has been confirmed by the SC. The review petition was not maintainable.